Opinion
July 15, 1996
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is affirmed.
At the reconstruction hearing it was stipulated that the defendant was not present during the conferences at which his counsel and the prosecutor exercised their challenges for cause and their peremptory challenges, but that he was present when those challenges were effectuated and the challenged jurors were excused. A criminal defendant's right to be present at all material stages of his or her trial includes all proceedings where the defendant's "presence has a relation, reasonably substantial, to the fulness of his opportunity to defend" himself (Snyder v. Massachusetts, 291 U.S. 97, 105). A court may, however, exclude a defendant from a conference during which counsel advises the court of jury selection challenges if such challenges are subsequently effectuated in open court in the presence of the defendant (see, People v. Velasco, 77 N.Y.2d 469, 473; People v Santana, 213 A.D.2d 568). Accordingly, the defendant's claim that he was denied his right to be present at a material stage of the trial is meritless.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The evidence demonstrated that the defendant's conduct was reckless. The defendant had used cocaine and was fleeing from the police when he sped through a red light, striking two pedestrians, a mother and her three-year-old child who was fatally injured, then crashing into a parked car. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
There is no merit to the defendant's contention that the various asserted imperfections in the charge warrant reversal, inasmuch as the jury could gather from hearing the entire charge the correct rules to apply (see, People v. Canty, 60 N.Y.2d 830, 832; see also, People v. McDonald, 125 A.D.2d 500, 501; People v Ramsey, 124 A.D.2d 835). While there was one instance in which the court may have misspoken, in view of the numerous repetitions of the definitions of recklessness and criminal negligence, any error was harmless when the charge is construed as a whole (see, People v. Yoon Soo Chang, 189 A.D.2d 843, 844).
The defendant's challenge to the sufficiency of the court's instructions regarding juror note-taking is unpreserved for appellate review (see, CPL 470.05; People v. Stewart, 81 N.Y.2d 877). In any event, the court's cautionary instructions were sufficient (see, People v. Tucker, 77 N.Y.2d 861; People v. Ward, 195 A.D.2d 490; People v. Di Luca, 85 A.D.2d 439). Miller, J.P., Pizzuto, Joy and Friedmann, JJ., concur.