PEOPLE v. HERRMANN

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

The PEOPLE of the State of New York, Respondent, v. Rodney HERRMANN, Defendant-Appellant.

Decided: February 13, 2001

NARDELLI, J.P., WILLIAMS, ELLERIN, WALLACH and FRIEDMAN, JJ. Erica M. Fitzgerald, for Respondent. Robin Nichinsky, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered June 11, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of 2 to 6 years, unanimously affirmed.

Defendant's claim that his right to be present at trial was violated is unreviewable because the record does not establish defendant's exclusion from the proceeding at issue.   In any event, defendant was not entitled to be present at the colloquy with a deliberating juror at which no substantive instructions were delivered.   When, during deliberations, a juror asked to speak to the court about a “personal matter”, but in fact began discussing, without particularization, the jury's inability to reach a verdict, the court instructed this juror that such a communication must be in writing.   Significantly, both counsel were also present and no objection was raised.   This routine instruction did not require defendant's presence (People v. Dixon, 192 A.D.2d 338, 596 N.Y.S.2d 18, lv. denied, 81 N.Y.2d 1013, 600 N.Y.S.2d 201, 616 N.E.2d 858;  see also, People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027).   The record fails to support defendant's assertion that the court conveyed additional information to the juror by implication.   Similarly, there was no violation of the statutory procedures for responding to jury communications (CPL 310.30).   We have considered and rejected defendant's remaining arguments.