| People v Rivera |
| 2011 NY Slip Op 02547 [83 AD3d 1370] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Hector Rivera,Appellant. |
—[*1] Hector Rivera, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John D. Doyle, J.), renderedJuly 28, 1992. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On a prior appeal, we affirmed the judgment convicting defendant of murderin the second degree under Penal Law § 125.25 (1) (People v Rivera, 206 AD2d832 [1994], lv denied 84 NY2d 871 [1994]). We subsequently granted defendant'smotion for a writ of error coram nobis on the ground that appellate counsel had failed to raise anissue on appeal that may have merit, i.e., that Supreme Court erred in responding to notes fromthe jury during its deliberations (Peoplev Rivera, 70 AD3d 1517 [2010]), and we vacated our prior order. We now consider theappeal de novo.
Contrary to defendant's contention, we conclude that the court fulfilled its "coreresponsibilities under CPL 310.30" (People v Tabb, 13 NY3d 852, 853 [2009]). The record establishesthat the court provided a nearly verbatim summary of the contents of the notes in open court, inthe presence of defendant and defense counsel, before responding to the notes (see People v Bonner, 79 AD3d1790, 1791 [2010]; People vSalas, 47 AD3d 513 [2008], lv denied 10 NY3d 844 [2008]). Defendanttherefore was required to register an objection in order to preserve for our review his challenge tothe procedure employed by the court in responding to the jury notes, "at a time when any error bythe court could have been obviated by timely objection" (People v Starling, 85 NY2d509, 516 [1995]; see People vRamirez, 15 NY3d 824, 825-826 [2010]; cf. People v Kisoon, 8 NY3d 129, 134 [2007]). We decline toexercise our power to address defendant's contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
We reject the further contention of defendant that he was deprived of the right to be presentduring sidebar discussions with prospective jurors. The decision of the Court of Appeals inPeople v Antommarchi (80 NY2d 247 [1992], rearg denied 81 NY2d 759 [1992])does not apply herein because defendant's trial was conducted before that decision was issued(see People v Mitchell, [*2]80 NY2d 519, 528 [1992]).Thus, applying the law in effect at that time, defendant had no right to be present at benchconferences unless they "concern[ed] the very same witnesses and events which were to beinvolved in the case to be tried" (id. at 529; see People v Sloan, 79 NY2d 386,392 [1992]; People v Siler, 197 AD2d 842, 843-844 [1993], lv denied 82 NY2d903 [1993]). Here, a prospective juror notified the court that she recognized an individual in thecourtroom. The prosecutor asked to approach the bench, and an off-the-record discussion ensuedbetween the court, the prosecutor and defense counsel. The court then summoned the prospectivejuror to the bench and, after a further off-the-record discussion, the court excused the prospectivejuror. Although defendant asserts that the unidentified individual was "likely the [victim]'smother, [or] one of the People's witnesses," defendant provides no record support for thatassertion, and thus it is based on sheer speculation (see People v Davilla, 249 AD2d 179,180-181 [1998], lv denied 92 NY2d 924 [1998], cert denied 526 US 1122[1999]). Defendant has the burden of establishing his absence from a material stage of the trial(see People v Velasquez, 1 NY3d44, 47-48 [2003]), i.e., the aforementioned bench conferences, and here he failed to meetthat burden. Had he met that burden, the remedy to review his present contention would be areconstruction hearing with respect to those bench conferences, because there is no factual recordto enable this Court to review defendant's claimed violation of his Sloan rights (seeDavilla, 249 AD2d at 180-181; see generally People v Kinchen, 60 NY2d 772,773-774 [1983]). As noted, however, defendant failed to meet his burden of establishing hisabsence from a material stage of the trial (see Velasquez, 1 NY3d at 47-48).
We further conclude that the court properly refused to suppress physical evidence obtainedduring the search of a vehicle and a yard. With respect to the vehicle, defendant failed todemonstrate any legitimate expectation of privacy therein and thus has no standing to challengethe search (see People v Shire, 77AD3d 1358, 1359-1360 [2010], lv denied 15 NY3d 955 [2010]). It is undisputed thatdefendant did not own the vehicle and that he was not in the vicinity of the vehicle at the time ofthe search, which took place on a public street more than four hours after defendant had left hisapartment in it, shortly after the murder. Although defendant's sister testified at the suppressionhearing that the vehicle was "a family car" and that "[w]e all take turns" driving the vehicle, thattestimony is insufficient to meet defendant's burden of establishing a reasonable expectation ofprivacy in the vehicle (see People v Di Lucchio, 115 AD2d 555, 556-557 [1985], lvdenied 67 NY2d 942 [1986]; see also People v Ortiz, 83 NY2d 840, 843 [1994]; People v Rosario, 64 AD3d 1217[2009], lv denied 13 NY3d 941 [2010]). In any event, the warrantless search of thevehicle was lawful inasmuch as it was based on the voluntary consent of the owner of the vehicle(see People v Adams, 53 NY2d 1, 8 [1981], rearg denied 54 NY2d 832 [1981],cert denied 454 US 854 [1981]; People v Johnson, 202 AD2d 966, 967 [1994],lv denied 84 NY2d 827 [1994]).
As for the seizure of defendant's bicycle from the yard of an apartment building, it is wellsettled that, "where two or more individuals share a common right of access to or control of theproperty to be searched, any one of them has the authority to consent to a warrantless search inthe absence of the others" (People v Cosme, 48 NY2d 286, 290 [1979]; see People vSawyer, 135 AD2d 1083, 1083-1084 [1987]). "[A]lthough a party who shares premises witha defendant may not consent to a search of defendant's personal effects absent a common right ofcontrol over the item searched . . . , a different rule obtains where the defendant isabsent from the premises . . . In that event, one with a shared right of access to thepremises may consent to the search of objects located therein, including the personal effectsof the absent defendant" (Sawyer, 135 AD2d at 1084 [emphasis added]). Here, twoof the tenants of the apartment building gave the police permission to enter the yard of thepremises to search for defendant's bicycle, in defendant's absence. Once the police entered theyard, they observed bloodstains on the handlebars and along the crossbar of the bicycle. Thus, thebicycle was properly seized as evidence of a crime (see People v Loomis, 17 AD3d 1019, 1021 [2005], lvdenied 5 NY3d 830 [2005]; People v Brown, 226 AD2d 1108 [1996], lv denied88 NY2d 964 [1996]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.