AD1 order dated February 21, 2012, affirming judgment of conviction. Descision below: 92 AD3d 553, 938 NYS2d 543. Graffeo, J., granted leave June 25, 2014.

ISSUES PRESENTED: (1) Whether the court violated defendant's right to counsel by conducting an ex parte, in camera, untranscribed discussion with the People's main witness who claimed he was too ill to testify that day. (2) The refusal to charge the lesser included offense of assault three. (Assigned counsel: Bruce Austern & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

court's ex parte and untranscribed discussion with main witness