Submitted - October 20, 2017
A. Feldman, Uniondale, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY
(Bridget R. Steller of counsel), for respondent.
WILLIAM F. MASTRO, J.P. SHERI S. ROMAN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court,
Dutchess County (Greller, J.), rendered August 12, 2013,
convicting him of conspiracy in the second degree, attempted
murder in the second degree (two counts), assault in the
first degree, and attempted assault in the first degree, upon
a jury verdict, and imposing sentence.
that the judgment is affirmed.
to the defendant's contention, his right to be present
during a material stage of the trial was not violated when,
in his absence, and in the absence of defense counsel and the
prosecutor, the County Court notified the jurors that they
were going to be sequestered and delivered sequestration
instructions. While a defendant has a statutory right to be
present when the jury is given instructions or information by
the court (see CPL 310.30; People v
Mehmedi, 69 N.Y.2d 759, 760), not every communication
with a deliberating jury requires the presence of the
defendant (see People v Bonaparte, 78 N.Y.2d 26,
30). Here, the court gave no instructions or information
pertinent to the case which would have required the
defendant's presence. The colloquy was purely ministerial
and wholly unrelated to the substantive legal and factual
issues of the trial (see People v Hameed, 88 N.Y.2d
232, 241). Therefore, the challenged discussion bore no
substantial relationship to the defendant's opportunity
to defend against the charges, and it did not violate his
right to be present (see id. at 241; People v
Bonaparte, 78 N.Y.2d at 30; People v Harris, 76
N.Y.2d 810, 812).
defendant's contention that the County Court improperly
failed to repeat in its final charge cautionary instructions
to the jury concerning note-taking is unpreserved for
appellate review (see CPL 470.05; People v
Wellington, 84 A.D.3d 984, 985; People v
Harris, 72 A.D.3d 1110, 1112; People v Hudson,
54 A.D.3d 774, 775; People v Ramos, 306 A.D.2d 295;
People v Caraballo, 221 A.D.2d 553, 554). In any
event, any error was harmless, since there was overwhelming
evidence of the defendant's guilt, and no significant
probability that any error contributed to the defendant's
conviction (see People v Crimmins, 36 N.Y.2d 230,
237; People v Hudson, 54 A.D.3d at 775; People v
Caraballo, 221 A.D.2d at 554).
defendant's contention that the County Court erred in
admitting evidence of a prior uncharged crime is unpreserved
for appellate review. The defendant made only a general
objection to that line of questioning and failed to advise
the court that the present claimed error was the basis for
his objection. The word "objection" alone was
insufficient to preserve the issue for appellate review
(see People v Tevaha, 84 N.Y.2d 879; People v
Croswell, 63 A.D.3d 754; People v Young, 278
A.D.2d 261), since the evidence was not inherently
incompetent (see People v Till, 87 N.Y.2d 835,
836-837; People v Vidal, 26 N.Y.2d 249, 254). In any
event, the defendant's contention is without merit.
defendant's contention that certain comments made by the
prosecutor during his summation were improper and deprived
him of a fair trial is unpreserved for appellate review (see
CPL 470.05; People v Grant, 137 A.D.3d 938, 938).
In any event, the challenged remarks were either within the
broad bounds of permissible rhetorical comment, fair comment
on the evidence and the reasonable inferences to be drawn
there from, or otherwise did not deprive the defendant of a
fair trial (see People v Hawley, 112 A.D.3d 968,
969; People v McGowan, 111 A.D.3d 850, 851;
People v Cromwell, 99 A.D.3d 1017, 1018). Further,
there is no merit to the defendant's contention that the
cumulative effect of the alleged trial errors, combined with
the prosecutor's comments, deprived him of a fair trial
(see People v Racks, 125 A.D.3d 692, 694).
to the defendant's contention, the sentence imposed by
the County Court did not improperly penalize him for
exercising his right to a jury trial. The fact that the
sentence imposed after trial was greater than the sentence
offered during plea negotiations is not, standing alone, an
indication that the defendant was punished for asserting his
right to proceed to trial (see People v Stevenson,
129 A.D.3d 998, 1000; People v Murray, 116 A.D.3d
1068, 1069). A review of the record reveals no retaliation or
vindictiveness against the defendant for electing to proceed
to trial (see People v Murray, 116 A.D.3d at 1069;
People v Griffin, 98 A.D.3d 688, 690). Moreover, the
sentence imposed was not excessive (see People v
Suitte, 90 A.D.2d 80).
defendant's remaining contention is without merit.
MASTRO, J.P., ROMAN, MILLER and ...