| People v Williams |
| 2008 NY Slip Op 03392 [50 AD3d 472] |
| April 17, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Raheim Williams, Appellant. |
—[*1] Raheim Williams, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J., at suppression hearing;Daniel P. FitzGerald, J., at jury trial and sentence), rendered December 15, 2005, convictingdefendant, of six counts of robbery in the first degree, and sentencing him, as a second felonyoffender, to concurrent terms of 20 years, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. There isno basis for disturbing the court's credibility determinations, which are supported by the record(see People v Prochilo, 41 NY2d 759, 761 [1977]). The hearing evidence credited by thecourt established that defendant never requested that his counsel be present at his lineup.
Defendant failed to make a record that is sufficient to permit review (see People vKinchen, 60 NY2d 772, 773-774 [1983]; People v Johnson, 46 AD3d 415 [2007]) of his claim that the courtdid not provide defense counsel with notice of jury notes and an opportunity to be heardregarding the court's responses (see People v O'Rama, 78 NY2d 270 [1991]). Viewed inlight of the presumption of regularity that attaches to judicial proceedings (see People v Velasquez, 1 NY3d44, 48 [2003]), the existing record, to the extent it permits review, demonstrates that thecourt satisfied its "core responsibility" under People v Kisoon (8 NY3d 129, 135 [2007]) to disclose jury notesand permit comment by counsel. The court specifically invited the attorneys to read any jurynotes and assist in formulating responses. Furthermore, the court read each note into the record,except for notes merely requesting exhibits, and a note concerning a readback where the recordclearly reflects counsel's input into the response. Accordingly, counsel's failure to object to theprocedure employed by the court or to its responses to the jury notes renders the claim that thecourt violated CPL 310.30 unpreserved (see e.g. People v Salas, 47 AD3d 513 [2008]), and we decline to review itin the interest of justice. As an alternative holding, we also reject it on the merits. The courtmerely provided exhibits, readback of testimony and a rereading of a charge already provided tothe jury, [*2]in addition to advising the jury that it could notanswer its factual questions about matters outside the record. Counsel's input into any responsecould have only been minimal.
The court properly exercised its discretion in summarily denying defendant's CPL 330.30 (2)motion to set aside the verdict on the ground of juror misconduct. Defendant failed to establishthat he was prejudiced by a midtrial conversation between the foreperson and her friend, duringwhich the foreperson discovered that her friend was defendant's niece, and proceeded tocomment briefly on the trial. On the contrary, this incident was, if anything, beneficial todefendant (see People v Clark, 81 NY2d 913, 914 [1993]). The remainder of defendant'smotion was an impermissible effort to impeach the verdict by probing into the jury's deliberativeprocess (see People v Maragh, 94 NY2d 569, 573 [2000]).
We have considered and rejected defendant's pro se claims. Concur—Andrias, J.P.,Friedman, Buckley, Catterson and Acosta, JJ.