side bar in New York

1999The nature of the side bar discussion was such that defense counsel’s presence was sufficient to assure that defendant received a fair and just hearing (see, People v Torres, 80 NY2d 944, 945 ; People v Darby, 75 NY2d 449, 454 ; People v Maldonado, 192 AD2d 381 , lv denied 81 NY2d 1076 ).

1999The nature of the side bar discussion was such that defense counsel’s presence was sufficient to assure that defendant received a fair and just hearing (see, People v Torres, 80 NY2d 944, 945 ; People v Darby, 75 NY2d 449, 454 ; People v Maldonado, 192 AD2d 381 , lv denied 81 NY2d 1076 ).

1999The nature of the side bar discussion was such that defense counsel’s presence was sufficient to assure that defendant received a fair and just hearing (see, People v Torres, 80 NY2d 944, 945 ; People v Darby, 75 NY2d 449, 454 ; People v Maldonado, 192 AD2d 381 , lv denied 81 NY2d 1076 ).

1999The nature of the side bar discussion was such that defense counsel’s presence was sufficient to assure that defendant received a fair and just hearing (see, People v Torres, 80 NY2d 944, 945 ; People v Darby, 75 NY2d 449, 454 ; People v Maldonado, 192 AD2d 381 , lv denied 81 NY2d 1076 ).

1999The nature of the side bar discussion was such that defense counsel’s presence was sufficient to assure that defendant received a fair and just hearing (see, People v Torres, 80 NY2d 944, 945 ; People v Darby, 75 NY2d 449, 454 ; People v Maldonado, 192 AD2d 381 , lv denied 81 NY2d 1076 ).

1999The nature of the side bar discussion was such that defense counsel’s presence was sufficient to assure that defendant received a fair and just hearing (see, People v Torres, 80 NY2d 944, 945 ; People v Darby, 75 NY2d 449, 454 ; People v Maldonado, 192 AD2d 381 , lv denied 81 NY2d 1076 ).

1995Presented with a constitutionally-valid choice of either being accompanied by court officers whenever he was to approach the bench or to waive his right to be present, the defendant made an informed strategic decision to choose the latter (see, People v Underwood, supra).

1994This argument must be rejected as the defendant’s trial commenced in October 1986 and the rule entitling a defendant to be present during side bar voir dires applies prospectively to trials commencing after April 7, 1992 (see, People v Sprowal, 84 NY2d 113 ; People v Mitchell, 80 NY2d 519 ).

1994This argument must be rejected as the defendant’s trial commenced in October 1986 and the rule entitling a defendant to be present during side bar voir dires applies prospectively to trials commencing after April 7, 1992 (see, People v Sprowal, 84 NY2d 113 ; People v Mitchell, 80 NY2d 519 ).

1993Thus, the defendant was not denied a fair trial by his exclusion during the side bar at which the "race-neutral” explanations were offered (see generally, People v Velasco, 77 NY2d 469, 473 ).

1992(Supra, at 391.) In Sloan (supra), counsel did not object to the side bar inquiry of jurors nor was there any specific consent by counsel to the defendants’ absence during the inquiry.

1991(Snyder v Massachusetts, 291 US 97 .) Similarly, defendant’s absence from the robing room during the third round of voir dire was not error.

1991During a side bar prior to jury selection which County Court characterized as a Ventimiglia hearing, defendant failed to specifically request that a limiting instruction be given to the jury, the absence of which would indicate that the evidence was received for all purposes (see, People v Bolling, 120 AD2d 601, 602 , lv denied 68 NY2d 665 ), and could well have led the jury to believe that the testimony was introduced to prove defendant’s criminal propensities (see, People v Guzman, 146 AD2d 799, 800 ).

1991During a side bar prior to jury selection which County Court characterized as a Ventimiglia hearing, defendant failed to specifically request that a limiting instruction be given to the jury, the absence of which would indicate that the evidence was received for all purposes (see, People v Bolling, 120 AD2d 601, 602 , lv denied 68 NY2d 665 ), and could well have led the jury to believe that the testimony was introduced to prove defendant’s criminal propensities (see, People v Guzman, 146 AD2d 799, 800 ).

