| People v Lucas |
| 2015 NY Slip Op 06959 [131 AD3d 875] |
| September 29, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Sahim Lucas, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered May 14,2012, as amended June 5, 2012, and June 26, 2012, convicting defendant, after a jurytrial, of sex trafficking and promoting prostitution in the second degree, and sentencinghim, as a second felony offender, to concurrent terms of 12
The removal, as a security measure, of the pro se defendant's pen during a portion ofthe trial does not provide any basis for reversal. Defendant represented himself at trialwith the assistance of a legal advisor. During the prosecutor's summation, a court officerdirected the legal advisor to confiscate defendant's pen, based on indications thatdefendant had become "agitated." After the summation and a recess, defendant and hisadvisor objected in general terms to the removal of the pen, which was apparently notreturned to defendant throughout the remainder of the trial, except briefly to sign theverdict sheet. Although defendant called the jurors' attention to the confiscation of thepen, the present record does not establish that they were aware of it before he did so.
Defendant failed to preserve any of his challenges to the removal of his pen,including that he was deprived of his right to represent himself, that the court improperlydelegated a judicial function to the court officer, that he was deprived of his right to afair trial since the confiscation improperly conveyed to the jury that he was violent anddangerous, and that the court should have given a curative instruction (see People v McLean, 15NY3d 117, 121 [2010]). We decline to review these arguments in the interest ofjustice. As an alternative holding, we reject them on the merits, and further find that anyerror was harmless (see People v Crimmins, 36 NY2d 230, 242 [1975]), in lightof the minimal prejudice, if any, resulting from the confiscation of defendant's pen at thelate stage of trial, given that the court permitted defendant to dictate any notes to his legaladvisor (see People v Hendy, 159 AD2d 250 [1st Dept 1990], lv denied76 NY2d 736 [1990], lv denied upon reconsideration 76 NY2d 893 [1990]), aswell as the overwhelming evidence of guilt. We have considered and rejected defendant'sassertion that harmless error analysis is inapplicable (see People v Clyde, 18 NY3d 145, 153 [2011], certdenied 566 US &mdash, 132 S Ct 1921 [2012]). Concur—Friedman, J.P.,Andrias, Saxe, Gische and Kapnick, JJ.
Motion to hold appeal in abeyance denied.