| People v Fields |
| 2014 NY Slip Op 01459 [115 AD3d 673] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alfred Fields, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered May 3, 2011, convicting him of assault in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that various questions and remarks made by the prosecutorduring voir dire, opening statement, and summation were improper and deprived him of afair trial. The challenged comments and questions during voir dire either were notimproper (see CPL 270.15 [1] [c]; People v Dashosh, 59 AD3d 731, 731 [2009]; seegenerally People v Jean, 75 NY2d 744, 745 [1989]; People v Boulware, 29NY2d 135, 140-141 [1971], cert denied 405 US 995 [1972]), or wereappropriately addressed by the Supreme Court, thereby alleviating any prejudice to thedefendant (see People vGuay, 72 AD3d 1201, 1203 [2010]; People v Varmette, 70 AD3d 1167, 1168 [2010]).Moreover, most of the challenged remarks during summation constituted fair commenton the evidence, were responsive to arguments made by the defense, or remained withinthe "broad bounds of rhetorical comment permissible in closing arguments" (People vGalloway, 54 NY2d 396, 399 [1981]; see People v Burgos, 97 AD3d 689, 690 [2012]; People v Martinez, 95 AD3d462, 462 [2012]; People vDunbar, 74 AD3d 1227, 1228 [2010]). Although the challenged commentduring the prosecutor's opening statement and some of the remarks during summationwere improper, they were not so flagrant or pervasive as to deprive the defendant of afair trial (see People vWard, 106 AD3d 842, 843 [2013]; People v Persaud, 98 AD3d 527, 529 [2012]; People v Porco, 71 AD3d791, 794 [2010], affd 17 NY3d 877, cert denied 566 US —,132 S Ct 1860 [2012]; People vBrown, 67 AD3d 523, 524 [2009]). Thus, a new trial is not warranted.
Contrary to the defendant's contention, certain communications made by a courtofficer to a juror were purely ministerial in nature (see People v Guardino, 62 AD3d 544, 546 [2009], affdsub nom. People v Hecker, 15 NY3d 625 [2010], cert denied sub nom., Black vNew York, 563 US —, 131 S Ct 2117 [2011]; People v Alicea, 272AD2d 241, 242 [2000]; People v Torres, 174 AD2d 586, 586-587 [1991]).Accordingly, there was no improper delegation of judicial authority and the defendant'spresence was not required when the court officer spoke to the juror (see People vBonaparte, 78 NY2d 26, 30-31 [1991]; People v Dargan, 101 AD3d 1143, 1143-1144 [2012]; People v Miller, 57 AD3d568, 569 [2008]; People v[*2]Vasquez, 2 AD3d 759, 760 [2003]).
The defendant's contention that reversal is required because the Supreme Court tookthe verdict in his absence is without merit. Although a defendant has a fundamental rightto be present at all material stages of his or her trial, including the rendering of theverdict (see CPL 310.40 [1]; People v Febo, 210 AD2d 251, 252 [1994]),he or she may forfeit that right by deliberately absenting himself or herself from theproceedings (see People v Brooks, 75 NY2d 898, 899 [1990]; People vSanchez, 65 NY2d 436, 443-444 [1985]). The record supports the court'sdetermination that the defendant's absence at the time his trial reconvened and the juryrendered the verdict was deliberate (see People v Collins, 29 AD3d 434, 434 [2006]) and that,therefore, his conduct "unambiguously indicate[d] a defiance of the processes of lawsufficient to effect a forfeiture" (People v Sanchez, 65 NY2d at 444; see People v Traylor, 74 AD3d1251, 1252 [2010]; cf. People v Lamb, 235 AD2d 829, 829 [1997]).Rivera, J.P., Leventhal, Austin and Roman, JJ., concur.