People v. Yhel

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered May 13, 1992, convicting him of robbery in the first degree (three counts), and burglary in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. We reject the defendant’s contention that he was denied a fundamental right to be present during a material stage of the trial by his absence from an initial, off-the-record Sandoval conference (see, People v Sandoval, 34 NY2d 371). The defendant’s failure to allege that he was absent from the Sandoval hearing which was held on the record, combined with his opportunity to object on the record prior to the final Sandoval ruling, cured any infirmity he may have suffered due to his absence from the off-the-record conference (see, People v Michalek, 82 NY2d 906; see also, People v Spotford, 85 NY2d 593). In any event, the record does not support the defendant’s contention that the prior conviction at issue here was ultimately considered in the court’s subsequent on-the-record Sandoval "compromise”. Thus, the defendant has failed to demonstrate that he was prejudiced by his absence from the off-the-record conference or that his ability to defend himself was in any way compromised. Therefore, his presence at the off-the-record conference would have been superfluous and his absence therefrom does not require a reversal (see, People v Dokes, 79 NY2d 656; People v Lamour, 189 AD2d 825; People v Ray, 184 AD2d 596). The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). The defendant’s remaining contentions are either unpreserved for appellate review, without merit, or constitute harmless error in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230). Bracken, J. P., Copertino, Krausman and Florio, JJ., concur.