Opinion
February 10, 1999
Appeal from Judgment of Onondaga County Court, Burke, J. — Robbery, 1st Degree.
Present — Hayes, J. P., Wisner, Pigott, Jr., Callahan and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of two counts of robbery in the first degree (Penal Law § 160.15, [4]), two counts of burglary in the first degree (Penal Law § 140.30, [4]), three counts of criminal possession of a weapon in the second degree (Penal Law § 265.03) and one count of grand larceny in the fourth degree (Penal Law § 155.30), arising from the nighttime burglary of the home of an alleged drug dealer and the armed robbery of a large sum of money from the victim. The victim of the robbery and his family were transported to another location where more money was allegedly located. Defendant and his codefendants were arrested by the police following a pursuit during which shots were fired. County Court dismissed the charge of kidnapping in the first degree (Penal Law § 135.25), and the jury acquitted defendant of attempted murder in the first degree (Penal Law § 110.00, 125.27 Penal [1] [a] [i]).
Defendant's absence from a sidebar discussion with a prospective juror does not require reversal because that prospective juror was excused for cause by the court ( see, People v. Maher, 89 N.Y.2d 318, 325; People v. Roman, 88 N.Y.2d 18, 28, rearg denied 88 N.Y.2d 920). Defendant's absence from a sidebar discussion with a sworn juror also does not require reversal because that juror was grossly unqualified to serve and was properly discharged by the court ( see, CPL 270.35).
Defendant was not denied effective assistance of counsel. Defense counsel's trial strategy, which proved successful, was to admit to the jury that defendant was guilty of some of the lesser charges in the hope that the jury would be more receptive to the claim, that defendant was not guilty of the far more serious charges of attempted murder and kidnapping ( see, People v. Goss, 229 A.D.2d 791, 793; People v. Plaza, 133 A.D.2d 857, 858, lv denied 70 N.Y.2d 936).
Defendant failed to preserve for our review his contention that the comments of the prosecutor during his opening statement were inflammatory ( see, CPL 470.05), and we decline to consider that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Defendant also failed to preserve for our review his contention that many of the prosecutor's statements during summation were improper ( see, CPL 470.05). In any event, we conclude that the prosecutor's comments were not so egregious as to have deprived defendant of his right to a fair trial ( see, People v. Herr, 203 A.D.2d 927, 928, aff'd 86 N.Y.2d 638).
Defendant failed to preserve for our review his contention that the trial court's instruction to the jury on reasonable doubt improperly placed upon the jurors the obligation to articulate a basis for their doubt ( see, People v. Robinson, 88 N.Y.2d 1001; People v. Swift, 241 A.D.2d 949, 950, lv denied 91 N.Y.2d 881, 1013). In any event, there is no merit to defendant's contention ( see, People v. Antommarchi, 80 N.Y.2d 247, 252-253, rearg denied 81 N.Y.2d 759; People v. Paris, 229 A.D.2d 926, lv denied 88 N.Y.2d 1070).
Finally, the sentence is neither unduly harsh nor severe.