PEOPLE v. DIAZ (2000)

Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered April 2, 1996, convicting defendant, after a jury trial, of murder in the second degree and conspiracy in the second degree, and sentencing him to consecutive terms of 25 years to life and 8-1/3 to 25 years, unanimously affirmed.

This matter was remanded to the trial court by our order entered June 29, 1999 (262 A.D.2d 255, 690 N.Y.S.2d 454) for a reconstruction hearing on the issue of whether four prospective jurors were excused for cause notwithstanding the notation that they were excused on consent.   The trial court conducted the hearing on October 22, 1999, at which prior defense counsel and the trial Assistant District Attorney testified.   The court, relying also on its own documentation and recall, found that the jurors were clearly excused for cause, but that out of deference to those jurors' possible sensitivities, the court had read out, and the clerk recorded, that they were excused on consent rather than for cause (see, e.g., People v. Robinson, 249 A.D.2d 115, 672 N.Y.S.2d 20 lv. denied 92 N.Y.2d 859, 677 N.Y.S.2d 90, 699 N.E.2d 450;  People v. Childs, 247 A.D.2d 319, 670 N.Y.S.2d 4, lv. denied 92 N.Y.2d 849, 677 N.Y.S.2d 79, 699 N.E.2d 439).   The transcript of the reconstruction hearing supports that finding, especially insofar as those potential jurors either were, or were related to, law enforcement personnel.   Nor do we find any basis to disturb the court's findings.   As we have recently noted, such excusals are “in the nature of an uncontested excusal for cause, and thus defendant could not have made a meaningful contribution” to any of the sidebar discussions with the jurors (People v. Garcia, 265 A.D.2d 171, 697 N.Y.S.2d 8).   As such, defendant's Antommarchi claim is meritless.   The challenge to the corroboration charge is unpreserved (People v. James, 75 N.Y.2d 874, 554 N.Y.S.2d 465, 553 N.E.2d 1013).   In any event, that, and the remaining claims, also are meritless.

MEMORANDUM DECISION.