People v. Yuen

• Decision Date: 18 December 1995
• Citation: 636 N.Y.S.2d 346,222 A.D.2d 613
• Parties: The PEOPLE, etc., Respondent, v. Ming YUEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 346

636 N.Y.S.2d 346

222 A.D.2d 613

The PEOPLE, etc., Respondent, v. Ming YUEN, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 18, 1995.

Virginia Boccio, Wantagh, for appellant.

Denis Dillon, District Attorney, Mineola (Judith R. Sternberg and Andrea M. DiGregorio, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered June 23, 1993, convicting him of robbery in the first degree (two counts), burglary in the first degree (two counts), robbery in the second degree (two counts), criminal possession of a weapon in the fourth degree, and unlawful imprisonment in the second degree (five counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant has not preserved for appellate review his contention that the People failed to prove his identity as the perpetrator beyond a reasonable doubt (see, CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt (see, People v. Caballero, 177 A.D.2d 496, 575 N.Y.S.2d 710). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

We find unpersuasive the defendant's contention that he was denied his right to be present at sidebar discussions with prospective jurors during voir dire (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95). The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to be present. Indeed, prior to the commencement of voir dire and while the defendant was present in the room, his counsel advised the court that, after discussing the matter with him, the defendant had agreed to waive his right to be present at the sidebar discussions (see, People v. Stokes, 216 A.D.2d 337, 628 N.Y.S.2d 156; People v. Perez, 196 A.D.2d 781, 602 N.Y.S.2d 113).

Similarly unavailing is the defendant's claim that the trial court committed reversible error in responding to an inquiry from the jury in the absence of the defendant and counsel. Rather, the record indicates that, after the jury retired to commence deliberations, counsel for both sides stipulated that any items of evidence which the jury requested during deliberations could be delivered to the jury without consulting the attorneys. The court subsequently informed counsel that, during a recess, the jury had requested certain detectives' notes and had been advised that no such notes were in evidence. Since this communication to the jury was purely ministerial in nature and did not constitute "information" or "instruction" within the meaning of CPL 310.30, the defendant...