The People, etc., respondent, v. Moises Valerio, appellant. (2010)

Argued-January 14, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered May 24, 2007, convicting him of murder in the second degree, attempted murder in the second degree (two counts), assault in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

“The defendant's contention that various comments made by the prosecutor during [her] summation were improper and deprived him of a fair trial is unpreserved for appellate review, as the defendant either did not object to the remarks at issue or made only general objections, or his objections were sustained without any further request for curative instructions and he failed to move [timely] for a mistrial” (People v. Boyce, 54 AD3d 1052, 1053;  see CPL 470.05[2];  People v. Philbert, 60 AD3d 698;  People v. Dashosh, 59 AD3d 731).   In any event, most of the challenged remarks constituted fair comment on the evidence or were responsive to defense counsel's summation (see People v. Forest, 52 AD3d 733;  People v. Holguin, 284 A.D.2d 343).   Although some of the remarks were improper, they were not so egregious as to deprive the defendant of a fair trial (see People v. Philbert, 60 AD3d at 698).   Moreover, the court instructed the jurors that they were the finders of fact, that the arguments of counsel were not evidence, and that they were to assess the witnesses' credibility.

The defendant's contention that the Supreme Court improperly failed to charge the jury regarding the weakness of evidence of flight is unpreserved for appellate review because the defendant neither requested such a charge nor objected to the court's failure to so charge (see CPL 470.05[2];  Up-Front Indus. v. U.S. Indus., 63 N.Y.2d 1004;  People v. Burks, 272 A.D.2d 476, 477;  People v. Hinckson, 266 A.D.2d 404, 405;  People v. Elias, 226 A.D.2d 474, 474;  People v. John, 221 A.D.2d 564, 565;  People v. Baez, 208 A.D.2d 551;  People v. Yaghnam, 135 A.D.2d 763, 764).   In any event, under the instant facts, such a charge was not warranted since the People “never argued that [the defendant's] flight evinced a consciousness of guilt” (People v. Rodriguez, 135 A.D.2d 586, 588;  see People v. Delacruz, 289 A.D.2d 254, 255;  People v. John, 221 A.D.2d at 565;  People v. Hilton, 210 A.D.2d 180, 180;  People v. Brown, 190 A.D.2d 510;  People v. Rosa, 176 A.D.2d 187, 188).

Under the facts of this case, in which defense counsel had discussed with the defendant his right to be present and the defendant was aware of that right, the waiver of the defendant's right to be present at a pretrial Rodriguez hearing (People v. Rodriguez, 135 A.D.2d 586, 588) was valid (see People v. Perine, 3 AD3d 586, 587;  People v. Lebron, 293 A.D.2d 689, 690;  People v. Underwood, 201 A.D.2d 597, 597-598).   This is especially so where, although physically absent from the hearing, the defendant heard what transpired.   In addition, the defendant was not deprived of his right to be present at all material stages of his trial (see generally People v. Antommarchi, 80 N.Y.2d 247) by his absence from the jury's viewing of exhibits already admitted into evidence.   At most, this constituted an ancillary proceeding (see People v. Monroe, 90 N.Y.2d 982, 984).   Since the defendant's presence at the viewings could not have had “a substantial effect on [his] ability to defend against the charges” (People v. Sloan, 79 N.Y.2d 386, 392), his presence was not required (see People v. Orr, 267 A.D.2d 177).

The defendant's remaining contention is without merit.

DILLON, J.P., FLORIO, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court