| People v Bowman |
| 2009 NY Slip Op 04132 [62 AD3d 1210] |
| May 28, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GeneBowman, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 23, 2008, upon a verdict convicting defendant of the crimes of criminalpossession of a forged instrument in the second degree (three counts) and petit larceny.
Following a jury trial, defendant was convicted of petit larceny and three counts of criminalpossession of a forged instrument in the second degree and sentenced, as a second felonyoffender, to an aggregate prison term of 5 to 10 years. Defendant's lone contention on this appealis that he did not make a knowing and intelligent waiver of his right to be present during sidebarconferences. We conclude that he did, and now affirm.
It is well settled that a defendant has the right to be present at every material stage of a trial,including sidebar conferences (seePeople v Velasquez, 1 NY3d 44, 47 [2003]). Such a right, however, may be voluntarilywaived (see People v Abdullah, 28AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]). Here, prior tocommencement of defendant's Sandoval hearing, County Court expressly asked defensecounsel whether he had conferred with his client regarding the issue of appearing at sidebars.Defendant's attorney acknowledged that he had and informed County Court that defendant wasdeclining his right to do so. Defense counsel's affirmative response to County Court's subsequentinquiry as to whether defendant was "waiving appearing at sidebars" was then confirmed bydefendant. We have no difficulty concluding that such a [*2]colloquy is indicative of a knowing, intelligent and voluntarywaiver (see People v Beverly, 6AD3d 874, 875 [2004], lv denied 3 NY3d 637 [2004]). Furthermore, althoughdefendant now asserts that the five-month time period between his Sandoval hearing andjury selection somehow nullifies the waiver, we observe that defendant failed to object to any ofhis absences from subsequent sidebar conferences (see People v Jackson, 52 AD3d 1052, 1054 [2008], lvdenied 11 NY3d 789 [2008]).
Peters, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.