Opinion
2014-03-5
The PEOPLE, etc., respondent, v. Alfred FIELDS, appellant.
Steven Banks, New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Steven Banks, New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered May 3, 2011, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that various questions and remarks made by the prosecutor during voir dire, opening statement, and summation were improper and deprived him of a fair trial. The challenged comments and questions during voir dire either were not improper ( seeCPL 270.15[1][c]; People v. Dashosh, 59 A.D.3d 731, 731, 873 N.Y.S.2d 730;see generally People v. Jean, 75 N.Y.2d 744, 745, 551 N.Y.S.2d 889, 551 N.E.2d 90;People v. Boulware, 29 N.Y.2d 135, 140–141, 324 N.Y.S.2d 30, 272 N.E.2d 538,cert. denied405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463), or were appropriately addressed by the Supreme Court, thereby alleviating any prejudice to the defendant ( see People v. Guay, 72 A.D.3d 1201, 1203, 898 N.Y.S.2d 353;People v. Varmette, 70 A.D.3d 1167, 1168, 895 N.Y.S.2d 239). Moreover, most of the challenged remarks during summation constituted fair comment on the evidence, were responsive to arguments made by the defense, or remained within the “broad bounds of rhetorical comment permissible in closing arguments” ( People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;see People v. Burgos, 97 A.D.3d 689, 690, 947 N.Y.S.2d 897;People v. Martinez, 95 A.D.3d 462, 462, 943 N.Y.S.2d 95; People v. Dunbar, 74 A.D.3d 1227, 1228, 905 N.Y.S.2d 222). Although the challenged comment during the prosecutor's opening statement and some of the remarks during summation were improper, they were not so flagrant or pervasive as to deprive the defendant of a fair trial ( see People v. Ward, 106 A.D.3d 842, 843, 964 N.Y.S.2d 642;People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431;People v. Porco, 71 A.D.3d 791, 794, 896 N.Y.S.2d 161,affd.17 N.Y.3d 877, 934 N.Y.S.2d 360, 958 N.E.2d 538 and cert. denied––– U.S. ––––, 132 S.Ct. 1860, 182 L.Ed.2d 649;People v. Brown, 67 A.D.3d 523, 524, 888 N.Y.S.2d 504). Thus, a new trial is not warranted.
Contrary to the defendant's contention, certain communications made by a court officer to a juror were purely ministerial in nature ( see People v. Guardino, 62 A.D.3d 544, 546, 880 N.Y.S.2d 244,affd. sub nom., People v. Hecker, 15 N.Y.3d 625, 917 N.Y.S.2d 39, 942 N.E.2d 248,cert. denied sub nom., Black v. New York, ––– U.S. ––––, 131 S.Ct. 2117, 179 L.Ed.2d 911;People v. Alicea, 272 A.D.2d 241, 242, 708 N.Y.S.2d 623;People v. Torres, 174 A.D.2d 586, 586–587, 571 N.Y.S.2d 89). Accordingly, there was no improper delegation of judicial authority and the defendant's presence was not required when the court officer spoke to the juror ( see People v. Bonaparte, 78 N.Y.2d 26, 30–31, 571 N.Y.S.2d 421, 574 N.E.2d 1027;People v. Dargan, 101 A.D.3d 1143, 1143–1144, 956 N.Y.S.2d 551;People v. Miller, 57 A.D.3d 568, 569, 869 N.Y.S.2d 150;People v. Vasquez, 2 A.D.3d 759, 760, 770 N.Y.S.2d 116).
The defendant's contention that reversal is required because the Supreme Court took the verdict in his absence is without merit. Although a defendant has a fundamental right to be present at all material stages of his or her trial, including the rendering of the verdict ( seeCPL 310.40[1]; People v. Febo, 210 A.D.2d 251, 252, 619 N.Y.S.2d 340), he or she may forfeit that right by deliberately absenting himself or herself from the proceedings ( see People v. Brooks, 75 N.Y.2d 898, 899, 554 N.Y.S.2d 818, 553 N.E.2d 1328;People v. Sanchez, 65 N.Y.2d 436, 443–444, 492 N.Y.S.2d 577, 482 N.E.2d 56). The record supports the court's determination that the defendant's absence at the time his trial reconvened and the jury rendered the verdict was deliberate ( see People v. Collins, 29 A.D.3d 434, 434, 815 N.Y.S.2d 80) and that, therefore, his conduct “unambiguously indicate[d] a defiance of the processes of law sufficient to effect a forfeiture” ( People v. Sanchez, 65 N.Y.2d at 444, 492 N.Y.S.2d 577, 482 N.E.2d 56;see People v. Traylor, 74 A.D.3d 1251, 1252, 904 N.Y.S.2d 473;cf. People v. Lamb, 235 A.D.2d 829, 829, 653 N.Y.S.2d 395). RIVERA, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.