People v. Rivera

• Decision Date: 01 April 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Hector RIVERA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1370
919 N.Y.S.2d 691
2011 N.Y. Slip Op. 02547

The PEOPLE of the State of New York, Respondent,
v.
Hector RIVERA, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 1, 2011.

[919 N.Y.S.2d 692]

Shirley A. Gorman, Brockport, for Defendant–Appellant.Hector Rivera, Defendant–Appellant Pro Se.Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.MEMORANDUM:

[83 A.D.3d 1370] On a prior appeal, we affirmed the judgment convicting defendant of murder in the second degree under Penal Law § 125.25(1) ( People v. Rivera, 206 A.D.2d 832, 615 N.Y.S.2d 196, lv. denied 84 N.Y.2d 871, 618 N.Y.S.2d 17, 642 N.E.2d 336). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., that Supreme Court erred in responding to notes from the jury during its deliberations ( People v. Rivera, 70 A.D.3d 1517, 893 N.Y.S.2d 923), and we vacated our prior order. We now consider the appeal de novo.

Contrary to defendant's contention, we conclude that the court fulfilled its “core responsibilities under CPL 310.30” ( People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90). The record establishes that the court provided a nearly verbatim summary of the contents of the notes in open court, in the presence of defendant and defense counsel, before responding to the notes ( see People v. Bonner, 79 A.D.3d 1790, 1791, 913 N.Y.S.2d 465; People v. Salas, 47 A.D.3d 513, 851 N.Y.S.2d 29, lv. denied 10 N.Y.3d 844, 859 N.Y.S.2d 403, 889 N.E.2d 90). Defendant therefore was required to register an objection in order to preserve for our review his challenge to the procedure employed [83 A.D.3d 1371] by the court in responding to the jury notes, “at a time when any error by the court could have been obviated by timely objection” ( People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387; see People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791; cf. People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990). We decline to exercise our power to address defendant's contention as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).

We reject the further contention of defendant that he was deprived of the right to be present during sidebar discussions with prospective jurors. The decision of the Court of Appeals in People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393) does not apply herein because defendant's trial was conducted before that decision was issued ( see People v. Mitchell, 80 N.Y.2d 519, 528, 591 N.Y.S.2d 990, 606 N.E.2d 1381). Thus, applying the law in effect at that time, defendant had no right to be present at bench conferences unless they “concern[ed] the very same witnesses

[919 N.Y.S.2d 693]

and events which were to be involved in the case to be tried” ( id. at 529, 591 N.Y.S.2d 990, 606 N.E.2d 1381; see People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784; People v. Siler, 197 A.D.2d 842, 843–844, 602 N.Y.S.2d 256, lv. denied 82 N.Y.2d 903, 610 N.Y.S.2d 170, 632 N.E.2d 480). Here, a prospective juror notified the court that she recognized an individual in the courtroom. The prosecutor asked to approach the bench, and an off-the-record discussion ensued between the court, the prosecutor and defense counsel. The court then summoned the prospective juror to the bench and, after a further off-the-record discussion, the court excused the prospective juror. Although defendant asserts that the unidentified individual was “likely the [victim]'s mother, [or] one of the People's witnesses,” defendant provides no record support for that assertion, and thus it is based on sheer speculation ( see People v. Davilla, 249 A.D.2d 179, 180–181, 672 N.Y.S.2d 107, lv. denied 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277, cert. denied 526 U.S. 1122, 119 S.Ct. 1776, 143 L.Ed.2d 805). Defendant has the burden of establishing his absence from a material stage of the trial ( see People v. Velasquez, 1 N.Y.3d 44, 47–48, 769 N.Y.S.2d 156, 801 N.E.2d 376), i.e., the aforementioned bench conferences, and here...