People v. Whitmore

• Decision Date: 04 November 1991
• Citation: 575 N.Y.S.2d 914,177 A.D.2d 525
• Parties: The PEOPLE, etc., Respondent, v. Philip WHITMORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 914

575 N.Y.S.2d 914

177 A.D.2d 525

The PEOPLE, etc., Respondent, v. Philip WHITMORE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 4, 1991.

Philip L. Weinstein, New York City (Frank Loss, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Emil Bricker, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, LAWRENCE and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered October 10, 1989, convicting him of assault in the first degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Although two prospective jurors initially expressed some concern about the emotional impact of violent crimes committed against them or their families, they both ultimately indicated that this would not affect their ability to sit as fair and impartial jurors. Accordingly, the court did not err in denying the defendant's application to excuse these jurors for cause (see, People v. Williams, 63 N.Y.2d 882, 884-885, 483 N.Y.S.2d 198, 472 N.E.2d 1026).

In addition, the defendant's right to be present during the impaneling of the jury was not impaired by his exclusion from certain preliminary questioning of prospective jurors, prior to the formal voir dire, where his attorney was present and he did not object. Such procedures did not violate the defendant's statutory or constitutional right to be present at the impaneling of the jury (see, People v. Velasco, 77 N.Y.2d 469, 568 N.Y.S.2d 721, 570 N.E.2d 1070; People v. Knight, 173 A.D.2d 646, 570 N.Y.S.2d 227; People v. Blake, 158 A.D.2d 979, 551 N.Y.S.2d 132; People v. Ganett, 68 A.D.2d 81, 416 N.Y.S.2d 914, affd. 51 N.Y.2d 991, 435 N.Y.S.2d 976, 417 N.E.2d 88; see also, Snyder v. Massachusetts, 291 U.S. 97, 106-107, 54 S.Ct. 330, 332-333, 78 L.Ed. 674; People v. Ramos, 173 A.D.2d 748, 570 N.Y.S.2d 247). Likewise, the defendant's right to be present was not impaired by his absence from conferences during which counsel advised the court of their peremptory challenges and challenges for cause (People v. Velasco, supra; People v. Ramos, supra; People v. Knight, supra ).

Finally, the court did not err in imposing a mandatory surcharge (see, People v. Barnes, 62 N.Y.2d 702, 476 N.Y.S.2d 528, 465 N.E.2d 35). Should the defendant find himself unable to pay the surcharge at the...