THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BENNY WALKER DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of three counts of sexual abuse in the second degree (Penal Law § 130.60[2] ).   Defendant contends that Supreme Court committed reversible error when, at the start of the second day of jury selection, it questioned and then discharged a sworn juror in the absence of defendant and defense counsel.   Although defendant did not object to the procedure employed by the court, we agree with defendant that preservation of his contention is not required where, as here, the court committed a mode of proceedings error (see generally People v. Patterson, 39 N.Y.2d 288, 295, affd 432 U.S. 197).   The court's in camera questioning and discharge of the sworn juror deprived defendant of, inter alia, his “constitutional right to counsel at trial” (People v. Johnson, 189 A.D.2d 318, 320;  see People v. McLean, 15 NY3d 117, 120–121;  People v. Ahmed, 66 N.Y.2d 307, 310, rearg. denied 67 N.Y.2d 647;  People v. Kinchen, 60 N.Y.2d 772, 773).   Nevertheless, “[w]aiver and preservation are separate concepts” (Ahmed, 66 N.Y.2d at 311;  see People v. Webb, 78 N.Y.2d 335, 339–340;  People v. Moore, 233 A.D.2d 670, 671–672, lv denied 89 N.Y.2d 987), and we agree with the People that, by consenting to the procedure employed by the court, defendant waived his right to appellate review of the court's allegedly improper discharge of the sworn juror (see People v. Barner, 30 AD3d 1091, 1092, lv denied 7 NY3d 809;  cf.   People v. Noguel, 93 AD3d 1319, 1320;  see also People v. Davis, 83 AD3d 860, 861;  People v. Pennisi, 217 A.D.2d 562, 563, lv denied 86 N.Y.2d 800;  see generally People v. Colon, 90 N.Y.2d 824, 825–826).

Defendant's further contention that the court erred in permitting a police impact investigator to use the word “victim” during his testimony concerning his interview of the complainant lacks merit.   He did not testify to the contents of his interview with the complainant, nor did he give an opinion relating to the complainant's credibility or defendant's guilt, and thus he did not thereby bolster the complainant's testimony (see generally People v. Buie, 86 N.Y.2d 501, 509–510), or otherwise usurp the jury's role as factfinder (see generally People v. Hartzog, 15 AD3d 866, 867, lv denied 4 NY3d 831).   In any event, the court instructed the jury both during the investigator's testimony and its charge that the jurors were the ultimate finders of fact and resolvers of credibility, and the jury is presumed to have followed the court's instructions (see generally People v. Moore, 71 N.Y.2d 684, 688;  People v. Thagard, 28 AD3d 1097, 1098, lv denied 7 NY3d 795).   Even assuming, arguendo, that the court erred in admitting the investigator's testimony, however, we conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242).

Frances E. Cafarell

Clerk of the Court