Opinion
July 6, 1998
Appeal from the Supreme Court, Kings County (Rappaport, J.).
Ordered that the judgment under Indictment No. 14513/92 is affirmed; and it is farther,
Ordered that the judgment under Indictment No. 12303/93 is modified, on the law, by directing that the sentences imposed thereunder shall run concurrently to each other; as so modified, the judgment is affirmed; and it is further,
Ordered that the orders are affirmed.
The supreme Court properly denied the defendant's respective motions to dismiss the indictments pursuant to CPL 30.30. With regard to Indictment No. 12303/93, the court determined that the 54-day period from July 23, 1993, to September 15, 1993, should be excluded as a reasonable period attributable to pretrial motion practice, and we find no basis to disagree ( see, CPL 30.30 [a]; People v. Fluellen, 160 A.D.2d 219; cf., People v. Cortes, 80 N.Y.2d 201, 212). With regard to Indictment No. 14513/92, the People's January 28, 1993, declaration of readiness was not rendered illusory by their subsequent filing of a consolidation motion ( see, People v. Howard, 235 A.D.2d 232).
The record does not support the defendant's contention that his waiver of the right to be present at certain side-bar conferences daring jury selection ( see, People v. Antommarchi, 80 N.Y.2d 247) was coerced by the trial court. Presented with the choice of either having the jury panel escorted in and out of the courtroom during these conferences or waiving his right to be present, the defendant made an informed strategic decision to waive his right to be present ( see, People v. Vargas, 88 N.Y.2d 363; People v. Moton, 215 A.D.2d 781).
Upon the exercise of our factual review power; we are satisfied that the verdict of guilt for the counts of conspiracy in the second degree under Indictment No. 12303/93 was not against the weight of the evidence ( see, CPL 470.15). The record reveals that the defendant and the confidential informant entered into an agreement whereby the confidential informant would obtain a handgun for the defendant and they would work together to carry out the murders in question.
Under the circumstances of this case, the sentences imposed on the three counts of conspiracy in the second degree must run concurrently with each other because those crimes were committed through a single act ( see, Penal Law § 70.25). Likewise, the sentence imposed for conspiracy in the fourth degree must run concurrently with the sentences imposed for conspiracy in the second degree because the act which constituted conspiracy in the fourth degree was a material element of conspiracy in the second degree ( see, Penal Law § 70.25). We have modified the sentence accordingly.
Finally, it was not error for the Supreme Court, in its respective orders dated December 12, 1994, August 1, 1995, and April 11, 1997, to deny, without a hearing, the defendant's motions pursuant to CPL 440.10 ( see, CPL 440.30 [b).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Bracken, J. P., Miller, O'Brien and Copertino, JJ., concur.