People v Johnson
2006 NY Slip Op 01550 [27 AD3d 238]
March 7, 2006
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 17, 2006


The People of the State of New York, Respondent,
v
Freddie Johnson, Appellant.

[*1]

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered August 10, 2004, convicting defendant, after a jury trial, of persistent sexual abuse, and sentencing him to a term of 2 to 4 years, unanimously affirmed.

The record does not establish that defendant was absent from a preliminary discussion of Sandoval issues at sidebar (see People v Foster, 1 NY3d 44, 48 [2003]; People v Smith, 208 AD2d 455 [1994], lv denied 84 NY2d 1039 [1995]). The jury was absent from the courtroom, and "it would be entirely speculative to conclude that the sidebar was conducted in a hushed dialogue out of defendant's hearing" (People v Gonzalez, 203 AD2d 192 [1994], lv denied 84 NY2d 826 [1994]). Moreover, following the sidebar, the court held an essentially de novo hearing in open court, where defendant had the opportunity to provide meaningful input into the determination (see People v Martinez, 261 AD2d 143 [1999], lv denied 93 NY2d 1022 [1999]).

The court properly declined to reward defendant's courtroom outburst by granting a mistrial (see e.g. People v Martinez, 284 AD2d 157 [2001]). Any potential for prejudice that resulted from this behavior was of defendant's own making. Defendant did not preserve his other challenges to the court's handling of his outburst (People v Lombardo, 61 NY2d 97, 104 [1984]; People v Fernandez, 269 AD2d 167 [2000], lv denied 95 NY2d 796 [2000]), or his argument concerning the court's instructions during jury selection, and we decline to review [*2]them in the interest of justice. Were we to review these claims, we would find no basis for reversal. Concur—Tom, J.P., Friedman, Nardelli, Williams and Sweeny, JJ.