Decided and Entered: November 6, 2003.
Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered April 17, 2000, upon a verdict convicting defendant of the crimes of burglary in the first degree and murder in the second degree.
Gail B. Rubenfeld, Monticello, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Michael A. Korchak of counsel), for respondent.
Before: Mercure, J.P., Spain, Carpinello, Mugglin and, Lahtinen, JJ.
MEMORANDUM AND ORDER
Defendant's conviction arises from his participation in the April 21, 1999 armed robbery and murder of Luke Spencer in the City of Binghamton, Broome County. After planning the robbery, defendant, Hashim Herring and Rome Kendrick drove to Spencer's home in a car driven by Anita Garrison. Once there, Herring removed a gun from the trunk of the car, and defendant and Kendrick proceeded to break in through the front door while Herring broke in from the rear. Herring demanded money from Spencer and others in the home and then shot and killed him when he refused to comply. The foursome then fled the scene.
A police investigation led to the arrest of defendant, who waived hisMiranda rights and gave oral and written statements admitting his participation in the robbery and shooting. A grand jury returned an indictment charging him as an accomplice in the crimes of murder in the second degree, robbery in the first degree and burglary in the first degree. It also charged Herring with, inter alia, the crime of murder in the first degree. The cases against defendant and Herring were severed and, at trial, Kendrick and Garrison testified regarding defendant's involvement in the crime. At the conclusion of the trial, a jury returned a verdict convicting defendant of the burglary and felony murder charges, and he was sentenced to an indeterminate prison term of 18 years to life on the murder conviction, with a lesser determinate sentence on the remaining conviction. Defendant appeals, and we affirm.
First, we reject defendant's claim that his statements should have been suppressed because he was represented by counsel on other unrelated charges and, thus, could not make a valid waiver of his right to counsel outside the presence of counsel. To be sure, the People conceded at aHuntley hearing that they were on notice that the Broome County Public Defender's office represented defendant on other pending charges and had requested that defendant not be questioned on any matter without its involvement. However, a suspect under interrogation does not have a derivative right to counsel based upon representation on prior, totally unrelated charges and, thus, can validly waive the right to counsel outside the presence of counsel (see People v. Steward, 88 N.Y.2d 496, 501-502; People v. Bing, 76 N.Y.2d 331; People v. Kent, 240 A.D.2d 772, 773, lv denied 90 N.Y.2d 1012; compare People v. Cohen, 90 N.Y.2d 632, 638-639). Inasmuch as defendant was fully apprised of and voluntarily waived his right to counsel, his motion to suppress his statements was properly denied.
We also reject defendant's claim that he was denied his right to be present at sidebar conferences during jury selection. The record clearly reflects that defendant was informed of his right to be present at all such conferences and defense counsel affirmatively waived that right in open court in defendant's presence. Further, defendant failed to object to his absence at any sidebar colloquies (see People v. Keen, 94 N.Y.2d 533, 538-539; People v. Harris, 304 A.D.2d 848, 850, lv denied 100 N.Y.2d 582). Next, we conclude that the accomplice testimony of Kendrick and Garrison was sufficiently corroborated by defendant's written statement admitting his involvement, the testimony of witnesses who saw defendant with his accomplices just before the crimes occurred and the testimony of other witnesses who were present in the home and confirmed details of the crime (see CPL 60.22; see also People v. Breland, 83 N.Y.2d 286, 292-294; People v. Elhadi, 304 A.D.2d 982, 983, lv denied 100 N.Y.2d 580).
Lastly, we find no error in County Court's refusal to charge the jury with the statutory affirmative defense to felony murder (see Penal Law * 125.25 ). Defendant admitted that he was aware that Herring had a gun. In addition, Garrison testified that she clearly saw Herring carrying a gun as he, defendant and Kendrick approached Spencer's residence. Thus, we see "[n]o reasonable view of the evidence" that would have permitted a jury to find that defendant was unaware that Herring was armed (People v. Robinson, 249 A.D.2d 333, 334, lv denied 92 N.Y.2d 904; see People v. Lapan, 289 A.D.2d 698, 701, lv denied 97 N.Y.2d 756).
Mercure, J.P., Spain, Mugglin and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.