Opinion
Decided December 18, 1996
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 23, 1996, which affirmed a judgment of the Supreme Court (Dominic R. Massaro, J.), rendered in Bronx County upon a verdict convicting defendant of manslaughter in the first degree, criminally negligent homicide and criminal possession of a weapon in the third degree.
Defendant's conviction arose out of the shooting death of the victim, with whom he was arguing. According to the prosecution, during the course of the argument, defendant intentionally shot the victim. The defense theory of the case was that during the argument, the victim dropped a gun, which defendant picked up, and as he tried to strike the victim with it, the gun accidentally discharged, resulting in the victim's death.
On appeal, defendant contended that he was denied his right to be present during a material stage of his trial when prospective jurors were questioned in his absence, and that the verdict was repugnant.
The Appellate Division concluded that defendant's claim that the verdict was repugnant was not preserved since no such objection was taken to the verdict before discharge of the jury; that, in any event, the verdict was not repugnant since the jury found that defendant intended to cause serious physical injury to the victim by hitting him in the head with a gun and failed to perceive the risk that the gun would fire on impact; that the acquittal on the count of criminal possession of a weapon in the second degree was consistent with the instruction, given at defendant's request, which defendant was not entitled to, that intent to use the gun unlawfully against another required an intent to fire the weapon; that defendant's claim that the court erred in failing to submit the homicide counts in the alternative was waived, having taken the benefit of the favorable charge; that defendant's claim that he was excluded from sidebar conferences during questioning of potential jurors in open court was unsupported by the record; that it was defendant's obligation to generate a proper record for review; and that, moreover, defendant could not have made any meaningful contribution by his presence at the interviews of these prospective jurors.
Andrea G. Hirsch, New York City, for appellant.
Robert T. Johnson, District Attorney of Bronx County, Bronx (Patsy Bonanno of counsel), for respondent.
People v Mason, 227 A.D.2d 289, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed. Defendant was convicted of manslaughter in the first degree, criminally negligent homicide, and criminal possession of a weapon in the third degree, and sentenced to concurrent terms of 8 to 16 years, 2 to 4 years and 3 1/2 to 7 years.
Although defendant initially argued that he had been deprived of his right to be present at a material stage of trial, defendant now concedes that the Appellate Division correctly found that he had not been erroneously excluded from sidebar conferences during questioning of potential jurors. Defendant's remaining claim of error is unpreserved.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.