PEOPLE v. LEE (2008)

On appeal from a judgment convicting him upon a jury verdict of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2][b] ), defendant contends that Supreme Court erred in denying his Batson challenge to the prosecutor's use of a peremptory challenge with respect to an African-American prospective juror.   We reject that contention inasmuch as defendant failed to establish a prima facie case of discrimination (see People v. Jones, 11 N.Y.3d 822, ---N.Y.S.2d ----, --- N.E.2d ----, 2008 WL 4700869 [Oct. 28, 2008];  People v. Brown, 17 A.D.3d 283, 284, 793 N.Y.S.2d 425, lv. denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156;  cf. People v. Rosado, 45 A.D.3d 508, 846 N.Y.S.2d 165).

 The further contention of defendant that the testimony of his accomplices was not corroborated by independent evidence is not preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Waldriff, 46 A.D.3d 1448, 847 N.Y.S.2d 795, lv. denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212).   In any event, that contention is without merit because the People presented evidence that “connect [ed] the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice[s] [were] telling the truth” (People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 339 N.E.2d 139;  see CPL 60.22[1];  People v. Bass, 255 A.D.2d 689, 691, 681 N.Y.S.2d 101, lv. denied 93 N.Y.2d 966, 695 N.Y.S.2d 52, 716 N.E.2d 1097).   Defendant's further contention concerning the legal sufficiency of the evidence before the grand jury “is not reviewable on an appeal from an ensuing judgment based upon legally sufficient trial evidence” (People v. Paulick, 206 A.D.2d 895, 896, 615 N.Y.S.2d 159;  see CPL 210.30[6];  People v. Horton, 216 A.D.2d 913, 629 N.Y.S.2d 141, lv. denied 87 N.Y.2d 902, 641 N.Y.S.2d 232, 663 N.E.2d 1262).

 We reject the contention of defendant that he was denied his right to be present at a material stage of the trial, i.e., two bench conferences held outside his presence, and thus that he is entitled to a reconstruction hearing to determine what was discussed at those bench conferences.   Although “a defendant has a fundamental right to be present during any material stage of the trial” (People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393), reversal is not required where defendant's exclusion was from bench conferences at which only questions of law or procedure were discussed (see People v. Fabricio, 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863;  People v. Afrika, 13 A.D.3d 1218, 1222, 787 N.Y.S.2d 774, lv. denied 4 N.Y.3d 827, 796 N.Y.S.2d 582, 829 N.E.2d 675;  see also People v. Robinson, 28 A.D.3d 1126, 1128, 814 N.Y.S.2d 418, lv. denied 7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288).   Here, the court ensured that defendant was present during conferences concerning evidence and trial testimony, and there is nothing in the record to support the contention of defendant that the two bench conferences that he did not attend involved questions other than those of law or procedure.

 Defendant further contends that the court erred in denying his request to charge Penal Law § 20.10, pursuant to which an individual is not liable as an accomplice to a crime “when his [or her] own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto.”   We reject that contention inasmuch as there is no evidence to support a finding that defendant's conduct was necessarily incidental to the robbery (cf. People v. Gray, 284 A.D.2d 1012, 726 N.Y.S.2d 529, lv. denied 97 N.Y.2d 682, 738 N.Y.S.2d 297, 764 N.E.2d 401;  see generally People v. Manini, 79 N.Y.2d 561, 569-571, 584 N.Y.S.2d 282, 594 N.E.2d 563).   We further conclude that the court properly allowed the courtroom deputies to testify concerning defendant's allegedly threatening hand gestures toward witnesses during the trial.   Evidence of threats made by defendant to witnesses may be “probative of defendant's consciousness of guilt” and thus may be admissible on that ground (People v. Sherk, 217 A.D.2d 958, 958, 630 N.Y.S.2d 436;  see People v. Luper, 201 A.D.2d 867, 607 N.Y.S.2d 788, lv. denied 83 N.Y.2d 912, 614 N.Y.S.2d 394, 637 N.E.2d 285).   In any event, any prejudice resulting from that testimony “was ameliorated because defendant had an opportunity to cross-examine the witness[es] fully with regard to the incident[s]” (Sherk, 217 A.D.2d at 958, 630 N.Y.S.2d 436), and the court instructed the jury on the “slight value” of that testimony with respect to defendant's consciousness of guilt (People v. Spruill, 299 A.D.2d 374, 375, 750 N.Y.S.2d 312).

Finally, we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and that the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: