Opinion
KA 02-02657.
Decided June 14, 2004.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered November 4, 2002. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree and criminal possession of a weapon in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (YOLANDA VILLA OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree (Penal Law § 160.15), defendant contends that County Court erred in projecting the charge on the wall so that the jurors could read the charge while the court was orally delivering it. Defendant contends that the simultaneous projection was distracting to the jury and prejudicial to him to the extent that there were any discrepancies between the projected version and the oral version. He likens the alleged error herein to that in People v. Owens ( 69 N.Y.2d 585), where jurors were given a partial written charge to use during their deliberations.
Defendant concedes that he failed to object to the court's projection of the charge, but he contends that the error affects "the mode of proceedings proscribed by law" and thus presents an exception to the preservation rule ( People v. Patterson, 39 N.Y.2d 288, 295, affd 432 U.S. 197). We reject that contention. "Only fundamental defects in judicial proceedings . . . fall within [the] very narrow category of so-called `mode of proceedings' errors" ( People v. Agramonte, 87 N.Y.2d 765, 770 [emphasis in original]). Defendant is correct that the delivery of the charge to the jury is an integral part of a defendant's right to a jury trial ( see CPL 300.10). However, to the extent that the statute requires that the charge be delivered orally, the court complied with that requirement here. Defendant's challenge is only to the simultaneous projection of the charge, and that challenge does not go "to the essential validity of the proceedings conducted below" ( Patterson, 39 N.Y.2d at 296). Thus, an objection was necessary to preserve for our review defendant's contention concerning the projection of the charge ( see People v. Monroe, 90 N.Y.2d 982, 984; Agramonte, 87 N.Y.2d at 770-771).
Defendant requests in the alternative that we exercise our power to review his contention as a matter of discretion in the interest of justice and reverse the judgment of conviction based thereon ( see CPL 470.15 [a]). We decline to do so, however, inasmuch as defendant has failed to demonstrate even the potential for prejudice arising from the court's actions. Significantly, the projection of the charge on the wall under these circumstances did not involve any of the hazards identified in Owens associated with distributing a partial written charge to the jurors for their use during deliberations. The projected charge was substantially the same as the oral charge, and the process took place entirely in the courtroom under the court's supervision and guidance. In short, "there was no danger that the jurors would be left to interpret the law themselves" ( People v. Tucker, 77 N.Y.2d 861, 863).
The additional contention of defendant that he was denied effective assistance of counsel is without merit ( see People v. Baldi, 54 N.Y.2d 137, 147).