People v. Evans
| Decision Date | 22 August 1994 |
| Citation | 615 N.Y.S.2d 914,207 A.D.2d 500 |
| Parties | The PEOPLE, etc., Respondent, v. Rodney EVANS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Jan Hoth-Uzzo, of counsel), for appellant, and appellant pro se.
Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Nancy F. Talcott, and Judybeth Tropp, of counsel), for respondent.
Before BALLETTA, J.P., and ROSENBLATT, JOY and FLORIO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered March 27, 1990, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was denied a fair trial because the court examined prospective jurors regarding their knowledge of the case, as a result of pretrial publicity, outside of his presence. In People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784, the Court of Appeals held that such a procedure violated a defendant's right to be present at a material stage of the trial. However, the Court of Appeals has determined that the rule enunciated in Sloan should be applied only prospectively to cases in which jury selection occurred after April 7, 1992, the date on which Sloan was decided (see, People v. Sprowal, 84 N.Y.2d 113, 615 N.Y.S.2d 328, 638 N.E. 973; see also, People v. Hannigan, 193 A.D.2d 8, 601 N.Y.S.2d 928). In the case before us, jury selection occurred prior to April 7, 1992. Thus, reversal is not warranted on that ground.
The defendant also contends that he was excluded from a material stage of the trial when counsel exercised their challenges to the jury in chambers, outside of his presence. While the defendant was not present when the challenges were discussed, he was present during the entire voir dire and was present when the challenges were given effect, because the challenged jurors were excused and others were sworn in open court (see, People v. Cohen, 201 A.D.2d 494, 607 N.Y.S.2d 374; People v. Melendez, 182 A.D.2d 644, 582 N.Y.S.2d 944; People v. Yonamine, 192 A.D.2d 687, 597 N.Y.S.2d 102).
The defendant's contention that there was insufficient evidence to prove the intent element of the intentional murder charge is unpreserved for appellate review (CPL 470.05[2]. In any event, viewing the evidence in a light most favorable to ...
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