Opinion
September 26, 1994
Appeal from the Supreme Court, Queens County (Flaherty, J.).
Ordered that the judgment is modified, on the law, by vacating the sentences imposed for attempted robbery in the first degree, attempted robbery in the second degree, and criminal possession of a weapon in the second degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on those convictions.
We find no merit to the defendant's contention that he was entitled to production of the Probation Department's presentence report for a codefendant who testified on behalf of the prosecution. After an in-camera review of the report, the trial court provided the defendant with the codefendant's statements regarding the subject incident. The court properly determined that the remaining material was not relevant to the defendant's trial, and that the defendant had no right to its production (see, CPL 240.45; People v. Figueras, 199 A.D.2d 409).
The defendant also claims that he was denied his right to be present during a material stage of the trial when a sworn juror was questioned about possible disqualification and was thereafter excused. Considering the nature and scope of the inquiry, the defense counsel's presence was sufficient to safeguard the defendant's right to be present (see, People v. Torres, 80 N.Y.2d 944, 945, affg 174 A.D.2d 586; People v. Darby, 75 N.Y.2d 449, 453; People v. Mullen, 44 N.Y.2d 1).
Finally, as the People concede, the sentencing court erroneously concluded that the defendant was a persistent felony offender, when he should have been adjudicated a second violent felony offender (see, Penal Law § 70.04, 70.06 Penal, 70.10 Penal). The matter is therefore remitted for resentencing on the attempted robbery and weapon possession counts. Balletta, J.P., O'Brien, Copertino and Florio, JJ., concur.