The People, etc., respondent, v. Cedric Miller, appellant. (2011)

Argued-March 3, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered April 14, 2009, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

As correctly conceded by the People, the trial court erred in failing to grant the defendant's request to instruct the jury that an eyewitness is not obligated to come forward to law enforcement officials upon learning of the defendant's arrest (see People v. Dawson, 50 N.Y.2d 311;  People v. Bryan, 55 AD3d 921;  People v. Paasewe, 276 A.D.2d 807;  People v. Casseus, 199 A.D.2d 525;  People v. Allen, 177 A.D.2d 700;  People v. Reed, 83 A.D.2d 645).   However, under the circumstances, the error was harmless (see People v. Crimmins, 36 N.Y.2d 230;  People v. Archie, 200 A.D.2d 676;  People v. Davis, 172 A.D.2d 553).

The defendant was not deprived of his right to a public trial (see US Const, 6th Amend;  Civil Rights Law § 12;  Judiciary Law § 4;  People v. Jones, 96 N.Y.2d 213).   Although the defendant initially objected to the exclusion of his girlfriend during an undercover officer's testimony, defense counsel subsequently withdrew this objection in the defendant's presence.   Accordingly, the defendant waived his right to have his girlfriend present during this portion of the trial (see People v. Moody, 300 A.D.2d 510;  People v. Roque, 291 A.D.2d 417).

The defendant was afforded meaningful representation (see People v. Caban, 5 NY3d 143, 152;  People v. Benevento, 91 N.Y.2d 708;  People v. Rand, 58 AD3d 758).

DILLON, J.P., LEVENTHAL, CHAMBERS and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court