People v. Wigfall

—Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered April 14, 1993, convicting defendant, after a jury trial, of attempted murder in the second degree, robbery in the first degree and assault in the first degree, and sentencing him, as a second violent felony offender, to two consecutive terms of 121/2 to 25 years and a concurrent term of 71/2 to 15 years, respectively, unanimously affirmed.

By order of this Court entered May 14, 1996, we held the appeal in abeyance and remanded the matter for a hearing to determine whether defendant was present at certain challenged sidebar conferences and, if not, whether there was a waiver of his right to be present (227 AD2d 217). Such a hearing was held before Justice Carol Berkman and included the testimony of the Trial Judge, who clearly recalled that defendant was present "without exception” at every sidebar where a prospective juror was questioned and that defendant did not waive his right to be present. Based on this and other testimony, Justice Berkman concluded that "the People have *74established by far more than a preponderance of the evidence that defendant was present for all the conferences with the jurors”. Accordingly, we reject defendant’s contention that he was deprived of his fundamental right to be present at material stages of the voir dire, which is the sole issue raised on appeal. Concur—Sullivan, J. P., Ellerin, Ross, Nardelli and Williams, JJ.