Opinion
June 13, 1988
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence to an indeterminate term of 8 1/3 to 25 years' imprisonment; as so modified, the judgment is affirmed.
The court's preliminary screening of prospective jurors prior to the completion of the defendant's Wade hearing and before a decision was rendered on that branch of his omnibus motion which was to suppress certain identification evidence did not violate the defendant's rights under CPL 710.40 (3) as defense counsel was not compelled to commence his jury selection prior to the determination of the suppression motion (see, People v Blowe, 130 A.D.2d 668). Furthermore, the hearing court's determination that an eyewitness by the name of Cambridge, who had observed the defendant for five minutes in broad daylight at the time the instant crime occurred, had an independent source upon which to base his in-court identification of the defendant is amply supported by the record and will not be disturbed by this court (see, People v Johnson, 129 A.D.2d 739; People v Smalls, 112 A.D.2d 173).
We note that while it was improper for the trial court to provide the jury with written instructions in the defendant's absence (see, CPL 310.30) and that such conduct would mandate reversal if the communications had been of such a nature as to have potentially influenced the jury's deliberations (see, People v Mehmedi, 69 N.Y.2d 759, rearg denied 69 N.Y.2d 985; People v Ciaccio, 47 N.Y.2d 431), here, as in People v Moore ( 129 A.D.2d 590, 591, lv denied 70 N.Y.2d 651), "the communication concerned only a minor procedural matter; it therefore cannot be said that the defendant was absent during a material part of the trial (cf., People v Mehmedi, supra)". Furthermore, the defendant's absence at that time and when the court heard argument from defense counsel on that procedural matter did not affect a substantial right of the defendant (cf., People v Mullen, 44 N.Y.2d 1, 4-5; People ex rel. Lupo v Fay, 13 N.Y.2d 253, 256-257, mot to amend remittitur granted 13 N.Y.2d 1178, cert denied 376 U.S. 958).
The defendant's sentence has been modified to the extent indicated because the court, under these circumstances, was required to impose a minimum term of imprisonment equal to one third of defendant's maximum term (Penal Law § 70.02). We have reviewed the defendant's remaining contentions, including the one raised in his supplemental pro se brief, and have found them to be unpreserved for appellate review or without merit. Thompson, J.P., Brown, Weinstein and Rubin, JJ., concur.