Opinion
No. 2014–224QCR.
04-07-2017
The PEOPLE of the State of New York, Respondent, v. Servino PEREZ, Appellant.
ORDERED that the judgment of conviction is affirmed.
The People charged defendant with aggravated driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192[2–a] ), driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192[2] ), driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192[3] ), unlicensed operation of a motor vehicle ( Vehicle and Traffic Law § 509[1] ), and consumption or possession of an alcoholic beverage in a motor vehicle ( Vehicle and Traffic Law § 1227 [1 ] ). A post-arrest test of defendant's blood alcohol content produced a reading of .24 of one per centum by weight. Prior to trial the charge of violating Vehicle and Traffic Law § 1227(1) was dismissed.
At a jury trial, the defense successfully objected to the People's attempt to offer, as a part of their foundation proof for the admissibility of the blood alcohol test result, a simulator solution report that did not refer to the solution lot used in defendant's test instrument. The People subsequently produced a witness who had prepared the applicable report, which report was admitted into evidence over defendant's objection that the untimely production of the report (see CPL 240.20[1][k] ) prejudiced the defense. The defense moved to preclude the test results and to dismiss the charges based thereon, aggravated driving while intoxicated per se and driving while intoxicated per se, as a sanction for the untimely production. The trial court declined to dismiss the charges but delivered an adverse inference instruction as a sanction for the disclosure violation. On consent, the court charged the jury with the lesser included offense of driving while impaired. During its deliberations, the jury requested a readback of the arresting officer's testimony, in the course of which the court absented itself, for "about a minute and a half." At the conclusion of the lengthy readback, defense counsel objected that a critical word had been omitted in one passage. The court responded by directing that the passage be reread to the jury with the appropriate correction. The court also asked the defense if it had any objection to the court's absence, and defense counsel replied, "No objection."
The jury acquitted defendant of aggravated driving while intoxicated per se, driving while intoxicated per se, and common law driving while intoxicated, and convicted him of driving while impaired and unlicensed operation of a motor vehicle. On appeal, defendant argues that the court's absence from the readback represents a mode of proceedings error that requires the reversal of the remaining convictions, and that the court should have precluded the blood alcohol test results as a sanction for the untimely disclosure of the simulator solution report.
A claim of error based on a court's absence from proceedings or a court's failure personally to exercise his or her judicial functions must normally be preserved for appellate review (see People v. Hernandez, 94 N.Y.2d 552, 555 [2000] ; People v. Smart, 100 AD3d 1473, 1474 [2012] [and citations therein] ). Here, not only did the defense fail to object to the court's 90–second absence from a lengthy readback, but when asked if the defense had any objection to that absence, defense counsel replied that he had none. Thus, having failed to object to the alleged error "at a time when [it] ... could have been obviated' " ( People v. Alcide, 21 NY3d 687, 696 [2013], quoting People v. Starling, 85 N.Y.2d 509, 516 [1995] ; see also People v. Ramirez, 15 NY3d 824, 826 [2010] ), for example, by asking that the readback be paused during the court's absence or requesting a second readback of the full portion that had been read back during the court's absence, with the court present throughout, the defense failed to preserve the claim for appellate review.
The preservation requirement (see CPL 470.05[2] ) is inapplicable where error falls within the "tightly circumscribed class' " of mode of proceeding errors ( People v. Nealon, 26 NY3d 152, 158 [2015], quoting People v. Kelly, 5 NY3d 116, 119–120 [2005] ; see also People v. Patterson, 39 N.Y.2d 288, 295 [1976] ["A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings pr(e)scribed by law"] ), which may occur "where the Judge's absence from trial proceedings prevents performance of an essential, nondelegable judicial function" ( Hernandez, 94 N.Y.2d at 555 ; see also People v. Monroe, 90 N.Y.2d 982, 984 [1997] ["an integral part of a defendant's right to a jury trial is the supervision and active participation of a(J)udge"]; People v. Toliver, 89 N.Y.2d 843, 844 [1996] [same] ). However, because mode of proceedings error "is reserved for the most fundamental flaws" ( People v. Becoats, 17 NY3d 643, 651 [2011] ), a court's absence from trial proceedings constitutes a nonwaivable reversible error only where it represents "a significant departure from the constitutionally protected, common-law judge and jury system" ( Hernandez, 94 N.Y.2d at 556 [internal quotation marks and citation omitted] ). Thus, judicial absence from a readback, while certainly "disfavored" ( Hernandez, 94 N.Y.2d at 556 ), does not always rise to the level of mode of proceedings error. In Hernandez, the Court of Appeals concluded that a mode of proceedings error did not occur notwithstanding the trial court's absence during "readbacks" because the proceeding concerned only a mechanical reading of recorded testimony, the court was available if the exercise of a judicial function was required, and there was no delegation of judicial authority. Here, the court was absent for only "about a minute and a half" during the readback, and was available to rule on any issue raised. Indeed, the court exercised its function to correct the single readback error identified by the defense (see Hernandez, 94 N.Y.2d at 556 [reversal not required, in part, because "all substantive rulings regarding the readbacks were made by the Trial Judge"] ). Defendant identifies no prejudice to his cause by these events, and there is simply no basis in the record to support a conclusion that a mode of proceedings error occurred. As a result, the preservation rule applies, and we decline to review this unpreserved issue.
With respect to the propriety of the court's sanction for the late production of the simulator solution report, defendant points to no prejudice to his ability to defend (see People v. Gomez, 135 AD3d 954, 956 [2016] ; e.g. People v. Hylton, 48 Misc.3d 130[A], 2015 N.Y. Slip Op 51028[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [production at trial of the foundation documents for the admission of a breath test result, which should have been produced in response to defendant's discovery request (see CPL 240.20[1][k] ), not shown to be prejudicial where "defense counsel had ample opportunity to, and in fact did, extensively cross-examine witnesses concerning the working order of the (testing) device"] ).
In any event, the Court of Appeals has stated:
"Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction. The appropriate sanction to be imposed is within the sound discretion of the trial court and is not to be disturbed unless it is determined that there has been an abuse of that discretion" ( People v. Jenkins, 98 N.Y.2d 280, 284 [2002] [internal quotation marks and citation omitted]; see also People v. Kelly, 62 N.Y.2d 516, 521 [1984] ; People v. O'Brien, 140 AD3d 1325, 1327–1328 [2016] ).
On the record before us, we cannot find that the trial court abused its discretion. An adverse inference charge has long been considered an appropriate remedy for a discovery violation (e.g. People v. Norwood, 279 A.D.2d 638, 639 [2001] ; People v. Hill, 265 A.D.2d 426 [1999] ) and, indeed, absent a showing of prejudice, no sanction at all was warranted (e.g. People v. Collins, 106 AD3d 1544, 1546 [2013] ; People v. Carpenter, 88 AD3d 1160, 1161 [2011] ).
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.