649 N.Y.S.2d 15 | N.Y. App. Div. | 1996
—Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered July 11, 1994, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.
Prior to voir dire, and prior to informing the jury panel of the nature of the case, the court conducted unrecorded sidebars, in defendant’s absence, concerning matters that might lead to pre-voir dire disqualification, for which defendant’s presence was not required (People v Velasco, 77 NY2d 469, 473). While it appears that some of the prospective jurors volunteered matters relating to bias, etc., for which defendant’s presence was required, it also appears that, except for jurors who were disqualified before voir dire, all questions requiring defendant’s presence were to be repeated de novo for his benefit, thus preserving his right to be present (People v Favor, 82 NY2d 254, 260, 268; People v Madera, 216 AD2d 89).
Because defendant failed to make timely objections to any of the prosecutor’s summation comments at issue, the claim is not preserved for appellate review as a matter of law (People v Delgado, 161 AD2d 181, lv denied 76 NY2d 787) and we decline to review it in the interest of justice. In any event, if were we to review it, we would find, first, that the comments in issue were properly responsive to defendant’s summation remarks questioning the complainant’s credibility and otherwise legitimate rhetorical comment (People v Johnson, 205 AD2d 309, lv denied 84 NY2d 827), and, second, that they could not have harmed defendant in view of the court’s instructions to the jury that counsel’s remarks are not evidence (see, People v Davis, 58 NY2d 1102, 1104) and also in view of the overwhelming evidence of defendant’s guilt (People v Morgan, 66 NY2d 255).
We have considered defendant’s other claims and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Rubin, Kupferman and Tom, JJ.
