| People v Green |
| 2008 NY Slip Op 06925 [54 AD3d 603] |
| September 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kareem Green, Also Known as Kareem Ousmane,Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 29, 2007,convicting defendant, after a jury trial, of tampering with physical evidence and sale of animitation controlled substance, and sentencing him, as a second felony offender, to concurrentterms of 2 to 4 years, unanimously affirmed.
Defendant's legal sufficiency argument concerning his tampering with physical evidenceconviction is unpreserved and we decline to review it in the interest of justice. As an alternativeholding, we also find that the verdict was based on legally sufficient evidence. Furthermore, theverdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant'scourse of conduct supports the inference that when he put an unknown object into his mouth, hewas aware that he was about to be arrested, and supports the additional inference that the objectwas contraband or evidence that defendant intended to prevent the police from discovering.
Defendant's statutory right to be present at material stages of the trial was not violated by hisabsence from sidebar conferences at which counsel exercised challenges to potential jurors,inasmuch as the questioning of prospective jurors was conducted in defendant's presence in opencourt and he was afforded an opportunity to consult with counsel prior to counsel's exercise ofthose challenges (see People v Mieles, 254 AD2d 436 [1998], lv denied 92 NY2d1051 [1999]; People v Smith, 205 AD2d 458 [1994], lv denied 84 NY2d 872[1994]). Defendant's absence from such sidebars had no effect on his opportunity to defend inlight of the fact that his attorney was only performing the ministerial task of exercising thechallenges to which defendant had agreed. Since only legal and administrative matters werediscussed at the sidebars at issue, [*2]defendant's presence wasnot required (see People v Velasco, 77 NY2d 469, 473 [1991]; People vHaywood, 280 AD2d 282, 282-283 [2001]). Concur—Mazzarelli, J.P., Andrias, Saxe,Friedman and Acosta, JJ.