The People of the State of New York, Respondent, v. Anibal Cortes, Also Known as Michael Cortes, Appellant

The People of the State of New York, Respondent, v Anibal Cortes, Also Known as Michael Cortes, Appellant. [638 NYS2d 438] [MAJORITY] —Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered April 18, 1994, convicting defendant, after a jury trial, of arson in the first degree, and sentencing him, as a second felony offender, to a term of 15 years to life, unanimously affirmed. We find no basis to disturb the hearing court’s factual findings (see, People v Falciglia, 153 AD2d 795, affd 75 NY2d 935) that defendant, a principal in a realty corporation charged with hiring a third party to burn a building purchased only a few days previously by the corporation, was never represented in connection with the instant arson charge by the attorney who appeared for the building purchaser at the closing, and never requested counsel during his custodial interview. Accordingly, no indelible right to counsel had attached on the basis of the representation in the real estate transaction (compare, People v Bing, 76 NY2d 331, 348-349, with People v West, 81 NY2d 370, 373-374). Nor was defendant’s right to be present violated when the court and the attorneys removed to the robing room, without defendant, during cross-examination of defendant at the hearing, to discuss whether prior counsel had ever represented defendant personally, or had only represented the realty corporation at the closing. There was no relationship between defendant’s momentary absence during this ancillary proceeding and his ability to defend himself, and the discussion involved only a matter of law (People v Rodriguez, 85 NY2d 586, 590-591). Defendant’s remaining contentions are both unpreserved and without merit. Concur — Milonas, J. P., Rosenberger, Rubin, Kupferman and Mazzarelli, JJ.