| People v Mauro |
| 2008 NY Slip Op 01843 [49 AD3d 268] |
| March 4, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TonyMauro, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), forrespondent.
Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J.), rendered June 8, 2005,convicting defendant, after a nonjury trial, of robbery in the first degree, robbery in the seconddegree (two counts) and criminal possession of a weapon in the fourth degree, and sentencinghim, as a second felony offender, to an aggregate term of eight years, unanimously affirmed.
Defendant's challenge to the voluntariness of his duly executed, open-court jury waiver isunpreserved (see People v Johnson, 51 NY2d 986 [1980]), and we decline to review it inthe interest of justice. As an alternative holding, we also reject it on the merits. Defendant wasfully aware, prior to waiving his right to a jury trial, that there had been a conference among thecourt, the prosecutor and the reluctant complaining witness, without defendant and his counsel,during which the court explained to the witness that he could be compelled to testify and couldbe jailed if he failed to do so. It was not necessary to inform defendant that his waiver meant hewas waiving the right to factfinders who had not had such ex parte communications (see People v Smith, 6 NY3d 827,828 [2006], cert denied 548 US 905 [2006] [while allocution bycourt is preferred practice, "no particular catechism is required to establish the validity of a jurytrial waiver"]). The record establishes that defendant's waiver was knowing, intelligent andvoluntary.
Defendant did not preserve any of his constitutional or other challenges to the fact that thecourt conducted an in camera, ex parte proceeding involving the prosecutor and complainingwitness, and we decline to review them in the interest of justice. As an alternative holding, wealso reject them on the merits. This conference, which resulted in the witness's compliancewithout the necessity of a material witness order, was indistinguishable from a material witnessproceeding under CPL article 620. Such a proceeding is brought against a recalcitrant witness bythe party seeking to call such witness. The proceeding seeks an order fixing bail to secure theattendance of a witness who would not be amenable or responsive to a subpoena; it has nothingto do with the content of the witness's testimony or any legal or factual issue that might involvethe opposing party in the underlying criminal case (see People v Hamilton, 272 AD2d[*2]553 [2000], lv denied 95 NY2d 935 [2000];People v Lovett, 192 AD2d 326 [1993], lv denied 82 NY2d 722 [1993]).Moreover, the existence of a record of the conference was disclosed to defendant and the recordclearly established that no facts or trial issues were discussed (compare People v Ortega,78 NY2d 1101 [1991]). Concur—Andrias, J.P., Friedman, Buckley, McGuire andMoskowitz, JJ.