Opinion
November 19, 1993
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Pine, J.P., Fallon, Boomer, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: During jury selection in defendant's trial on the charge of murder in the second degree, the court conducted a side-bar conference with a potential juror outside defendant's presence. In People v Antommarchi ( 80 N.Y.2d 247, 250, rearg denied 81 N.Y.2d 759), the Court of Appeals held that the court may not conduct such side-bar conferences to "explore prospective jurors' backgrounds and their ability to weigh the evidence objectively unless defendant is present". Here, however, jury selection was conducted prior to the decision in Antommarchi and, consequently, there was no statutory violation of defendant's right to be present at a material stage of his trial (see, CPL 260.20) as that right was understood prior to October 27, 1992 (see, People v Mitchell, 80 N.Y.2d 519, 529; People v Burgos, 195 A.D.2d 978). Moreover, because the questioning of the prospective juror "involved matters of general bias or hostility", there was likewise no constitutional violation (People v Mitchell, supra, at 529). Additionally, although defendant was not present at the Sandoval hearing (see, People v Sandoval, 34 N.Y.2d 371), reversal is not required. The court's Sandoval ruling was entirely favorable to defendant; thus, defendant's presence at the hearing would have been "wholly `superfluous'" (People v Smith, 82 N.Y.2d 254, 268; see, People v Colucci, 198 A.D.2d 825 [decided herewith]). Finally, we find that the sentencing court did not abuse its discretion in imposing a term of 8 1/3 years to 25 years upon defendant's conviction for manslaughter in the first degree.