Opinion
March 25, 1993
Appeal from the Supreme Court, New York County (Leslie Crocker Snyder, J.).
Defendant was tried with his brothers Bruce and Donald. Bruce was convicted of murder in the second degree, while defendant and Donald were charged and convicted only of hindering prosecution and tampering with evidence. The convictions of Bruce and Donald have been affirmed ( 184 A.D.2d 335, lv denied 80 N.Y.2d 904; 179 A.D.2d 438, lv denied 79 N.Y.2d 858).
Defendant presented an alibi defense, but his trial counsel did not ask for, and the trial court did not give, an alibi charge. Sixteen months later, counsel advised the court that his failure to request an alibi charge was an oversight. On appeal, defendant pursues his claim that this oversight deprived him of effective assistance of counsel, but based on the evidence, the court's charge, and the question of the eyewitness's credibility that was posed to the jury, we disagree that this single error warrants a reversal. While a single error can constitute ineffective assistance of counsel (see, e.g., People v. Jenkins, 68 N.Y.2d 896), there must be a reasonable likelihood that the error, standing alone, changed the outcome of the case (see, People v De La Hoz, 131 A.D.2d 154, 156, 158, lv dismissed 70 N.Y.2d 1005). Such is not the situation here since, counsel's failure notwithstanding, "the charge as a whole conveyed the necessary information regarding the People's burden of proof" (People v Warren, 76 N.Y.2d 773, 775). Defendant was not prejudiced merely because the trial court did not tell the jury that the People must prove, beyond a reasonable doubt, both that defendant was the actor present at the crime scene and that he was not elsewhere at the same time (supra, at 776).
The court's charge clearly advised the jury that defendant was entitled to a "separate analysis of the evidence", and, particularly relevant in light of the trial claim that the eyewitness was not credible, the court appropriately charged the jury on all aspects of witness credibility, including reconciliation of inconsistencies in a single witness's testimony and conflicts in the testimony of different witnesses. In addition, the court made particular mention of how the jury was to use evidence of "a prior statement allegedly inconsistent with the testimony given on trial", it being a major point of defendant's case that the eyewitness did not implicate him in a statement that implicated his brothers. Furthermore, the court specifically instructed the jury that the burden of proof never shifts from the prosecutor to the defendant, stating "no defendant is required to prove anything".
Defendant would have this Court distinguish Warren (supra) on the facts, but defendant's case involves not the possibility of mistake, as in Warren, but whether the eyewitness was lying. If the jury believed the eyewitness's testimony that defendant was on the scene beyond a reasonable doubt, it necessarily rejected defendant's alibi.
Nor is reversal warranted because the court interviewed two sitting jurors in defendant's absence and then dismissed one of them. Defendant's reliance on People v. Sloan ( 79 N.Y.2d 386), which did not involve sitting jurors, is misplaced. This Court has consistently rejected claims that a defendant's presence is required at hearings conducted in connection with juror misconduct, provided that defense counsel's presence assured that defendant received a fair and just hearing (People v. Metro, 173 A.D.2d 282, 283, lv denied 79 N.Y.2d 1004). Moreover, the issue is unpreserved as to juror Williams, in whose discharge defendant acquiesced (People v. Espinal, 183 A.D.2d 407, 408, lv denied 80 N.Y.2d 830).
The court's ruling excluding the statement that the eyewitness gave the police was not an abuse of discretion (see, People v Piazza, 48 N.Y.2d 151, 165), since, despite the fact that the statement was not in evidence, the jury repeatedly heard of the absence of any mention of him therein (see, People v. Johnson, 176 A.D.2d 269, revd on other grounds 81 N.Y.2d 828).
Defendant's adoption of the previously unsuccessful arguments of his brothers on appeal that the eyewitness was an accomplice as a matter of law is not preserved as a matter of law, and, in any event, is without merit. Since the record permits the inference that the eyewitness was not an accomplice, the issue of her complicity was properly left to the jury (see, People v Vataj, 69 N.Y.2d 985, revg 121 A.D.2d 756).
Concur — Sullivan, J.P., Milonas, Ross, Kassal and Rubin, JJ.