| People v Singletary |
| 2009 NY Slip Op 07505 [66 AD3d 564] |
| October 22, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v RichSingletary, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered September 24,2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony drug offender, to a term of four years,unanimously affirmed.
There is no record support for defendant's claim that the court singled out a holdout juror andgave her an allegedly coercive individual instruction. During deliberations, the jury revealed thatit was deadlocked 11 to 1. Later in deliberations, the jury sent a note stating that a particularjuror wanted to speak with the court individually and was refusing to continue deliberating in theinterim. The court interviewed this juror in the presence of defendant and counsel, and shespecifically stated that her problem "isn't with whose [sic] going which way"; instead,she complained that another juror was using a BlackBerry that should have been taken from herprior to deliberations. After the BlackBerry was taken from the juror, the complaining jurorstated that she still did not wish to continue deliberating. The court, however, directed her to doso, and she acquiesced in the directive. The record evidence is insufficient to support theconclusion that this juror was the holdout juror. Accordingly, defendant has failed to meet hisburden of providing a factual record sufficient to permit appellate review of this claim (seePeople v Kinchen, 60 NY2d 772, 773-774 [1983]). In any event, regardless of whether thejuror at issue was the lone holdout, the court's instruction to her was not coercive and it did notdeprive defendant of a fair trial.
When a court officer reported to the court that, in his presence, the juror with the BlackBerrymade a job-related call and discussed "absolutely nothing" about the case, there was nousurpation or improper delegation of a judicial function, or any violation of defendant's right tobe present at all material stages of his trial, his right to counsel, and his right to a jury of 12persons. The officer, who did not give any legal instructions to the juror or any other jurors,simply supplied information upon which the court made its own determination that no action,other than removing the BlackBerry, was warranted (see People v Smith, 304 AD2d 364[2003], lv denied 100 NY2d 566 [2003] [no improper delegation where court relied onnonjudicial personnel to inquire as to absent juror's unavailability for CPL 270.35 purposes];People v Bruno, 295 AD2d 228, 229 [2002], lv denied 99 NY2d 533 [2002][same]). Since the officer's role was entirely ministerial (see People v Bonaparte, 78NY2d 26, 30-31 [1991]), defendant's [*2]claim is not exemptfrom preservation requirements, and we decline to review this unpreserved claim in the interestof justice. As an alternative holding, we also reject it on the merits.
The court properly admitted the undercover officer's testimony that at the time of the chargedsale he recognized defendant from a previous encounter during which defendant had told himthat he knew he was an officer and that he should leave the area. Even assuming that thisconduct amounted to obstructing governmental administration "by means of intimidation" (PenalLaw § 195.05) or otherwise constituted an uncharged crime or bad act, the evidence wasrelevant to the issue of the officer's ability to identify defendant as the seller, and its probativevalue outweighed its prejudicial effect, which was minimized by the court's limiting instructions."Contrary to defendant's argument, a pattern of crimes employing a unique modus operandi isnot the exclusive situation in which uncharged crimes may be probative of identity" (Peoplev Laverpool, 267 AD2d 93, 94 [1999], lv denied 94 NY2d 904 [2000]; see alsoPeople v Carter, 77 NY2d 95, 107 [1990], cert denied 499 US 967 [1991];People v Gines, 36 NY2d 932 [1975]). Limiting the officer to testifying about anunexplained prior encounter would have deprived the jury of the full explanation for the officer'sfocus on defendant (see e.g. People v Matthews, 276 AD2d 385 [2000], lvdenied 96 NY2d 736 [2001]). In addition, we note that the prejudice to defendant wasfurther reduced when his counsel made affirmative use of this evidence, arguing that his clientwould not have sold drugs to a person he had previously recognized as an officer.Concur—Friedman, J.P., McGuire, Moskowitz, Acosta and DeGrasse, JJ.