PEOPLE v. SMITH (1997)

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered August 11, 1994, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and sentencing him to concurrent terms of 8 1/3 to 25 years, unanimously affirmed.

The court properly permitted the court clerk, with the consent of the parties, to ask the jury to submit a note indicating whether or not they still wished a response to their inquiry sent immediately prior to a note indicating that they had reached a verdict, since the clerk's action was purely ministerial (see, People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027).   In this connection, defendant's right to be present at a material stage of his trial was not implicated because no substantive information about the case or legal instruction was involved (People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660).   There is no merit to defendant's current suggestion that the court should have given further instruction, sua sponte.   Defendant's claim that the jury's note evidenced improper deliberation is based entirely on speculation.   We note that defendant was properly cross-examined about aspects of his background affecting his credibility.

The existing record (see, People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486) indicates that defendant received effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We perceive no abuse of discretion in sentencing.

MEMORANDUM DECISION.