Opinion
July 15, 1994
Appeal from the Erie County Court, D'Amico, J.
Present — Pine, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: A defendant has a fundamental right to be present at material stages of the trial, including the sidebar questioning of a prospective juror when the purpose of the questioning is "intended to search out a prospective juror's bias, hostility or predisposition to believe or discredit the testimony of potential witnesses" (People v Antommarchi, 80 N.Y.2d 247, 250, rearg denied 81 N.Y.2d 759; see, People v. Sloan, 79 N.Y.2d 386, 392). Here, the sidebar questioning of the prospective juror, who thereafter was seated as a juror, was a material stage of the trial, but defendant made a voluntary and intelligent waiver of his right to be present (see, People v Parker, 57 N.Y.2d 136, 141). The trial court offered defendant the alternatives of placing "private discussion[s]" with prospective jurors on the record in the absence of the other jurors, or waiving his presence at such discussions, and both defendant and defense counsel chose the latter alternative (see, People v Dennis, 206 A.D.2d 843 [decided herewith]). We reject defendant's contention that the court was under an obligation, before accepting the waiver, to recite the reasons for defendant's right to be present (see, People v. Antommarchi, supra).
Defendant's remaining contention is not preserved for review (see, CPL 470.05), and we decline to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).