| People v Russell |
| 2008 NY Slip Op 07702 [55 AD3d 940] |
| October 9, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Heath B. Russell,Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Ann C. Sullivan, New York ProsecutorsTraining Institute, Albany, of counsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Warren County (Berke, J.), rendered October 20,2005, upon a verdict convicting defendant of the crimes of murder in the second degree and criminalpossession of a weapon in the fourth degree.
After we reversed defendant's judgment of conviction and remitted for a new trial (16 AD3d 776[2005], lv denied 5 NY3d 809 [2005]), he was again convicted of murder in the seconddegree and criminal possession of a weapon in the fourth degree, prompting this appeal. We withhelddecision, however, upon finding that a portion of the jury instructions given by County Court (Berke, J.)might have been omitted from the trial transcript, and remitted the matter for the court to settle therecord (48 AD3d 900 [2008]). Following a reconstruction hearing at which the Trial Judge, the courtreporter who had transcribed the trial proceedings and the Assistant District Attorney testified, CountyCourt (Pritzker, J.) settled the record by adding an eight-page excerpt reconstructed from the courtreporter's manually recorded stenotype notes.
In light of the resettled record, which now includes instructions regarding reasonable doubt, burdenof proof and presumption of innocence, there is no merit in defendant's original contention that CountyCourt (Berke, J.) failed to give those instructions. Nor did County Court (Pritzker, J.) improperly settlethe record. Given the testimony at the reconstruction hearing, the [*2]People established that the disputed jury instructions were given and onlyinadvertently omitted from the original transcript (see People v Cohen, 12 AD3d 1134, 1134 [2004]).
We are also unpersuaded that County Court (Berke, J.) erred in denying defendant's challenges forcause during jury selection based upon two jurors' comments regarding media coverage. Although oneprospective juror indicated that she had formed a negative opinion based upon a newspaper article, shethen stated that she could put it aside and decide the case based upon the evidence. The second jurorindicated that he had read a newspaper article about the case, but had not formed an opinion basedupon it. Thus, both jurors demonstrated an ability to be fair and render an impartial verdict based uponthe evidence, and it was not improper to deny defendant's challenge for cause (see e.g. People vWilliams, 63 NY2d 882, 885 [1984]; People v Willard, 226 AD2d 1014, 1017-1018[1996], lv dismissed 88 NY2d 943 [1996]).
We have considered defendant's remaining arguments regarding the prosecutor's allegedmisconduct during summation and his own counsel's ineffective assistance, and find them both to beunavailing.
Cardona, P.J., Peters, Carpinello and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.