PEOPLE v. MAULEON

There was legally sufficient evidence of guilt and the verdict was not against the weight of the evidence. We see no reason to disturb the credibility determinations of the jury. There was ample evidence supporting the elements of abduction and intent to terrorize required for first-degree kidnapping under Penal Law § 135.25(2)(c), including evidence of threats, display of weapons, and lengthy interrogation of a terrifying nature.

Defendant's claim that he was deprived of his right to be present at a material stage of the voir dire is unreviewable, since he has not provided an adequate record establishing the subject matter of the sidebar discussion at issue (People v. Kinchen, 60 N.Y.2d 772, 774; People v. Davilla, 249 A.D.2d 179, lv denied 92 N.Y.2d 924). In any event, the existing record clearly indicates that this discussion involved a scheduling matter for which defendant's presence and participation were not required.

The conviction for kidnapping in the second degree should be vacated and that count dismissed, since, as the People correctly concede, that count is a lesser included offense under the first-degree kidnapping count of which defendant was convicted after trial.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.