Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Benny L. WALKER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of three counts of sexual abuse in the second degree (Penal Law § 130.60[2] ). Defendant contends that Supreme Court committed reversible error when, at the start of the second day of jury selection, it questioned and then discharged a sworn juror in the absence of defendant and defense counsel. Although defendant did not object to the procedure employed by the court, we agree with defendant that preservationof his contention is not required where, as here, the court committed a mode of proceedings error ( see generally People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898,affd.432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281). The court's in camera questioning and discharge of the sworn juror deprived defendant of, inter alia, his “constitutional right to counsel at trial” ( People v. Johnson, 189 A.D.2d 318, 320, 596 N.Y.S.2d 255;see People v. McLean, 15 N.Y.3d 117, 120–121, 905 N.Y.S.2d 536, 931 N.E.2d 520;People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894,rearg. denied67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558;People v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 457 N.E.2d 786). Nevertheless, “[w]aiver and preservation are separate concepts” ( Ahmed, 66 N.Y.2d at 311, 496 N.Y.S.2d 984, 487 N.E.2d 894;see People v. Webb, 78 N.Y.2d 335, 339–340, 575 N.Y.S.2d 656, 581 N.E.2d 509;People v. Moore, 233 A.D.2d 670, 671–672, 650 N.Y.S.2d 332,lv. denied89 N.Y.2d 987, 656 N.Y.S.2d 746, 678 N.E.2d 1362), and we agree with the People that, by consenting to the procedure employed by the court, defendant waived his right to appellate review of the court's allegedly improper discharge of the sworn juror ( see People v. Barner, 30 A.D.3d 1091, 1092, 815 N.Y.S.2d 862,lv. denied7 N.Y.3d 809, 822 N.Y.S.2d 484, 855 N.E.2d 800;cf. People v. Noguel, 93 A.D.3d 1319, 1320, 940N.Y.S.2d 756;see also People v. Davis, 83 A.D.3d 860, 861, 920 N.Y.S.2d 678;People v. Pennisi, 217 A.D.2d 562, 563, 629 N.Y.S.2d 449,lv. denied86 N.Y.2d 800, 632 N.Y.S.2d 513, 656 N.E.2d 612;see generally People v. Colon, 90 N.Y.2d 824, 825–826, 660 N.Y.S.2d 377, 682 N.E.2d 978).
Defendant's further contention that the court erred in permitting a police impact investigator to use the word “victim” during his testimony concerning his interview of the complainant lacks merit. He did not testify to the contents of his interview with the complainant, nor did he give an opinion relating to the complainant's credibility or defendant's guilt, and thus he did not thereby bolster the complainant's testimony ( see generally People v. Buie, 86 N.Y.2d 501, 509–510, 634 N.Y.S.2d 415, 658 N.E.2d 192), or otherwise usurp the jury's role as factfinder ( see generally People v. Hartzog, 15 A.D.3d 866, 867, 789 N.Y.S.2d 391,lv. denied4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679). In any event, the court instructed the jury both during the investigator's testimony and its charge that the jurors were the ultimate finders of fact and resolvers of credibility, and the jury is presumed to have followed the court's instructions ( see generally People v. Moore, 71 N.Y.2d 684, 688, 529 N.Y.S.2d 739, 525 N.E.2d 460;People v. Thagard, 28 A.D.3d 1097, 1098, 813 N.Y.S.2d 836,lv. denied7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289). Even assuming, arguendo, that the court erred in admitting the investigator's testimony, however, we conclude that the error is harmless ( see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.