Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), rendered February 13, 2007. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the second degree and two counts of endangering the welfare of a child. The appeal from the judgment of conviction brings up for review an order of the same court dated February 13, 2007 denying defendant's motion, pursuant to CPL 330.30 (2), to set aside the jury verdict on the ground of juror misconduct.

ORDERED that the judgment of conviction is affirmed.

In June 2006, defendant was charged with sexual abuse in the second degree (Penal Law § 130.60 [2]) and two counts of endangering the welfare of a child (Penal Law § 260.10 [1]). Following a trial, the jury returned a verdict convicting defendant of all charges. Thereafter, defendant moved, pursuant to CPL 330.30 (2), to set aside the verdict on the ground of juror misconduct. On February 13, 2007, the Criminal Court denied the motion and imposed sentence. On appeal, defendant contends that the judgment of conviction should be reversed, and a new trial held, because of juror misconduct, and because he did not waive his right to be present at sidebar conferences and was not present at such a conference with a prospective juror who was subsequently seated on the jury or, in the alternative, that the matter should be remitted for a reconstruction hearing.

The Due Process Clauses of the United States and New York State Constitutions provide a defendant with the right to be present at all material stages of a trial. New York also grants a defendant the statutory right to be present at sidebar conferences (see CPL 260.20; People v Velasquez, 1 NY3d 44, 47 [2003]; People v Maher, 89 NY2d 318 [1996]; People v Vargas, 88 NY2d 363, 375 [1996]). While a defendant's right to be present at a sidebar conference during jury selection is fundamental (see People v Antommarchi, 80 NY2d 247 [1992]; see also People v Velasquez, 1 NY3d at 47; People v Roman, 88 NY2d 18, 26 [1996]), this right may be waived (see People v Velasquez, 1 NY3d at 48; People v Vargas, 88 NY2d at 375-376). Although a claim that a defendant was denied the right to be present at a sidebar conference need not be preserved by objection (see People v Velasquez, 1 NY3d at 47-48; People v Antommarchi, 80 NY2d at 250), a defendant alleging a violation of this right must present an adequate record for appellate review (see People v Velasquez, 1 NY3d at 47-48; People v Kinchen, 60 NY2d 772 [1983]). Moreover, it is well settled that a presumption of regularity attaches to all judicial proceedings, and a defendant has the burden of rebutting this presumption by substantial [*2]evidence (see People v Velasquez, 1 NY3d at 48).

Upon a review of the record, we find that defendant failed to meet his burden of presenting substantial evidence establishing his absence at the sidebar conference with the prospective juror. Therefore, defendant did not rebut the presumption that he was present at the conference (see People v Velasquez, 1 NY3d at 48; see also People v Cavilla, 28 Misc 3d 128[A], 2010 NY Slip Op 51218[U] [App Term, 9th & 10th Jud Dists 2010]). Moreover, in view of the foregoing, a reconstruction hearing is not required (see People v Velasquez, 1 NY3d at 49). Any ambiguity in the record was due to the failure of defendant's trial attorney to make an adequate record for appellate review (see e.g. People v Bosa, 60 AD3d 571 [2009]), and a reconstruction hearing is not required "where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial" (People v Velasquez, 1 NY3d at 49). Consequently, reversal of the judgment of conviction based on the aforementioned ground is not warranted.

In support of his CPL 330.30 motion to set aside the verdict on the ground of juror misconduct, defendant submitted an affidavit by his trial attorney's paralegal, which stated that a juror had informed the affiant that a man had exposed himself to her when she was a child, and that the juror had not disclosed this information to the court. These hearsay allegations, however, are insufficient to support defendant's claim of juror misconduct (see People v Friedgood, 58 NY2d 467, 473 [1983]; People v Kenyon, 108 AD3d 933, 941 [2013]; People v Covington, 44 AD3d 510 [2007]; People v Comfort, 30 AD3d 1069, 1069-1070 [2006]). Defendant also failed to show how a substantial right of his was prejudiced (see CPL 330.30 [2]; People v Rodriguez, 100 NY2d 30, 34-35 [2003]; People v Irizarry, 83 NY2d 557, 561 [1994]; People v Brown, 48 NY2d 388, 394 [1979])^[FN1] by the juror's failure to disclose this information, which failure to disclose, we note, is not per se reversible error (see People v Rodriguez, 100 NY2d at 34-35). Consequently, the Criminal Court did not improvidently exercise its discretion in concluding that defendant's CPL 330.30 motion papers were insufficient to warrant a hearing, and in summarily denying the motion (see CPL 330.40 [2] [e]; People v Friedgood, 58 NY2d at 473) and, therefore, reversal of the judgment of conviction based on juror misconduct is not warranted (see People v Kenyon, 108 AD3d at 941; People v Lemay, 69 AD3d 757, 758 [2010]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: April 09, 2015