Opinion
06-22-2016
The PEOPLE, etc., ex rel. Masao YONAMINE, appellant, v. William J. CONNOLLY, etc., respondent.
Masao Yonamine, Otisville, N.Y., appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Danielle M. O'Boyle of counsel), for respondent.
Masao Yonamine, Otisville, N.Y., appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Danielle M. O'Boyle of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Greller, J.), dated July 7, 2015, which, without a hearing, denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, without costs or disbursements.
By judgment rendered July 12, 1988, the petitioner was convicted, upon a jury verdict, of murder in the second degree. He remains incarcerated pursuant to that judgment of conviction. The petitioner commenced the instant proceeding pursuant to CPLR article 70 for a writ of habeas corpus, arguing that he has been imprisoned after having been deprived of fundamental constitutional and statutory rights (see People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 220 N.E.2d 653 ). Specifically, he argues that the Supreme Court committed an O'Rama error (see People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ) when it read a jury note in open court in the presence of the jury and immediately responded to it without having first notified defense counsel of the contents of the note and providing him an opportunity to suggest an appropriate response outside of the presence of the jury as required by CPL 310.30 and People v. O'Rama (78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). In addition, to the extent that such a conference was held off-the-record outside of the petitioner's presence, or that the court gave the jury the requested information outside of the petitioner's presence, he contends that he was deprived of his right to be present at all material stages of the proceedings (see CPL 260.20, 310.30 ; People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 257, 246 N.Y.S.2d 399, 196 N.E.2d 56 ).
The petitioner's claim of an O'Rama error was raised on his direct appeal from the judgment of conviction (see People v. Yonamine, 192 A.D.2d 687, 597 N.Y.S.2d 102 ) and, therefore, he may not seek a second review of the claimed error already passed on in an earlier appeal (see People ex rel. Keitt v. McMann, 18 N.Y.2d at 262, 273 N.Y.S.2d 897, 220 N.E.2d 653 ). Contrary to the respondent's contention, the petitioner's claims that he was absent when the purported off-the-record conference was held and when the court gave the jury the information requested in the jury note were not raised on direct appeal or in any prior motion pursuant to CPL 440.10. However, even assuming such errors occurred, neither would have affected “ ‘the integrity of the fact-finding process' ” or deprived the petitioner of a fair trial, and therefore he cannot collaterally attack the judgment of conviction years after his trial on the basis of these errors (People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 302, 282 N.Y.S.2d 729, 229 N.E.2d 419, quoting Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 ; see People ex rel. Keitt v. McMann, 18 N.Y.2d at 262, 273 N.Y.S.2d 897, 220 N.E.2d 653 ; People ex rel. Lupo v. Fay, 13 N.Y.2d at 257, 246 N.Y.S.2d 399, 196 N.E.2d 56 ). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.