People v. Joseph

168 A.D.3d 877

91 N.Y.S.3d 240

The PEOPLE, etc., Respondent,

v.Gyasi JOSEPH, Appellant.

2015–00523

Ind. No. 8290/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 1, 2018

January 16, 2019

Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Katheryne M. Martone of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Howard B. Goodman of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erroneously denied his Batson challenges (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) with respect to the prosecutor's use of peremptory challenges to exclude men from the jury is without merit. When challenged, the prosecutor provided gender-neutral explanations for using a peremptory challenge to exclude each of the prospective jurors at issue (see People v. Smocum, 99 N.Y.2d 418, 423, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Waters, 81 A.D.3d 673, 673, 916 N.Y.S.2d 791 ). A trial court's ultimate determination as to whether a proffered nondiscriminatory reason was pretextual is accorded great deference on appeal (see People v. Hecker, 15 N.Y.3d 625, 656, 917 N.Y.S.2d 39, 942 N.E.2d 248 ). Since the record supports the court's determination that the prosecutor's explanations were not pretextual, the court's determination on this issue will not be disturbed on appeal (see People v. Jamoona, 151 A.D.3d 748, 750, 57 N.Y.S.3d 65 ; People v. Ceruti, 142 A.D.3d 558, 558–559, 38 N.Y.S.3d 909 ; People v. Waters, 81 A.D.3d at 673–674, 916 N.Y.S.2d 791 ).

The defendant contends that he was deprived of the right to counsel and his right to be present during court proceedings when a court officer informed the Supreme Court, in the absence of the defendant and his counsel, about an incident during which the court officer spoke to one of the jurors about the presence of the defendant and his codefendant in the courthouse lobby.

"A criminal defendant has the absolute right to be present at all material stages of trial" ( People v. Dini, 292 A.D.2d 631, 632, 741 N.Y.S.2d 59 ; see CPL 260.20 ). Moreover, a defendant has "a constitutional right to counsel at every critical stage of the proceedings, meaning those stages that hold ‘significant consequences for the accused’ " ( People v. Smith, 30 N.Y.3d 626, 629, 69 N.Y.S.3d 566, 92 N.E.3d 789, quoting Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 ).

The defendant's contention is without merit (see People v. Singletary, 66 A.D.3d 564, 565–566, 887 N.Y.S.2d 86 ). The absence of the defendant and his counsel during the brief communication between the court officer and the juror, and during the subsequent communication between the Supreme Court and the court officer, did not deprive the defendant of his right to be present at a material stage of the proceedings (see People v. Tullock, 148 A.D.3d 1061, 1062, 50 N.Y.S.3d 135 ), or deprive him of his right to counsel at a critical stage of the proceedings. The interaction between the court officer and the juror in the courthouse lobby took place during a recess and was not part of the proceedings, let alone a material part. The reporting of the incident by the court officer to the court was not a material part of the proceedings. In any event, the court advised counsel of the incident and, in the presence of counsel, the court conducted an inquiry of all of the jurors with respect to this incident, provided defense counsel an opportunity to question the juror who spoke with the court officer, discharged that juror at the defendant's request, was assured by the...