| People v Figueroa |
| 2008 NY Slip Op 01604 [48 AD3d 324] |
| February 21, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Figueroa, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered January 20,2006, convicting defendant, after a jury trial, of robbery in the second degree (two counts) andcriminal possession of a weapon in the fourth degree, and sentencing him, as a second felonyoffender, to an aggregate term of 12 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. The victims satisfactorilyexplained the discrepancies between their trial testimony and their prior statements.
After the jury had sent a note indicating that it had reached a verdict, the foreperson sent apersonal note to the court indicating that he did not feel "comfortable" about reading the verdict.The court inquired of the foreperson about the meaning of the note, outside the presence ofdefendant, his codefendant or any of the attorneys. Subsequently, the court informed counsel ofthe note, and related that during the inquiry, no mention of the verdict itself was made; instead,the foreperson stated that he was uneasy about having to read the verdict out loud in some sort ofnarrative form. The court related to counsel that when it assured the foreperson he would onlyhave to answer the clerk's questions, the foreperson, who had not served on a jury before, was"relieved" and satisfied. In response to the prosecutor's question, the court stated that theforeperson never indicated any discomfort with the verdict itself, which was simply notdiscussed. Neither defendant objected to this procedure or sought a further inquiry of theforeperson. The jury then rendered its verdict, and, when individually polled, each juror includingthe foreperson agreed with it.
Subsequent to trial, the codefendant moved to set aside the verdict pursuant to CPL 330.30,on the basis that the court, in responding to the foreperson's note, failed to follow the procedureset forth in CPL 310.30, specifically in that he was absent when the court responded to the note.The foreperson signed an affidavit, which was obviously drafted by an attorney, in which heclaimed that other jurors had coerced his verdict, and that he had communicated to the court thatthis was why he was uncomfortable announcing the verdict. However, during the course of aCPL 330.30 hearing, the foreperson conceded that he had never communicated to the [*2]court any discomfort with the substance of the verdict, but onlywith the process of reading it out loud; thus, he essentially corroborated the court's version of thecolloquy. The court, treating the motion as the motion of both parties, ruled that it had acted onlyministerially, that defendants had waived any challenge, and that there was no basis to set asidethe verdict.
We agree. Defendant presently argues that his own presence had been necessary and thatcounsel's presence would have elicited from the foreperson a better articulation of why he was"uncomfortable." The only reasonable conclusion to be drawn from this evidence, though, is thatthe court's interaction with the foreperson, involving only the mechanism by which the foremanwould announce the verdict, was entirely ministerial. The court simply clarified what theforeperson meant by being uncomfortable, and it did not discuss anything about the law, the factsof the case or the verdict (see People v Harris, 76 NY2d 810, 812 [1990]). Neitherdefendant nor his attorney could have made a meaningful contribution (see People v Williams, 38 AD3d429 [2007], lv denied 9 NY3d 965 [2007]), so their presence was not required(People v Collins, 99 NY2d 14 [2002]). Since the court's action was only ministerial anddid not fall within its core responsibilities in responding to a jury note (compare People v Kisoon, 8 NY3d129 [2007]), defendant was required to request a further inquiry of the foreperson orotherwise preserve a claim of error. We decline to review this unpreserved claim in the interest ofjustice. As an alternative holding, we also reject the claim on the merits. Defendant's claim thathis or his attorney's presence might have helped determine the foreperson's actual butunarticulated concern is entirely conjectural, and is belied by the hearing testimony.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Williams,Sweeny, Catterson and Moskowitz, JJ.