People v. Roque

Feb 4, 2002
Versions:291 A.D.2d 417
737 N.Y.S.2d 306
2002 N.Y. App. Div. LEXIS 1321

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 10, 1997, convicting him of conspiracy in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

During the trial, a juror became “unable to continue serving by reason of illness” (CPL 270.35 [2] [a]). Contrary to the defendant’s contention, the Supreme Court conducted “a reasonably thorough inquiry and recit[ed] on the record * * * the facts and reasons” for discharging the juror (People v Page, 72 NY2d 69, 73; see, People v O’Connor, 222 AD2d 705).

The defendant’s contentions that the Supreme Court committed reversible error when it referred a witness’s accomplice status to the jury for resolution as a question of fact, and that the prosecution failed to present sufficient nonaccomplice testimony to corroborate that witness’s testimony, are unpreserved for appellate review (see, CPL 470.05 [2]). In any event, the defendant’s contentions are without merit. “[W]here different inferences can be reasonably drawn from the evidence produced at trial, the question of whether a particular person is an accomplice is a question of fact for the jury” (People v Jeffries, 122 AD2d 281, 282; see, People v Cobos, 57 NY2d 798; People v Tusa, 137 AD2d 151). The Supreme Court properly charged the jury on that issue, and the witness’s testimony was sufficiently corroborated (see, People v Daniels, 37 NY2d 624).

After consulting with the defendant, the defense counsel effectively waived the defendant’s right to a public trial by consenting, in his presence, to the closure of the courtroom during the testimony of two undercover officers (see, People v Miller, 257 NY 54; People v Sevencan, 258 AD2d 485; People v Daughtry, 242 AD2d 731; People v Espejo, 237 AD2d 458).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

*418The defendant’s remaining contentions áre either unpreserved for appellate review or without merit. Krausman, J.P., Luciano, Adams and Townes, JJ., concur.