PEOPLE v. TAYLOR

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

The PEOPLE of the State of New York, Respondent, v. Phillip TAYLOR, Defendant-Appellant.

Decided: May 23, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, MARLOW, MALONE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Phillip A. Taylor, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Nhu P. Nguyen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered November 18, 2002, convicting defendant, after a jury trial, of attempted robbery in the first and second degrees and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 7 years, unanimously affirmed.

 Since defendant never objected, on constitutional grounds, to the admission of a nontestifying codefendant's plea allocution (see People v. Kello, 96 N.Y.2d 740, 743-744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001];  People v. Maher, 89 N.Y.2d 456, 462-463, 654 N.Y.S.2d 1004, 677 N.E.2d 728 [1997];  compare People v. Hardy, 4 N.Y.3d 192, 197 n. 3, 791 N.Y.S.2d 513, 824 N.E.2d 953 [2005] ), and since, in any event, he withdrew his objection completely, his Confrontation Clause claim is unpreserved and we decline to review it in the interest of justice.  “Although defendant's trial occurred before the decision of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004], that circumstance does not affect defendant's obligation to make a proper constitutional claim, as opposed to a claim grounded in state evidentiary law” (People v. Lopez, 25 A.D.3d 385, 386, 808 N.Y.S.2d 648 [2006] ).   Were we to review this claim, we would conclude that, as the People concede, the plea allocution was inadmissible under Crawford.   However, we would find such error to be harmless, even under the standard for constitutional error (see e.g. People v. Douglas, 4 N.Y.3d 777, 793 N.Y.S.2d 825, 826 N.E.2d 796 [2005];  People v. Saenz, 27 A.D.3d 379, 811 N.Y.S.2d 395 [2006] ), because the other evidence supporting the jury's guilty verdict is strong and, as the court instructed the jury, the plea allocution was only received for its bearing on whether defendant acted in concert with another person.

 When the court adjourned the case outside defendant's presence because defense counsel was ill, and gave the jurors the standard instructions not to visit the scene, discuss the case with anyone, or read media reports, this did not violate defendant's right to be present at all material stages of the trial.   There was no prejudice to defendant's ability to defend, because the court was performing a ministerial function that was wholly unrelated to the substantive legal or factual issues of the trial (People v. Deacon, 183 A.D.2d 843, 844-845, 584 N.Y.S.2d 583 [1992], lv. denied 80 N.Y.2d 974, 591 N.Y.S.2d 143, 605 N.E.2d 879 [1992] ).

We have considered and rejected the claims contained in defendant's pro se supplemental brief.