| People v Bogan |
| 2010 NY Slip Op 08127 [78 AD3d 855] |
| November 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v WillieBogan, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, DavidKorngold, and Seth D. Blumenthal of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered May 14, 2008, convicting him of robbery in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he did not have a constitutional right to counsel at hiscodefendants' Wade hearing (see United States v Wade, 388 US 218 [1967])"because that proceeding was not a critical stage of his trial, as it was unrelated to his prosecution"(People v Morris, 187 AD2d 460, 461 [1992]; see People v Contreras, 12 NY3d 268, 273 [2009]; People vAnderson, 16 NY2d 282 [1965]).
The defendant contends that the jury charge was incomplete on the subject of the credibility of thewitnesses, that it failed to instruct the jury that the indictment was not evidence in the case, and that itfailed to inform the jurors that they must evaluate the evidence separately as it applies to eachdefendant. The defendant also asserts that the Supreme Court's supplemental charge insufficientlyapprised the jurors that the People had the burden of establishing each element of the charged offensebeyond a reasonable doubt. Each of these alleged errors is unpreserved for appellate review(see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Brown, 71 AD3d 1043, 1044[2010]; People v Brown, 209 AD2d 428 [1994]). In any event, contrary to the defendant'scontention, the Supreme Court did instruct the jurors that they were required to evaluate the evidenceseparately as to each defendant. While the Supreme Court did not specifically instruct the jury that theindictment was not evidence, it thoroughly explained that the jury's determination was to be basedsolely on the evidence presented at trial, and that the burden was on the People to prove beyond areasonable doubt each element of the crime charged and that the defendant was the person whocommitted the crime. The charge, taken as a whole, adequately instructed the jury as to the burden ofproof, was a correct statement of the law, and sufficiently apprised the jury on weighing the credibilityof the witnesses (see People v Whalen, 59 NY2d 273, [*2]279 [1983]; People v Banks, 280 AD2d 608, 609 [2001];People v Brown, 209 AD2d 428 [1994]). Further, the supplemental charge conveyed acorrect statement of the law (see People vMateo, 5 AD3d 507 [2004]), and was consistent with the main charge, to which thedefendant did not object (see People vBrown, 71 AD3d 1043, 1044 [2010]).
The defendant failed to establish that he was prejudiced by the loss of certain Rosariomaterial (see People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866[1961]), and the Supreme Court, thus, properly declined to draw an adverse inference against thePeople with respect to the content of that material (see CPL 240.75; People v Joseph,86 NY2d 565, 570 [1995]; People v Banch, 80 NY2d 610, 616 [1992]; People vWallace, 76 NY2d 953, 955 [1990]).
The defendant claims that the Supreme Court deprived him of the right to be present during theissuance of supplemental jury instructions (see CPL 310.30). However, the record does notindicate that the defendant was absent during the instructions, and the defendant failed to come forwardwith substantial evidence to rebut the presumption of regularity that attaches to all criminal proceedings(see People v Andrew, 1 NY3d546, 547 [2003]; People vVelasquez, 1 NY3d 44, 48 [2003]; People v Talbert, 303 AD2d 696 [2003];People v Davis, 151 AD2d 596 [1989]).
The defendant was not deprived of the effective assistance of counsel, as defense counsel providedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.