People v. Lynch
| Decision Date | 09 June 1995 |
| Citation | 629 N.Y.S.2d 136,216 A.D.2d 929 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Mark LYNCH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Frank J. Nebush, Jr. by Esther Lek, Utica, for appellant.
Michael A. Arcuri by Tim Fitzgerald, Utica, for respondent.
Before GREEN, J.P., and FALLON, CALLAHAN, DOERR and DAVIS, JJ.
Defendant was convicted following a jury trial of sodomy in the first degree (Penal Law § 130.50[3], sexual abuse in the first degree (Penal Law § 130.65[3] and endangering the welfare of a child (Penal Law § 260.10[1]. Defendant contends that he was denied his right to be present at a pretrial Sandoval conference (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) conducted in chambers. The record establishes that, although there were some initial Sandoval discussions in chambers in defendant's absence, a de novo hearing was held on the record in the courtroom with defendant present (see, People v. Britt, 212 A.D.2d 1034, 623 N.Y.S.2d 58). Reversal is not required pursuant to People v. Dokes (79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836), because defendant was afforded a meaningful opportunity to participate at that de novo hearing (see, People v. Smith, 186 A.D.2d 976, 588 N.Y.S.2d 955, affd. 82 N.Y.2d 254, 604 N.Y.S.2d 494, 624 N.E.2d 631, rearg denied 83 N.Y.2d 801, 611 N.Y.S.2d 137, 633 N.E.2d 492; People v. Britt, supra; People v. Thomas, 206 A.D.2d 927, 616 N.Y.S.2d 295, lv. denied 84 N.Y.2d 940, 621 N.Y.S.2d 537, 645 N.E.2d 1237; People v. Moore, 202 A.D.2d 1046, 610 N.Y.S.2d 107, lv. denied 84 N.Y.2d 830, 617 N.Y.S.2d 150, 641 N.E.2d 171; People v. Vargas, 201 A.D.2d 963, 964, 607 N.Y.S.2d 829, lv. denied 83 N.Y.2d 859, 612 N.Y.S.2d 391, 634 N.E.2d 992). We reject the additional contention of defendant that County Court's Sandoval ruling was an abuse of discretion.
We agree with defendant that the court erred in permitting the six-year-old victim to testify under oath (see, People v. Maldonado, 199 A.D.2d 563, 606 N.Y.S.2d 258). That error, however, is harmless because her testimony was sufficiently corroborated by other evidence (see, People v. Green, 181 A.D.2d 1060, 582 N.Y.S.2d 659, lv. denied 80 N.Y.2d 831, 587 N.Y.S.2d 916, 600 N.E.2d 643). Under the circumstances of this case and in view of defendant's criminal history, the court did not abuse its discretion in imposing the maximum permissible sentence.
Judgment unanimously affirmed.
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