Opinion
May 30, 1996
Appeal from the Supreme Court, New York County (Richard Andrias, J.).
Defendant affirmatively waived any right he had to be present at sidebar voir dires of potential jurors without prejudice to his reasserting it whenever his attorney elected to do so. The record shows that the waiver was never withdrawn, either explicitly or implicitly, despite the court's repeated advice to defendant that he could do so ( see, People v. Curry, 209 A.D.2d 357, lv denied 85 N.Y.2d 908).
Although defense counsel alluded to a lapsed notice period in connection with the introduction of the prosecutor's alibi rebuttal evidence (CPL 250.20), he never requested an adjournment to review the proposed rebuttal evidence (CPL 250.20), and thus any error is not preserved for appellate review ( see, People v. Borrello, 52 N.Y.2d 952; People v. Rogelio, 79 N.Y.2d 843). Nor was it an improper exercise of discretion to receive such evidence (CPL 250.20), where the alibi testimony presented by the defense was significantly more detailed than that recited in defendant's alibi notice and was inconsistent with evidence adduced in the case in chief. We have considered defendant's remaining contentions in this regard and find them to be without merit.
The trial court properly exercised its discretion in denying defendant's untimely request for a severance. The codefendant, claiming only to have been an eyewitness, purportedly would have testified that defendant was not the perpetrator, but only if a severance were granted and cross-examination of his testimony severely restricted so as to reduce its impeachment value at his own trial. Such tentativeness made denial of a severance appropriate ( see, People v. Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v. New York, 416 U.S. 905). In any event, in view of the overwhelming evidence of guilt, which includes identification testimony by various eyewitnesses acquainted with defendant, and damaging statements by defendant, any error in these circumstances would have been harmless.
We have considered defendant's remaining claims and find them to be without merit.
Concur — Milonas, J.P., Rosenberger, Kupferman, Williams and Mazzarelli, JJ.