| People v Lee |
| 2008 NY Slip Op 09196 [56 AD3d 1250] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David J. Lee,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Patrick M. Carney, A.J.), rendered March1, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree(two counts). The trial was conducted in Supreme Court, Erie County (Amy J. Fricano, J.).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countsof robbery in the second degree (Penal Law § 160.10 [1], [2] [b]), defendant contends thatSupreme Court erred in denying his Batson challenge to the prosecutor's use of aperemptory challenge with respect to an African-American prospective juror. We reject thatcontention inasmuch as defendant failed to establish a prima facie case of discrimination (seePeople v Jones, 11 NY3d 822 [2008]; People v Brown, 17 AD3d 283, 284 [2005],lv denied 5 NY3d 804 [2005]; cf. People v Rosado, 45 AD3d 508[2007]).
The further contention of defendant that the testimony of his accomplices was notcorroborated by independent evidence is not preserved for our review (see People v Gray,86 NY2d 10, 19 [1995]; People v Waldriff, 46 AD3d 1448 [2007], lv denied 9NY3d 1040 [2008]). In any event, that contention is without merit because the People presentedevidence that "connect[ed] the defendant with the crime in such a way that the jury may bereasonably satisfied that the accomplice[s] [were] telling the truth" (People v Daniels, 37NY2d 624, 630 [1975]; see CPL 60.22 [1]; People v Bass, 255 AD2d 689, 691[1998], lv denied 93 NY2d 966 [1999]). Defendant's further contention concerning thelegal sufficiency of the evidence before the grand jury "is not reviewable on an appeal from anensuing judgment based upon legally sufficient trial evidence" (People v Paulick, 206AD2d 895, 896 [1994]; see CPL 210.30 [6]; People v Horton, 216 AD2d 913[1995], lv denied 87 NY2d 902 [1995]).
We reject the contention of defendant that he was denied his right to be present at a materialstage of the trial, i.e., two bench conferences held outside his presence, and thus that he isentitled to a reconstruction hearing to determine what was discussed at those bench conferences.Although "a defendant has a fundamental right to be present during any material [*2]stage of the trial" (People v Antommarchi, 80 NY2d 247,250 [1992], rearg denied 81 NY2d 759 [1992]), reversal is not required wheredefendant's exclusion was from bench conferences at which only questions of law or procedurewere discussed (see People v Fabricio, 3 NY3d 402, 406 [2004]; People v Afrika,13 AD3d 1218, 1222 [2004], lv denied 4 NY3d 827 [2005]; see also People vRobinson, 28 AD3d 1126, 1128 [2006], lv denied 7 NY3d 794 [2006]). Here, thecourt ensured that defendant was present during conferences concerning evidence and trialtestimony, and there is nothing in the record to support the contention of defendant that the twobench conferences that he did not attend involved questions other than those of law or procedure.
Defendant further contends that the court erred in denying his request to charge Penal Law§ 20.10, pursuant to which an individual is not liable as an accomplice to a crime "whenhis [or her] own conduct, though causing or aiding the commission of such offense, is of a kindthat is necessarily incidental thereto." We reject that contention inasmuch as there is no evidenceto support a finding that defendant's conduct was necessarily incidental to the robbery (cf.People v Gray, 284 AD2d 1012 [2001], lv denied 97 NY2d 682 [2001]; seegenerally People v Manini, 79 NY2d 561, 569-571 [1992]). We further conclude that thecourt properly allowed the courtroom deputies to testify concerning defendant's allegedlythreatening hand gestures toward witnesses during the trial. Evidence of threats made bydefendant to witnesses may be "probative of defendant's consciousness of guilt" and thus may beadmissible on that ground (People v Sherk, 217 AD2d 958, 958 [1995]; see People vLuper, 201 AD2d 867 [1994], lv denied 83 NY2d 912 [1994]). In any event, anyprejudice resulting from that testimony "was ameliorated because defendant had an opportunityto cross-examine the witness[es] fully with regard to the incident[s]" (Sherk, 217 AD2dat 958), and the court instructed the jury on the "slight value" of that testimony with respect todefendant's consciousness of guilt (People v Spruill, 299 AD2d 374, 375 [2002]).
Finally, we conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]), and that the sentence is not undulyharsh or severe. Present—Scudder, P.J., Centra, Fahey, Peradotto and Green, JJ.