| People v Walker |
| 2012 NY Slip Op 04580 [96 AD3d 1481] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Benny L.Walker, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered July 8, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe second degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts of sexual abuse in the second degree (Penal Law § 130.60 [2]). Defendantcontends that Supreme Court committed reversible error when, at the start of the second day ofjury selection, it questioned and then discharged a sworn juror in the absence of defendant anddefense counsel. Although defendant did not object to the procedure employed by the court, weagree with defendant that preservation of his contention is not required where, as here, the courtcommitted a mode of proceedings error (see generally People v Patterson, 39 NY2d 288,295 [1976], affd 432 US 197 [1977]). The court's in camera questioning and discharge ofthe sworn juror deprived defendant of, inter alia, his "constitutional right to counsel at trial"(People v Johnson, 189 AD2d 318, 320 [1993]; see People v McLean, 15 NY3d 117, 120-121 [2010]; People vAhmed, 66 NY2d 307, 310 [1985], rearg denied 67 NY2d 647 [1986]; People vKinchen, 60 NY2d 772, 773 [1983]). Nevertheless, "[w]aiver and preservation are separateconcepts" (Ahmed, 66 NY2d at 311; see People v Webb, 78 NY2d 335, 339-340[1991]; People v Moore, 233 AD2d 670, 671-672 [1996], lv denied 89 NY2d 987[1997]), and we agree with the People that, by consenting to the procedure employed by thecourt, defendant waived his right to appellate review of the court's allegedly improper dischargeof the sworn juror (see People vBarner, 30 AD3d 1091, 1092 [2006], lv denied 7 NY3d 809 [2006]; cf. People v Noguel, 93 AD3d1319, 1320 [2012]; see also Peoplev Davis, 83 AD3d 860, 861 [2011]; People v Pennisi, 217 AD2d 562, 563[1995], lv denied 86 NY2d 800 [1995]; see generally People v Colon, 90 NY2d824, 825-826 [1997]).
Defendant's further contention that the court erred in permitting a police impact investigatorto use the word "victim" during his testimony concerning his interview of the complainant lacksmerit. He did not testify to the contents of his interview with the complainant, nor did he give anopinion relating to the complainant's credibility or defendant's guilt, and thus he did not therebybolster the complainant's testimony (see generally People v Buie, 86 NY2d 501, 509-510[1995]), or otherwise usurp the jury's role as factfinder (see generally People v Hartzog,[*2]15 AD3d 866, 867 [2005], lv denied 4 NY3d 831[2005]). In any event, the court instructed the jury both during the investigator's testimony and itscharge that the jurors were the ultimate finders of fact and resolvers of credibility, and the jury ispresumed to have followed the court's instructions (see generally People v Moore, 71NY2d 684, 688 [1988]; People vThagard, 28 AD3d 1097, 1098 [2006], lv denied 7 NY3d 795 [2006]). Evenassuming, arguendo, that the court erred in admitting the investigator's testimony, however, weconclude that the error is harmless (see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). Present—Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.