| People v Williams |
| 2009 NY Slip Op 02822 [61 AD3d 470] |
| April 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rahjeem Williams, Appellant. |
—[*1] Rahjeem Williams, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered September 26,2005, convicting defendant, after a jury trial, of criminal possession of a controlled substance inthe third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9years, unanimously affirmed.
The totality of the record (see People v Montez, 269 AD2d 154 [2000], lv denied95 NY2d 800 [2000]; People v Leonor, 245 AD2d 22, 23 [1997], lv denied92 NY2d 855 [1998]) demonstrates that defendant knowingly, intelligently and voluntarilywaived his right to be present at discussions with potential jurors regarding possible bias (seePeople v Antommarchi, 80 NY2d 247 [1992]). After defendant's counsel had already toldthe court that he advised defendant of his Antommarchi rights, the court explained todefendant that he had an absolute right to be present at any sidebars, or any time the court andboth counsel had a discussion. When the court and both counsel retired to the deliberation roomto hear from potential jurors about possible problems they had with serving, defendant did notjoin them, and the Court Clerk informed the court that defendant "elected" not to do so. Later thecourt reiterated to defendant that he had a right to be present during any sidebar discussions orany discussions with the court and both counsel, and defendant confirmed that he had beenadvised about these rights by his own counsel. Counsel also later confirmed in the deliberationroom that defendant was again waiving his rights to be present. Given the flexible standard forfinding such a waiver (see People v Vargas, 88 NY2d 363, 375-376 [1996]), this recordsupports the conclusion that defendant waived this right. While the court articulated a right to bepresent that was broader than the law requires, its statement necessarily included the rightsguaranteed by Antommarchi, and the surrounding circumstances support the inferencethat defendant understood and waived those rights.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. The element of intent to sellwas established by evidence of defendant's [*2]contemporaneousdrug sale to an undercover officer. Defendant was not acquitted of the sale count; instead, thatcount was dismissed on the People's application after defendant's conviction on the possessioncount. Moreover, even if he had been acquitted of the sale count, we would reach the same result(see People v Rayam, 94 NY2d 557 [2000]; People v Freeman, 298 AD2d 311[2002], lv denied 99 NY2d 582 [2003]).
Defendant's pro se claims are unpreserved and we decline to review them in the interest ofjustice. As an alternative holding, we also reject them on the merits. Concur—Saxe, J.P.,Buckley, McGuire, DeGrasse and Freedman, JJ.