People v. Dunbar
| Decision Date | 26 April 1991 |
| Parties | PEOPLE of the State of New York, Respondent, v. John DUNBAR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edward J. Nowak by Roger Brazill, Rochester, for appellant.
Howard R. Relin by Mark Pedersen, Rochester, for respondent.
Before DILLON, P.J., and DOERR, BOOMER, PINE and LAWTON, JJ.
On appeal from his conviction of assault in the third degree, defendant argues that he was denied his constitutional right to be present at a critical stage of his trial when the court entertained his Sandoval(People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) motion in chambers. Following the discussion in chambers in which defendant's attorney participated, the court placed its Sandoval ruling on the record and, although defendant objected to the ruling, defendant raised no objection to the court's discussing the motion in chambers without his presence.
Because defendant neither requested to be present for the discussion of his Sandoval motion nor objected to the procedure utilized by the court, defendant has failed to preserve this issue for review as a matter of law (see, People v. Howard, 167 A.D.2d 922, 562 N.Y.S.2d 285; People v. Dunlap, 161 A.D.2d 1114, 555 N.Y.S.2d 492; People v. Blake, 158 A.D.2d 979, 551 N.Y.S.2d 132, lv. denied 75 N.Y.2d 964, 556 N.Y.S.2d 249, 555 N.E.2d 621). In the absence of a showing of prejudice to defendant by the court's taking up defendant's Sandoval motion in chambers (cf., People v. Jenkins, 157 A.D.2d 854, 855, 550 N.Y.S.2d 736 [], we decline to reach the issue in the interest of justice.
Defendant's challenges to the trial court's justification charge are not preserved for review and, in any event, we conclude that the charge as given adequately conveyed to the jury the principles of justification. Defendant was not deprived of a fair trial by the court's inadvertent reference to his prior burglary conviction. The court instructed the jury to disregard the reference and further instructed the jury that the fact that defendant had a prior conviction should have no bearing on its determination of his guilt or innocence. Defendant's remaining arguments are not preserved for review and we decline to reach them in the interest of justice.
Judgment unanimously affirmed.
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