People v. Rivera

When, during a trial in which defendant claimed mistaken identity, his identical twin brother unexpectedly entered the courtroom, the trial court properly exercised its discretion in giving defendant the choice of either permitting the prosecutor to subpoena the brother to testify to his whereabouts at the time of the crime or of not permitting the brother to again enter the courtroom during the trial. Defendant’s other claim that he was deprived of his right to be present when the court conducted several voir dire conferences in the robing room is not properly presented for appellate review, there being no proof in the record that defendant was absent from such proceedings (People v Kinchen, 60 NY2d 772). On the contrary, the record sufficiently establishes that defendant was present during the robing room conferences in question, notwithstanding minor inconsistencies in the court reporter’s method of noting defendant’s presence. Concur — Rosenberger, J. P., Ellerin, Rubin, Kupferman and Tom, JJ.