PEOPLE v. TOLLIVER

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Eric TOLLIVER, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., WISNER, HURLBUTT and BALIO, JJ. Steven A. Paquette, for Defendant-Appellant. Victoria M. Anthony, Syracuse, for Plaintiff-Respondent.

 This Court granted defendant's motion for a writ of error coram nobis (People v. Tolliver, 242 A.D.2d 975, 670 N.Y.S.2d 374), and defendant now appeals de novo from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03[2] ).   There is no merit to his contention that he was denied his statutory right to be present at sidebar conferences conducted during jury selection (see, People v. Dockery, 253 A.D.2d 889, 678 N.Y.S.2d 333, lv. denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451).   The right of defendant to be present was not affected where prospective jurors were questioned in his presence and thereafter dismissed pursuant to the prosecutor's exercise of peremptory challenges or County Court's discharge of a prospective juror for cause (see, People v. Roman, 88 N.Y.2d 18, 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050, rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229).   Further, defendant was not denied his right to be present where prospective jurors were questioned in his presence and defense counsel thereafter exercised peremptory challenges during sidebar discussions with the prosecutor (see, People v. Rodriguez [Joseph], 261 A.D.2d 908, 690 N.Y.S.2d 808, lv. denied 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946;  see also, People v. Lugo, 234 A.D.2d 124, 125, 651 N.Y.S.2d 453, lv. denied 89 N.Y.2d 987, 656 N.Y.S.2d 745, 678 N.E.2d 1361).

 We reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation.   Although the prosecutor improperly made a “safe streets” comment by urging the jury to do justice for the safety of the neighborhood where the crime was committed (see, People v. Payne, 187 A.D.2d 245, 250, 593 N.Y.S.2d 675), that isolated comment was not so egregious as to deprive defendant of a fair trial (see, People v. Plant, 138 A.D.2d 968, 526 N.Y.S.2d 300, lv. denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59).   The remaining comments challenged by defendant were fair comment on the evidence or fair response to the comments of defense counsel and did not constitute misconduct (see, People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281).

The verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant was not denied effective assistance of counsel at trial.   Trial counsel's representation, viewed in its totality, was meaningful (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: