| People v Terrell |
| 2017 NY Slip Op 03200 [149 AD3d 1108] |
| April 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terrance Terrell, Appellant. |
Laurette D. Mulry, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.),rendered March 2, 2007, convicting him of robbery in the first degree (two counts) and criminalsexual act in the first degree, upon a jury verdict, and sentencing him to concurrent determinateterms of imprisonment of 18 years, plus 5 years' postrelease supervision, upon each of hisconvictions of robbery in the first degree, and a determinate term of imprisonment of 20 years,plus 5 years' postrelease supervision, upon his conviction of criminal sexual act in the firstdegree, to run consecutively to the sentences imposed on the convictions of robbery in the firstdegree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byproviding that all of the sentences imposed shall run concurrently with each other; as somodified, the judgment is affirmed.
During jury selection, the defendant raised Batson challenges (see Batson vKentucky, 476 US 79 [1986]) to the People's peremptory strikes of three prospective jurors,all of whom were women of color. With respect to the defendant's first Batson challenge,the defendant did not object to the prosecution's race-neutral explanation and, therefore, thatclaim is not preserved for appellate review (see People v James, 99 NY2d 264, 272[2002]; People v Rubin, 143 AD3d846, 846 [2016]). In any event, viewing the totality of all relevant facts and circumstances,the record demonstrates that the prosecution's race-neutral explanations as to all three Batsonchallenges were not pretextual (seePeople v Hecker, 15 NY3d 625, 663-664 [2010]).
Contrary to the defendant's contention, his right to be present at all material stages of the trialwas not violated by his absence from an in camera interview with a sworn juror, conducted in thepresence of the prosecutor and defense counsel, to determine whether there was possible jurordisqualification (see CPL 270.35). Although a defendant has a statutory right to bepresent at all material stages of the trial (see CPL 260.20), this right is only a qualifiedright where the proceedings involved are ancillary (see People v Velasquez, 1 NY3d 44, 47 [2003]; People vSloan, 79 NY2d 386, 392 [1992]). A conference to determine whether a sworn juror shouldbe excluded (see CPL 270.35) is an ancillary proceeding (see People v Harris, 99NY2d 202, 212 [2002]). As such, the defendant's presence is required only if it could have had "asubstantial effect on [his or her] ability to defend against the charges" (People v Sloan, 79NY2d at 392), or "where defendant has something [*2]valuable tocontribute" (People v Morales, 80 NY2d 450, 456 [1992]). Given that the issue ofwhether a seated juror is grossly unqualified is, generally, a legal determination (see People vHarris, 99 NY2d at 212; People v Morales, 80 NY2d at 457; People v Oakes, 57 AD3d 1425,1426 [2008]), and, given the circumstances presented here, there is no basis to conclude that thedefendant's presence at the in camera interview would have had a substantial effect on thedefendant's ability to defend the charges, or that the defendant could have made a valuablecontribution. Accordingly, the defendant's right to be present at all material stages of the trial wasnot violated.
Next, the defendant contends that the County Court erred in failing to conduct an in camerainquiry of each juror to determine his or her ability to continue to serve impartially after jurorswere overheard discussing the case during recesses and breaks (see CPL 270.25 [1];People v Buford, 69 NY2d 290, 299 [1987]). However, a request for such inquiries wasnever made at trial and, thus, this contention is unpreserved for appellate review (see CPL470.05 [2]; People v Hicks, 6 NY3d737, 739 [2005]; People vRivera, 124 AD3d 917, 918 [2015]; People v Watson, 84 AD3d 1126, 1127 [2011], affd 20NY3d 1018 [2013]). In any event, the court properly ascertained that the overheard commentswere innocuous and that the comments did not indicate that any of the jurors possessed a state ofmind that would prevent the juror from rendering an impartial verdict (see People v Mejias, 21 NY3d 73,79 [2013]; People v Lantigua, 86AD3d 429, 430 [2011], affd sub nom. People v Mejias, 21 NY3d 73 [2013]; People v Morales, 36 AD3d 631,632 [2007]; People v Echevarria, 30AD3d 537, 537 [2006]; People v Matiash, 197 AD2d 794 [1993]). Accordingly,there was no need to conduct an inquiry of each juror in accordance with CPL 270.35. Defensecounsel's representation was not rendered ineffective based on counsel's failure to request suchinquiries (see People v Watson, 84 AD3d at 1127).
The sentence imposed was excessive to the extent indicated herein (see People vDelgado, 80 NY2d 780, 783 [1992]; People v Kordish, 140 AD3d 981, 982 [2016]). Leventhal, J.P.,Cohen, Maltese and Barros, JJ., concur.