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People v. Tullock

Supreme Court of New York, Second Department

March 22, 2017

The People of the State of New York, respondent,
v.
Tion Tullock, appellant. Ind. No. 8290/12

          Jay H. Schwitzman, Brooklyn, NY, for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Camille O'Hara Gillespie, and John C. Carroll of counsel), for respondent.

          WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered January 6, 2015, convicting him of criminal sex act in the first degree, robbery in the first degree as a sexually motivated felony, criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         Contrary to the defendant's contention, the Supreme Court did not err in denying his motion for a mistrial based on a brief and unsolicited reference to an inadmissible lineup identification during a complainant's testimony. At any time during a trial, upon motion of the defendant, the court must declare a mistrial and order a new trial, "when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial" (CPL 280.10[1]). The decision whether to declare a mistrial rests within the sound discretion of the trial court (see People v Wakefield, 212 A.D.2d 649, 649). Here, the court providently exercised its discretion in denying the defendant's motion for a mistrial on the basis of the complainant's testimony regarding her identification of the defendant in a lineup which had previously been suppressed, where the testimony was elicited inadvertently, and the court struck the testimony from the record, informed the jury that it had found the lineup to be unconstitutional, and repeatedly directed the jury to disregard the challenged testimony (see People v Hakmoun, 232 A.D.2d 243; People v Brown, 136 A.D.2d 1; see also People v Gonzalez, 295 A.D.2d 264; People v Diaz, 213 A.D.2d 353).

         The Sixth Amendment to the United States Constitution guarantees that an accused shall enjoy the right to trial by an impartial jury and to be confronted by adverse witnesses (see Parker v Gladden, 385 U.S. 363, 364). Here, the Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial based on an incident in which a court officer spoke to a juror about the presence of the defendant and his codefendant in the lobby of the courthouse after which the juror spoke to other jurors about the incident. The incident did not deprive the defendant of his Sixth Amendment rights, since the court questioned each juror individually with regard to the incident, was assured by each juror that he or she could remain fair and impartial, discharged the juror to whom the court officer spoke, and informed the remaining jurors that there had been no improper conduct by the defendant or his codefendant related to the incident (see People v Sher, 24 N.Y.2d 454; People v Wakefield, 212 A.D.2d 649; People v Konigsberg, 137 A.D.2d 142; People v Goldfeld, 60 A.D.2d 1; cf. Parker v Gladden, 385 U.S. 363). Moreover, while "[a] defendant has an absolute right to be present, with counsel, whenever his [or her] presence has a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against the charge" (People v Ciaccio, 47 N.Y.2d 431, 436 [internal quotation marks and citations omitted]), the defendant's absence during the court officer's brief communication with the juror, and during the court's subsequent communication with the court officer, did not deprive the defendant of his right to be present at a material stage of the proceeding (see People v Mullen, 44 N.Y.2d 1; People v White, 73 A.D.3d 820; People v Kempsey, 286 A.D.2d 780; cf People v Ciaccio, 47 N.Y.2d 431).

         The defendant's contention that he was prejudiced by his codefendant's conduct during the trial is unpreserved for appellate review (see CPL 470.05[2]). In any event, the contention is without merit, as the defendant failed to establish that any conduct by his codefendant prejudiced him (see People v Williams, 292 A.D.2d 251; People v Campbell, 170 A.D.2d 982).

         The defendant's contention that the Supreme Court improperly limited his attorney's summation is unpreserved for appellate review (see CPL 470.05[2]). In any event, the comments by the defendant's counsel, which concerned the defendant's conduct during the trial and in the courthouse lobby, did not relate to any issue in the case and, thus, the court did not err in limiting counsel's closing remarks in that regard (see generally Herring v New York, 422 U.S. 853).

         The defendant's contention that the evidence supporting his convictions was legally insufficient is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342, 348), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

         The sentence imposed was not excessive (see People v ...


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