| People v Sewnarine |
| 2017 NY Slip Op 08632 [156 AD3d 459] |
| December 12, 2017 |
| Appellate Division, First Department |
| As corrected through Wednesday, January 24, 2018 |
[*1]
| The People of the State of New York,Respondent, v Devindra Sewnarine, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (William Kendall ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered December 5,2013, convicting defendant, after a jury trial, of grand larceny in the third degree, welfare fraud inthe third degree, and six counts of offering a false instrument for filing in the first degree, andsentencing him to an aggregate term of five years' probation, with $18,000 in restitution,unanimously affirmed.
Defendant's challenge to the court's purported restriction of counsel's voir dire of prospectivejurors is unpreserved (see People vBrown, 28 NY3d 392, 409 [2016]; People v Salley, 25 AD3d 473, 475 [1st Dept 2006], lvdenied 6 NY3d 838 [2006]), and we decline to review it in the interest of justice. As analternative holding, we find that after the court's own thorough examination, the court affordedall counsel a fair opportunity to question panelists about relevant matters (see e.g. People vJean, 75 NY2d 744, 745 [1989]). Although the court asked the parties to keep their inquiriesbrief, the court did not impose any particular time limit on questioning, and did not improperlycurtail any inquiries. Furthermore, defendant has not established any prejudice from anypurported restrictions, particularly in light of the court's initial detailed inquiry. By failing toobject, by making general objections, and by failing to seek further relief after objections weresustained, defendant failed to preserve any of his challenges to portions of the prosecutor'scross-examination of defendant and summation relating to an allegation that defendantcommitted mortgage fraud. We decline to review these claims in the interest of justice. As analternative holding, we find that any error, including the lack of CPL 240.43 notice of intendedimpeachment, was harmless in light of the court's curative actions, where applicable, and theoverwhelming evidence that defendant intentionally committed Medicaid fraud (see People vCrimmins, 36 NY2d 230 [1975]).
The court properly denied as untimely defendant's request for a missing witness charge as tothe enrollers who helped complete the Medicaid applications at issue. Defendant made thisrequest at the charge conference, after all of the evidence was presented, even though defendantknew in advance of trial of the role in the case of these enrollers, and knew from the first day oftrial that the People did not intend to call them (see e.g. People v Diaz, 150 AD3d 423 [1st Dept 2017], lvdenied 29 NY3d 1125 [2017]). The court also correctly concluded that the enrollers, whoworked for private health insurance companies and were not employed by the government, werenot under the People's control for purposes of a missing witness charge (see People v Broadhead, 36 AD3d423 [1st Dept 2007], lv denied 8 NY3d 919 [2007]; People v Vargar, 293AD2d 359, 359 [1st Dept 2002], lv denied 98 NY2d 682 [2002]). In any event, any errorin the denial of the instruction was harmless.
While answering the first jury note, the court also answered oral questions raised by the jury,in open court and without objection. Defense counsel had a full opportunity to suggest responsesto the oral questions (see People v O'Rama, 78 NY2d 270, 277-278 [1991]). A second[*2]note, which is at issue on appeal, was presented to the courtand merely memorialized the oral questions, as the court had requested. Although the secondnote was not addressed on the record, there was no mode of proceedings error exempt frompreservation requirements (see People vMack, 27 NY3d 534, 537 [2016]; People v Alcide, 21 NY3d 687, 692-693 [2013]), and we decline toreview defendant's unpreserved claim in the interest of justice. To the extent that the second notemay have left open the possibility that the court's responses to the oral questions did not fullyaddress the jury's concerns, counsel was present when the court advised the jury to put thequestions in a note and counsel did not object or request any further measures be taken.Concur—Tom, J.P., Renwick, Gische, Oing and Singh, JJ.