PEOPLE v. HALE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Terrell HALE, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  WISNER, J. P., HURLBUTT, SCUDDER, KEHOE and BURNS, JJ. Timothy P. Murphy, for defendant-appellant. Joseph Kilbridge, for plaintiff-respondent.

Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[2] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03[2] ).   Defendant contends that reversal is required because the People failed to provide him with Brady material.   Assuming, arguendo, that the information at issue constitutes Brady material, we conclude that “there is [no] reasonable probability that[,] had it been disclosed to the defense, the result would have been different” (People v. Bryce, 88 N.Y.2d 124, 128, 643 N.Y.S.2d 516, 666 N.E.2d 221).   We reject defendant's contention that the information at issue also constitutes Rosario material (see, CPL 240.45).

Although we agree with defendant that the People should have served a CPL 710.30 notice with respect to an oral statement made by defendant, the failure to do so constitutes harmless error (see, People v. Reinard, 244 A.D.2d 936, 936-937, 665 N.Y.S.2d 989, lv. denied 91 N.Y.2d 896, 669 N.Y.S.2d 10, 691 N.E.2d 1036).   The contention of defendant that he was denied a fair trial by prosecutorial misconduct is not preserved for our review (see, CPL 470.05 [2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that it is legally sufficient to establish beyond a reasonable doubt that defendant committed the crimes of assault in the second degree and criminal possession of a weapon in the second degree (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant further contends that he was denied his right to be present at a material stage of the trial, based upon his absence from an in-chambers conference concerning the admissibility of certain testimony.   Contrary to defendant's contention, the court clerk's notes indicate that defendant was present during that conference (cf., People v. Mitchell, 191 A.D.2d 460, 594 N.Y.S.2d 290).   In addition, defendant contends that Supreme Court erred in delegating its authority to instruct the jury to begin deliberating and that he was denied his right to be present at a material stage of the trial based upon his absence when the jury was so instructed.   We disagree. The delegation of that ministerial duty “did not constitute an improper delegation of judicial authority, nor did it abridge defendant's right to be present during a critical stage of the trial” (People v. Henderson, 244 A.D.2d 889, 890, 665 N.Y.S.2d 145, lv. denied 91 N.Y.2d 926, 670 N.Y.S.2d 407, 693 N.E.2d 754;  see, CPL 310.10 [former (1) ];  People v. Lester, 174 A.D.2d 507, 508, 571 N.Y.S.2d 284, lv. denied 78 N.Y.2d 1012, 575 N.Y.S.2d 820, 581 N.E.2d 1066).   Finally, the court did not abuse its discretion in denying defendant's request for youthful offender status (see, People v. Brantley, 280 A.D.2d 980, 720 N.Y.S.2d 420).

Judgment unanimously affirmed.

MEMORANDUM: