People v. Neal

• Decision Date: 20 June 1994
• Citation: 614 N.Y.S.2d 295,205 A.D.2d 711
• Parties: The PEOPLE, etc., Respondent, v. Bruce NEAL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 295

614 N.Y.S.2d 295

205 A.D.2d 711

The PEOPLE, etc., Respondent, v. Bruce NEAL, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

June 20, 1994.

Sheryl P. Lerner, Jericho, for appellant.

Denis Dillon, Dist. Atty., Mineola (Judith R. Sternberg and Daniel T. Butler, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Baker, J.), rendered December 16, 1992, convicting him of attempted robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that he was denied effective assistance of counsel is based largely on matters which are dehors the record and thus are not reviewable on direct appeal (see, People v. Yancy, 189 A.D.2d 793, 592 N.Y.S.2d 279; People v. Langhorne, 177 A.D.2d 713, 576 N.Y.S.2d 1016; see also, People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Insofar as we are able to review the claim, we find that the record demonstrates that the defendant was afforded meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant further contends that he was denied his right to be present at a material stage of the trial because he was not present when a prospective juror was questioned at a side-bar conference, and the discussion may have concerned issues of bias or hostility (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95). The record reveals that a prospective juror asked to approach the bench and, after an off-the-record discussion with the attorneys present, the juror was excused without objection by the defense counsel. The record fails to reveal if the defendant was present at the side-bar conference, nor is there any indication in the record regarding the substance of the discussion. We decline to reach this issue, as the factual record is insufficient to permit appellate review (see, e.g., People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786; People v. Noland, 189 A.D.2d 829, 592 N.Y.S.2d 465). We find it inappropriate under the circumstances of this case to direct further proceedings in order to allow the defendant to inject new facts into the record regarding the substance of the side-bar discussion (see, e.g., People v. Raventos, 199 A.D.2d 429, 605 N.Y.S.2d 334; cf., People v. Odiat, ...