1991However, those challenges were given actual effect thereafter, in the defendant’s presence, "by the clerk’s reading off the list” (United States v Chrisco, 493 F2d 232, 236-237, cert denied 419 US 847 ) in open court.

1987Finally, because the first and second degree assault charges constituted inclusory concurrent counts under the facts of this case (see, CPL 300.30 [4]) and the jury’s verdict convicting the defendant of assault in the first degree is fully supported by the evidence, the conviction for assault in the second degree must be reversed (see, CPL 300.40 [3] [b]; People v Grier, 37 NY2d 847 ; People v Samuel, 123 AD2d 570 ; People v Boyd, 102 AD2d 774 ; People v Preston, 88 AD2d 574 ), and that count of the indictment must be dismissed.

1987Finally, because the first and second degree assault charges constituted inclusory concurrent counts under the facts of this case (see, CPL 300.30 [4]) and the jury’s verdict convicting the defendant of assault in the first degree is fully supported by the evidence, the conviction for assault in the second degree must be reversed (see, CPL 300.40 [3] [b]; People v Grier, 37 NY2d 847 ; People v Samuel, 123 AD2d 570 ; People v Boyd, 102 AD2d 774 ; People v Preston, 88 AD2d 574 ), and that count of the indictment must be dismissed.

1987Finally, because the first and second degree assault charges constituted inclusory concurrent counts under the facts of this case (see, CPL 300.30 [4]) and the jury’s verdict convicting the defendant of assault in the first degree is fully supported by the evidence, the conviction for assault in the second degree must be reversed (see, CPL 300.40 [3] [b]; People v Grier, 37 NY2d 847 ; People v Samuel, 123 AD2d 570 ; People v Boyd, 102 AD2d 774 ; People v Preston, 88 AD2d 574 ), and that count of the indictment must be dismissed.

1987Finally, because the first and second degree assault charges constituted inclusory concurrent counts under the facts of this case (see, CPL 300.30 [4]) and the jury’s verdict convicting the defendant of assault in the first degree is fully supported by the evidence, the conviction for assault in the second degree must be reversed (see, CPL 300.40 [3] [b]; People v Grier, 37 NY2d 847 ; People v Samuel, 123 AD2d 570 ; People v Boyd, 102 AD2d 774 ; People v Preston, 88 AD2d 574 ), and that count of the indictment must be dismissed.

1985A unanimous Court of Appeals stated in People v Sorge ( 301 NY 198, 202 ): “although there may be room for a difference of opinion as to the scope and extent of cross-examination, the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of ‘plain abuse and injustice’ (La Beau v. People, supra, 34 N.Y. 223, 230 ), from substituting its judgment for his and from making the difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.” Further, the Cour

1985After the court charged the jury, the People, on behalf of both the People and the defendant, citing the case of People v Tyler ( 14 AD2d 609 ), requested an instruction that the jury disregard the fire marshal’s expert conclusory opinion.

1985A unanimous Court of Appeals stated in People v Sorge ( 301 NY 198, 202 ): “although there may be room for a difference of opinion as to the scope and extent of cross-examination, the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of ‘plain abuse and injustice’ (La Beau v. People, supra, 34 N.Y. 223, 230 ), from substituting its judgment for his and from making the difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.” Further, the Cour

1985A unanimous Court of Appeals stated in People v Sorge ( 301 NY 198, 202 ): “although there may be room for a difference of opinion as to the scope and extent of cross-examination, the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of ‘plain abuse and injustice’ (La Beau v. People, supra, 34 N.Y. 223, 230 ), from substituting its judgment for his and from making the difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.” Further, the Cour

1984Consequently, any error arising from this isolated comment was harmless (see People v Johnson, 57 NY2d 969 ).

1958Order reversed, etc. NOTES [*] Crolly and Norton, Termination of Nonconforming Uses, 62 Zoning Bulletin 1, Regional Plan Assn., June, 1952, quoted in City of Los Angeles v. Gage , supra , pp. 454-455.