
    The People of the State of New York, Respondent, v John M. Pennick, Appellant.
    [612 NYS2d 723]
   —Judgment unanimously affirmed. Memorandum: County Court erred in permitting a codefendant to testify during the prosecutor’s direct case regarding the contents of a letter that was not produced. The admission of that testimony violates the "best evidence rule”, which "requires that one who desires to prove the contents of a writing, do so by producing the writing itself unless sufficient reason is shown for its absence” (People v Colon, 281 App Div 354, 356; see also, Richardson, Evidence § 568 [Prince 10th ed]). The court further erred in denying defendant’s request to charge the jury that it could consider whether a mistake of fact negated the culpable mental state of "knowledge” that was required to establish a material element of the offenses charged (see, People v Rypinski, 157 AD2d 260). Reversal is not required, however, because those errors are harmless in light of the overwhelming proof of defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 237, 242).

Defendant was not deprived of his right to be present at all material stages of his trial when the court ruled that it would not conduct bench conferences during voir dire unless defendant waived his right to be present. The record discloses that no prospective juror either sought leave to approach the bench or displayed hesitancy in discussing possible bias or other problems associated with the case. The argument of defendant that the court’s ruling regarding bench conferences may have caused an unqualified juror to sit on his case is based on speculation and is unsupported by the record (cf., People v Antommarchi, 80 NY2d 247, 250, rearg denied 81 NY2d 759).

Finally, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495), and we decline as a matter of discretion in the interest of justice to disturb the sentence imposed (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Erie County Court, D’Amico, J.—Unauthorized Use Motor Vehicle, 2nd Degree.) Present—Denman, P. J., Lawton, Fallon, Doerr and Davis, JJ.  