| People v Carr |
| 2013 NY Slip Op 07552 [111 AD3d 472] |
| November 14, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Lee Carr, Appellant. |
—[*1] Lee Carr, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered June 10,2009, convicting defendant, after a jury trial, of murder in the second degree, andsentencing him to a term of 25 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury'sdeterminations concerning credibility. The testimony of the People's main witness wascorroborated by other evidence, including testimony that defendant helped dispose of thevictim's body under circumstances warranting an inference that defendant hadparticipated in the murder.
Defendant's right to counsel and right to be present at material stages of the trial werenot violated when the court had an ex parte, in camera conversation with the People'smain witness, regarding the witness's assertion that he was too ill to testify that day. Thisinquiry was not a hearing, nor part of the trial, and it did not involve the determination ofany issue requiring input from defendant or his counsel (see e.g. People vHamilton, 272 AD2d 553 [2d Dept 2000], lv denied 95 NY2d 935 [2000];People v Valenzuela, 234 AD2d 219 [1st Dept 1996], lv denied 89 NY2d1041 [1997]; People v Lovett, 192 AD2d 326 [1st Dept 1993], lv denied82 NY2d 722 [1993]). The court placed sufficient information on the record aboutwhat transpired at the conference, and defendant was not prejudiced by the fact that theconference was unrecorded. There was no impairment of defendant's ability tocross-examine this witness about all matters relating to his credibility, including drugabuse.
The court properly declined to charge assault in the third degree as a lesser includedoffense. Defendant's arguments on this issue are generally similar to arguments that wereunsuccessfully raised on a codefendant's appeal (People v Cates, 92 AD3d 553 [1st Dept 2012], lvdenied 18 NY3d 992 [2012]). To the extent there were any factual differencesbetween defendant's situation and that of the codefendant, we conclude that they do notwarrant a different result.
At sentencing, the court sufficiently accorded defense counsel an opportunity tospeak on [*2]defendant's behalf (see CPL380.50; People v McClain, 35 NY2d 483 [1974], cert denied 423 US 852[1975]).
Defendant's pro se argument concerning the court's charge is without merit.Defendant's remaining pro se claims are unpreserved or otherwise unreviewable, and wedecline to review them in the interest of justice. As an alternative holding, we reject themon the merits. Concur—Gonzalez, P.J., Friedman, Sweeny, Moskowitz and Clark,JJ.