PEOPLE v. BRYAN (2007)

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered July 31, 2006, upon a verdict convicting defendant of the crimes of manslaughter in the second degree and driving while intoxicated (two counts).

Defendant stands convicted of manslaughter in the second degree and two counts of driving while intoxicated following a jury trial.   Evidence at trial established that defendant, after a night of drinking, was driving his friend's car at a high rate of speed when the vehicle left the road and struck a tree, killing that friend, a passenger in the car.   Sentenced to an aggregate prison term of 5 to 15 years, defendant now appeals.   We affirm.

Defendant argues that his right to be present at all material stages of the trial was violated during a conference in County Court's chambers immediately following his arraignment.   During this conference, Judge Buckley disclosed to defense counsel and the District Attorney that he had a past acquaintanceship with decedent's family through a local youth sports league over a decade earlier and that decedent's father, presumably drawing on this past relationship and knowledge that he was a lawyer, had telephoned him at home on the morning of the accident.   According to Judge Buckley, he promptly explained his current status as a judge to decedent's father and the call terminated without any substantive issues having been discussed between them.

 We are unpersuaded that this conference “involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing [his] or countering the People's position” (People v. Dokes, 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836 [1992] ).   In other words, his absence at this conference “[did not] have a substantial effect on his ability to defend [himself]” (People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070 [1991] ).   This being the case, defendant has failed to establish that he was denied the right to be present at a material stage of the proceeding (see id.;  People v. Jones, 249 A.D.2d 916, 671 N.Y.S.2d 380 [1998], lv. denied 92 N.Y.2d 926, 680 N.Y.S.2d 468, 703 N.E.2d 280 [1998];  People v. Spataro, 202 A.D.2d 1005, 612 N.Y.S.2d 699 [1994], lv. denied 84 N.Y.2d 833, 617 N.Y.S.2d 153, 641 N.E.2d 174 [1994] ).

 Nor are we persuaded by defendant's pro se argument that County Court should have recused itself because of this familiarity with decedent's family.   First, the argument is unpreserved for review since defense counsel never sought recusal as a result of the disclosures made during the conference (see CPL 470.05[2];  People v. Bigwarfe, 35 A.D.3d 904, 825 N.Y.S.2d 813 [2006], lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007];  People v. Rizzo, 5 A.D.3d 924, 925, 774 N.Y.S.2d 98 [2004], lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 418, 816 N.E.2d 208 [2004] ).   In any event, none of the information imparted by the court revealed any basis for recusal (see People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987];  People v. Roberts, 6 A.D.3d 942, 775 N.Y.S.2d 424 [2004], lv. denied 3 N.Y.3d 662, 782 N.Y.S.2d 704, 816 N.E.2d 577 [2004] ).

 Defendant's contention that County Court erred in refusing to charge justification as a defense-on the theory that he was being chased by another vehicle at the time of the accident (compare People v. Maher, 79 N.Y.2d 978, 584 N.Y.S.2d 421, 594 N.E.2d 915 [1992] )-is also without merit since there was no reasonable view of the evidence, even when viewed in a light most favorable to him (see People v. Padgett, 60 N.Y.2d 142, 144, 468 N.Y.S.2d 854, 456 N.E.2d 795 [1983] ), to support such charge.   No proof was offered to suggest that either defendant or decedent was involved in any type of incident or altercation which might have escalated into a car chase.   To the contrary, testimony established that nothing out of the ordinary took place as the twosome, along with a few others, left a local bar shortly before the crash.   Moreover, eyewitness testimony concerning the moments leading up to the crash, as well as the crash itself, established without contradiction that no other vehicle was involved.

 Defendant next argues that the People improperly usurped County Court's role during summation by giving legal instructions, particularly through the use of a slide presentation.   Upon our review of the People's summation, we find that it contains an accurate recitation of the applicable law (see People v. Nash, 273 A.D.2d 696, 710 N.Y.S.2d 157 [2000] ) and are unpersuaded that the People otherwise improperly usurped the court's function.   With respect to the People's use of a slide presentation, this Court has not been provided with the slides shown to the jury.   County Court, however, detailed the content of each slide on the record.   In so doing, the court specifically noted that certain slides contained a verbatim recitation of charged and lesser included offenses.   No argument is now being raised that County Court erred in its assessment of the content of any slide or that the slide presentation differed from the otherwise proper oral summation.   As a final matter, we note that County Court properly instructed the jury that it was to follow the law as charged by it.   Thus, even if a misstatement of law was made during the People's summation, the court's instructions were sufficient to ensure a fair trial (see People v. Barnes, 80 N.Y.2d 867, 868, 587 N.Y.S.2d 597, 600 N.E.2d 228 [1992];  People v. Robinson, 16 A.D.3d 768, 770, 790 N.Y.S.2d 586 [2005], lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ).

Finally, issues pertaining to the People's cross-examination of defendant, alleged prejudicial remarks during the People's summation and the jury's viewing of the mangled car are unpreserved for this Court's review (see CPL 470.05[2] ).   All other issues have been considered and rejected as being without merit, particularly the arguments that the Public Defender initially assigned to represent defendant was ineffective and that County Court abused its discretion in denying a motion for an adjournment, made on the eve of trial, by defendant's newly-retained attorney.

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CARDONA, P.J., MERCURE, CREW III and LAHTINEN, JJ., concur.