Opinion
1997-09104
Argued September 23, 2003.
October 14, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cowhey, J.), rendered July 21, 1997, convicting him of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal possession of marijuana in the third degree, criminally using drug paraphernalia in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Robert J. Boyle, New York, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and Richard Longworth Hecht of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the trial court did not violate his right to be present at all material stages of the trial ( see CPL 260.20). The trial court's in camera questioning of an alternate juror was a "ministerial communication" that "was wholly unrelated to the substantive legal or factual issues of the trial" ( People v. Harris, 76 N.Y.2d 810, 812; People v. Bumbury, 186 A.D.2d 671, 672), and the defendant's absence therefrom had no impact on his ability to defend ( see People v. Harris, 99 N.Y.2d 202, 212; People v. Velasco, 77 N.Y.2d 469; see also People v. Santiago, 255 A.D.2d 63, 68; People v. Amaker, 199 A.D.2d 513, 514; People v. Gamble, 173 A.D.2d 555, 556-557). In any event, the defendant, through counsel, waived any right to be present at the questioning of the alternate juror ( see People v. Keen, 94 N.Y.2d 533, 538-539; People v. Pellington, 294 A.D.2d 197). Furthermore, the record does not support the defendant's contention that the trial court gave the jury supplemental instructions in his and defense counsel's absence ( see People v. Pagan, 256 A.D.2d 361; People v. Washington, 246 A.D.2d 676, 677; People v. Williams, 220 A.D.2d 788).
The trial court properly charged the jury on the presumption of knowing possession ( see Penal Law § 220.25; People v. James, 266 A.D.2d 236; People v. Alexander, 152 A.D.2d 587; People v. Frazier, 138 A.D.2d 401).
The defendant's remaining contentions either are unpreserved for appellate review or without merit.
FEUERSTEIN, J.P., FRIEDMANN, McGINITY and SCHMIDT, JJ., concur.