| People v Rodriguez |
| 2012 NY Slip Op 02384 [93 AD3d 595] |
| March 29, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antonio Rodriguez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedSeptember 3, 2008, convicting defendant, after a jury trial, of burglary in the third degree, andsentencing him, as a second felony offender, to a term of 3½ to 7 years, unanimouslymodified, as a matter of discretion in the interest of justice, to the extent of reducing the sentenceto a term of 2½ to 5 years, and otherwise affirmed.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). Defendant failed to preserve any of his procedural objections to the court'sdisposition of the application (see People v Richardson, 100 NY2d 847, 853 [2003]).Defendant's substantive Batson arguments were insufficient to alert the trial court todefendant's claim that it had failed to follow the Batson protocol, and we decline toreview defendant's procedural claims in the interest of justice.
As an alternative holding, we also reject them on the merits. The prosecutor disclosed herreasons for her challenges, which were race-neutral, and the court heard defense counsel'sarguments as to why the reasons were pretextual. Thus, by permitting the peremptory challengesto stand, the court implicitly rejected the pretext arguments and found the proffered reasonsnonpretextual (see People v Pena, 251 AD2d 26, 34 [1998], lv denied 92 NY2d929 [1998]; compare Dolphy v Mantello, 552 F3d 236, 239 [2d Cir 2009]), even if "thecourt may have used the wrong nomenclature in describing its step-three ruling" (People v Washington, 56 AD3d258, 259 [2008], lv denied 11 NY3d 931 [2009]), a defect that could have beenreadily cured had defendant made a contemporaneous objection. The court's finding ofnonpretextuality is supported by the record with respect to each of the panelists at issue, and it isentitled to great deference (see People v Hernandez, 75 NY2d 350 [1990], affd500 US 352 [1991]).
There was no violation of defendant's right to be present at material stages of the trial.Defendant did not object to his absence from the proceedings at which the court clarified itsMolineux ruling, or at which his CPL 330.30 motion was argued and decided. While adefendant need not object to his absence from a material stage of a trial (see People vTorres, 80 NY2d 944, 945 [1992]), these proceedings were not material. Because defendant'spresence would not have [*2]had a substantial effect on his abilityto defend against the charges, these claims are unpreserved (see People v Pagan, 93NY2d 891, 892 [1999]), and we decline to review them in the interest of justice.
As an alternative holding, we also reject them on the merits. Defendant was present at theinitial proceeding, when the parties presented their Molineux arguments and the courtmade a ruling. This provided defendant with the opportunity for meaningful input regarding theuncharged crimes (see People v Spotford, 85 NY2d 593, 597 [1995]). Thus, his presencewas not necessary at a subsequent proceeding that did not modify the ruling, but only made aslight clarification (see People vLiggins, 19 AD3d 324 [2005], lv denied 5 NY3d 853 [2005]). The secondproceeding essentially involved a legal question that did not "involve[ ] factual matters aboutwhich defendant might have peculiar knowledge" (see People v Rodriguez, 85 NY2d586, 589-590 [1995]). Similarly, defendant's presence was not required at the discussion of hisCPL 330.30 motion. The motion involved a legal issue relating to undisputed facts (see People v Fabricio, 3 NY3d402, 406 [2004]).
Although the People's posttrial disclosure of certain grand jury minutes violated People vRosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]), defendant is notentitled to a new trial. Defendant raised his Rosario claim by way of a CPL 330.30 (3)motion to set aside the verdict on the ground of newly discovered evidence. That type of motionrequires a showing that the new evidence created a probability of a more favorable result, anddefendant fell far short of meeting that standard. In any event, regardless of any proceduralissues, defendant has not shown prejudice under the "reasonable possibility" standard containedin CPL 240.75. The grand jury minutes at issue did not contain any useful impeachment material,and defendant's claim that their nondisclosure nevertheless impaired his trial strategy isunpersuasive.
Defendant's claim of ineffective assistance of counsel is not reviewable on direct appealbecause it involves matters outside the record (see People v Rivera, 71 NY2d 705, 709[1988]). On the existing record, to the extent it permits review, we find that defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Counsel'salleged deficiencies did not deprive defendant of a fair trial, affect the outcome of the case, orcause defendant any prejudice (see Strickland, 466 US at 694).
We find the sentence excessive to the extent indicated. Concur—Mazzarelli, J.P.,Andrias, Moskowitz, Acosta and Abdus-Salaam, JJ.