| People v Hunter |
| 2014 NY Slip Op 02179 [115 AD3d 1330] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Christopher D. Hunter, Appellant. |
—[*1] Christopher D. Hunter, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen K. Lindley,J.), rendered December 17, 2007. The judgment convicted defendant, upon a jury verdict,of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]). We rejectdefendant's contention that he was denied a fair trial based on comments by theprosecutor during summation concerning the defense of extreme emotional disturbanceand Supreme Court's ruling in response to his objection to those comments. We agreewith defendant that, in making its ruling, the court improperly stated that "mercy" was anelement of that defense (see § 125.25 [1] [a]). We note, however, that thecourt thereafter properly instructed the jury on the statutory elements of the defense andproperly stated the fundamental legal principles applicable thereto. We conclude that theisolated misstatement by the court was satisfactorily corrected by the court's proper juryinstructions (see generally People v Higgins, 188 AD2d 839, 841 [1992], lvdenied 81 NY2d 972 [1993]).
Contrary to defendant's further contention, we conclude that the prosecutor'scomments during summation concerning the lack of mercy shown by defendant towardthe victim were a fair response to defense counsel's summation (see People v Ali, 89 AD3d1412, 1414 [2011], lv denied 18 NY3d 881 [2012]). "Even assuming,arguendo, that the prosecutor's comments were beyond [the broad bounds of rhetoricalcomment permissible], we conclude that they were not so egregious as to deprivedefendant of a fair trial" (Peoplev McEathron, 86 AD3d 915, 916 [2011], lv denied 19 NY3d 975[2012]).
We reject defendant's contention that he was denied the right to be present during amaterial stage of the trial. Here, in his omnibus motion, defendant sought a ruling topreclude the People from admitting evidence of defendant's prior convictions and badacts, while the People, pursuant to Sandoval and Molineux, sought apretrial ruling permitting them to use at trial [*2]defendant's five prior misdemeanor and felony convictionsand six letters that he had written to his wife. Defense counsel agreed on the record to theprocedure whereby the court would render a decision on the parties' written submissionswith respect to those matters before opening statements, and we conclude that defendanthad the opportunity to contribute to defense counsel's written submission (see People v Liggins, 19 AD3d324, 325 [2005], lv denied 5 NY3d 853 [2005]). Prior to openingstatements, the court called the prosecutor and defense counsel to the bench to apprisethem of its Sandoval and Molineux rulings. Defendant's physicalpresence was not required at that bench conference inasmuch as the court was " 'simplyplacing on the record the [rulings] it had already made' " with respect to the People'sSandoval and Molineux applications, and defendant could not reasonablyhave contributed his views even if he had been present (see People v Guerrero, 27AD3d 386, 386 [2006]; People v Rivera, 201 AD2d 377, 377 [1994], lvdenied 83 NY2d 875 [1994]). We also note that the court thereafter, in defendant'spresence in open court, announced the essence of its rulings with respect to the People'sSandoval and Molineux applications. To the extent that defendantcontends that he was denied the right to be present at a pretrial Ventimigliahearing, we note that a defendant is not entitled to such a hearing (see People v Robinson, 28AD3d 1126, 1128 [2006], lv denied 7 NY3d 794 [2006]). We havereviewed the contentions raised in defendant's pro se supplemental brief and concludethat they are without merit. Present—Centra, J.P., Peradotto, Carni, Valentino andWhalen, JJ.