Opinion
1999-03249.
Decided May 10, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered April 5, 1999, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Davis Polk Wardwell, New York, N.Y. [Christopher H. Withers] of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA L. TOWNES, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the trial court abused its discretion when it delayed its acceptance of the defendant's waiver of his right to be present during sidebar conferences with prospective jurors. This contention is unpreserved for appellate review ( see People v. Hong Vuu, 284 A.D.2d 285; People v. Congelosi, 266 A.D.2d 930; People v. King, 234 A.D.2d 391), and in any event, it is devoid of merit ( see People v. Williams, 92 N.Y.2d 993; People v. Vargas, 88 N.Y.2d 363; People v. DeLaRosa, 289 A.D.2d 150, 151).
The defendant also contends that he was denied his statutory right to testify before the grand jury. However, having failed to move to dismiss the indictment within five days of his arraignment thereon, the defendant waived this contention ( see CPL 190.50[c]; People v. Purcell, 268 A.D.2d 491; People v. Obee, 232 A.D.2d 430, 431; People v. Valle, 198 A.D.2d 459). In addition, contrary to the defendant's contention, his attorney's failure to effectuate his intention to testify before the grand jury, standing alone, did not constitute the denial of effective assistance of counsel ( see People v. Wiggins, 89 N.Y.2d 872, 873; People v. Sherrod, 306 A.D.2d 503; People v. Ali, 292 A.D.2d 538; People v. DiGabriele, 262 A.D.2d 331).
The defendant's remaining contentions, raised in his supplemental pro se brief, are without merit.
FLORIO, J.P., TOWNES, COZIER and MASTRO, JJ., concur.