People v. Mauleon

—Judgments, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered August 12, 1996, convicting defendant, after a jury trial, of kidnapping in the first degree and kidnapping in the second degree, and convicting him, upon his plea of guilty, of murder in the second degree and kidnapping in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 18 years to life on the second-degree murder conviction, 18 years to life on each of the first-degree kidnapping convictions and 12V2 to 25 years on the second-degree kidnapping conviction, unanimously modified, on the law, to the extent of vacating defendant’s conviction for kidnapping in the second degree and dismissing that count, and otherwise affirmed. There was legally sufficient evidence of guilt and the verdict was not against the weight of the evidence. We see no reason to disturb the credibility determinations of the jury. There was ample evidence supporting the elements of abduction and intent to terrorize required for first-degree kidnapping under Penal Law § 135.25 (2) (c), including evidence of threats, display of weapons, and lengthy interrogation of a terrifying nature. Defendant’s claim that he was deprived of his right to be present at a material stage of the voir dire is unreviewable, 67 since he has not provided an adequate record establishing the subject matter of the sidebar discussion at issue (People v Kinchen, 60 NY2d 772, 774; People v Davilla, 249 AD2d 179, lv denied, 92 NY2d 924). In any event, the existing record clearly indicates that this discussion involved a scheduling matter for which defendant’s presence and participation were not required. The conviction for kidnapping in the second degree should be vacated and that count dismissed, since, as the People correctly concede, that count is a lesser included offense under the first-degree kidnapping count of which defendant was convicted after trial. Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.