| People v Dickson |
| 2011 NY Slip Op 01541 [82 AD3d 1289] |
| March 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Terrell M.Dickson, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Linda Gafford of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Rowley, J.), rendered October 15,2009 in Tompkins County, upon a verdict convicting defendant of the crimes of stalking in thethird degree and endangering the welfare of a child.
Defendant and the victim were involved in a heated argument in their home, during whichdefendant threw objects, overturned furniture, dumped a fish tank containing water and fish onthe floor and yelled obscenities. Two children, Terrell (born 2002) and Hayley (born 2006), werein the home at the time. Defendant was ultimately charged with menacing in the second degree(two counts), criminal possession of a weapon in the fourth degree, stalking in the third degree,criminal mischief in the fourth degree and endangering the welfare of a child (two counts). Aftera jury trial, defendant was convicted of the crimes of stalking in the third degree and one count ofendangering the welfare of a child and was acquitted of the remaining charges. He was sentencedto concurrent jail terms of one year. This appeal ensued.
Defendant first contends that his statutory and constitutional rights to be present at allmaterial stages of the trial were violated because Supreme Court empaneled a jury outside hispresence and without his attorney's consent. We disagree. The court conducted the selection oftwo juries from one venire panel and said panel was sworn outside the presence of defendant andhis counsel. After the court and counsel in the other case selected a trial jury from the panel, the[*2]remaining jurors were included in the process of selecting thetrial jury for defendant's case. Defendant and his counsel were present for selection of the trialjurors and for the administration of the oath to the jury empaneled for his case. Defendant madeno objection to the venire panel having initially been sworn in his and his counsel's absence.
Defendant's failure to preserve this issue does not prevent our review (see People v Garbutt, 42 AD3d665, 667 [2007]). Nor do we find that defendant affirmatively waived his objection (seegenerally People v Moore, 233 AD2d 670, 672 [1996], lv denied 89 NY2d 987[1997]). In any event, it is well settled that jury selection is considered an ancillary proceedingthat will not have substantial impact on a criminal trial's outcome (see People v Maher,89 NY2d 318, 324 [1996]; People v Roman, 88 NY2d 18, 25 [1996]; People vElliot, 299 AD2d 731, 734 [2002]). Inasmuch as the swearing of the jury venire panel did not"involve[ ] factual matters about which defendant might have peculiar knowledge that would beuseful in advancing [his] or countering the People's position" (People v Dokes, 79 NY2d656, 660 [1992]), his absence at the time of the panel's swearing cannot be said to have asignificant effect on his ability to defend himself such that it would warrant reversal (seePeople v Velasco, 77 NY2d 469, 472 [1991]; People v Bryan, 46 AD3d 1219, 1220 [2007], lv denied 10NY3d 809 [2008]).
Defendant's next contention—that the conviction of endangering the welfare of a childas it related to Terrell was repugnant to his acquittal of that charge as it related toHayley—is not preserved for our review as defendant failed to make any objection beforethe jury was discharged (see People vMurphy, 66 AD3d 1234, 1236 [2009]; People v Perry, 27 AD3d 952, 953 [2006], lv denied 8NY3d 883 [2007]). In any event, given the differing proof as to each child, such contention iswithout merit (see generally People vFaccio, 33 AD3d 1041, 1043-1044 [2006], lv denied 8 NY3d 845 [2007]).
Nor did defendant preserve his claim that Supreme Court committed reversible error when itpermitted the People to admit evidence of certain prior bad acts during their case-in-chief(see CPL 470.05 [2]; People vMarmulstein, 6 AD3d 879, 881 [2004], lv denied 3 NY3d 660 [2004];People v McClain, 250 AD2d 871, 872 [1998], lv denied 92 NY2d 901 [1998]).Were we to address the merits of defendant's claim, we would find it unpersuasive as SupremeCourt properly found such evidence to be legally relevant and material on an issue raised bydefendant and determined that its probative value outweighed the potential prejudice todefendant (see People v Betters, 41AD3d 1040, 1042 [2007]). While it would have been preferable for the court to fullyarticulate its balancing of the factors involved, its failure to do so here does not require reversal(see People v Meseck, 52 AD3d948, 950 [2008]). In addition, Supreme Court instructed the jury on the limited purpose forwhich the information was being introduced.
We also find no merit to defendant's argument that Supreme Court erred in declining to givethe legal definition of "course of conduct" during the charge to the jury. The charge givensufficiently articulated the required legal standard for stalking in the third degree in a manner thatwould enable the jury to clearly understand the proper rules to be applied in arriving at a verdict(see generally People v Samuels, 99 NY2d 20, 25 [2002]; People v Ladd, 89NY2d 893, 895 [1996]; see also People v Stuart, 100 NY2d 412, 427 [2003]).
Mercure, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.