188 A.D.2d 659 | N.Y. App. Div. | 1992
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered February 26, 1990, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant’s present contention, his right to be present at all material stages of the trial was not violated when, in his absence, the court conducted a brief in camera inquiry regarding a sworn juror’s possible presence at the arrest scene (see, People v Mullen, 44 NY2d 1; see also, People v Torres, 80 NY2d 944). The Court of Appeals has observed that such "in camera questioning of a juror [is] not a 'material part’ of a trial requiring the personal presence of defendant” (People v Darby, 75 NY2d 449, 453, quoting People v Mullen, supra, at 6). Therefore, we find that the indispensable presence of defense counsel at the inquiry sufficiently safeguarded the defendant’s due process right to a fair and just hearing on this issue (see, People v Darby, supra, at 453; People v Mullen, supra, at 5). Indeed, it cannot be stated in this case that the defendant’s presence at the inquiry would have borne any relation to his ability to defend against the charges (see, Snyder v Massachusetts, 291 US 97; People v Bumbury, 186 AD2d 671).
Similarly unavailing is the defendant’s claim that the court erred in failing to suppress identification testimony and in
Finally, the sentence imposed is neither unduly harsh nor excessive (see, People v Suitte, 90 AD2d 80). Sullivan, J. P., Balletta, Fiber and Santucci, JJ., concur.