People v. Hines

614 N.Y.S.2d 7 | N.Y. App. Div. | 1994

Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered September 5, 1991, convicting defendant, after jury trial, of attempted robbery in the third degree and criminal possession of a controlled substance in the seventh degree and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years and 1 year, respectively, unanimously affirmed.

There is no merit to defendant’s contention that he was deprived of his right to be present during a material stage of the proceedings when the court conducted a voir dire sidebar conference with a prospective juror. Quite apart from the fact that the record is silent with respect to whether or not defendant was present, no prejudice, or violation of People v Sloan (79 NY2d 386) can be discerned as the juror was later peremptorily excused (see, People v Rodriguez, 203 AD2d 92). Defendant’s claim concerning the court’s alleged violation of the jury selection procedure mandated by CPL 270.15 (3) is unpreserved for appellate review (People v Ortiz, 69 AD2d 825), and we decline to review in the interest of justice. Were we to do so, we would find that defendant suffered no prejudice (People v Howard, 200 AD2d 538). Defendant also failed to preserve his Batson (Batson v Kentucky, 476 US 79) claim concerning the prosecutor’s peremptory challenge to prospective juror Ms. Boone (People v Smith, 81 NY2d 875; People v Garcia, 200 AD2d 189). In any event, the record supports the court’s conclusion that the prosecutor articulated race-neutral reasons for excluding several potential black jurors (People v Okehoffurum, 201 AD2d 508; People v Doran, 195 AD2d 364). Nor do we find that the court’s Sandoval ruling constituted an abuse of discretion where, as herein, defendant had 25 convictions, and the court permitted the prosecutor to elicit defendant’s 3 felony convictions and 10 misdemeanor convictions but prohibited any inquiry into the nature of the convictions or the underlying facts (see, People v Ellis, 183 AD2d 534, affd 81 NY2d 854; People v Cowell, 170 AD2d 343, lv denied 77 NY2d 993).

Defendant has also failed to preserve for appellate review, as a matter of law, his claim concerning the court’s reasonable doubt instruction and failure to sua sponte instruct the jury on the statutory definitions of "deprive” and "appropriate” (see, People v Uraca, 195 AD2d 377, lv denied 82 NY2d 728), and we decline to review in the interest of justice. Were we to review, we would find that the charge, as a whole, apprised the jury of the appropriate principles of law (People v Dingle, 168 AD2d 281, lv denied 77 NY2d 960). Defendant’s remaining claims are without merit. Concur—Sullivan, J. P., Carro, Ellerin and Asch, JJ.