People v. Turaine
| Decision Date | 23 May 1996 |
| Citation | 227 A.D.2d 299,643 N.Y.S.2d 49 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Ditian TURAINE, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Susan Axelrod, for Respondent.
Howard Fischer, for Defendant-Appellant.
Before ROSENBERGER, J.P., and WALLACH, KUPFERMAN, ROSS and WILLIAMS, JJ.
Judgment, Supreme Court, New York County (Richard Lowe III, J.), rendered October 27, 1992, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 23 years to life, unanimously affirmed.
It was not error to exclude defendant from a material witness hearing at which the only issue was whether the witness would be "amenable or responsive to a subpoena at a time when his attendance will be sought" (CPL 620.20[1][b]. The sole issue considered at the hearing had no relationship to the merits of the murder charge and defendant's exclusion did not have a substantial relationship to his ability to defend against the charge (see, People v. Morales, 80 N.Y.2d 450, 454, 591 N.Y.S.2d 825, 606 N.E.2d 953; People v. Lovett, 192 A.D.2d 326, 595 N.Y.S.2d 476, lv. denied 82 N.Y.2d 722, 602 N.Y.S.2d 819, 622 N.E.2d 320). The record indicates that a transcript of the hearing was turned over to counsel, and to the extent that the record is not entirely clear on the point, defendant has not met his burden of presenting a factual record sufficient to permit appellate review (see, People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786; People v. Delgado, 202 A.D.2d 299, 610 N.Y.S.2d 770, lv. denied 83 N.Y.2d 966, 616 N.Y.S.2d 19, 639 N.E.2d 759).
Since defendant did not object to the "equal inferences" charge given by the court, the issue is not preserved (People v. Maldonado, 220 A.D.2d 212, 213, 631 N.Y.S.2d 850, 852, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264), and we decline to review it in the interest of justice. Finally, defendant's argument concerning the increased sentence he received from a different Judge upon retrial is not preserved for review (People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017), and we decline to reach it in the interest of justice.
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