May 19, 1998
Appeal from the Supreme Court, New York County (William Wetzel, J.)
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The element of physical injury was satisfied by evidence that defendant beat the complainant about the head and face with his fist, causing noticeable and multiple bruises, as well as bleeding and swelling, which necessitated application of ice packs to stem the swelling. This evidence supported the inference, that the nontestifying complainant suffered substantial pain ( see, People v. Rojas, 61 N.Y.2d 726).
The court properly instructed the jury that defendants claim of right to money he had given the complainant did not constitute a defense to attempted forcible stealing of cash ( People v. Duval, 172 A.D.2d 248, lv. denied 77 N.Y.2d 994).
The written waiver of defendants right to be present at sidebar conferences during the jury voir dire, signed by defendant, his attorney and the court, confirms that defendant was advised of his right to be present at such conferences and that he waived the right only after consulting with his counsel. In addition, the record indicates that defendant and his counsel stood silent when the court announced to the members of the jury panel that the opportunity would be provided for individual venirepersons to approach the Bench for discussion of any matter of "private" concern, in the presence of only the court and counsel, as well as when such conferences took place. Thus, the totality of the record and the reasonable inferences to be drawn therefrom indicate that defendants waiver of his right to be present at sidebar conferences during the jury voir dire proceedings was knowing, intelligent and voluntary ( see, People v. Leonor, 245 A.D.2d 22).
Statements by the complainant were properly received in evidence as excited utterances and business records. Invocation of these hearsay exceptions did not require any showing of the declarants unavailability.
We perceive no abuse of discretion in sentencing. Defendants additional claims of error are unpreserved and we decline to review them in the interest of justice.
Concur — Milonas, J.P., Rosenberger, Nardelli, Wallach and Rubin, JJ.