Opinion
2013-11-14
The PEOPLE of the State of New York, Respondent, v. Lee CARR, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Lee Carr, appellant pro se.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Lee Carr, appellant pro se.
Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, SWEENY, MOSKOWITZ, CLARK, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered June 10, 2009, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning credibility. The testimony of the People's main witness was corroborated by other evidence, including testimony that defendant helped dispose of the victim's body under circumstances warranting an inference that defendant had participated in the murder.
Defendant's right to counsel and right to be present at material stages of the trial were not violated when the court had an ex parte, in camera conversation with the People's main witness, regarding the witness's assertion that he was too ill to testify that day. This inquiry was not a hearing, nor part of the trial, and it did not involve the determination of any issue requiring input from defendant or his counsel ( see e.g. People v. Hamilton, 272 A.D.2d 553, 708 N.Y.S.2d 136 [2d Dept.2000], lv. denied95 N.Y.2d 935, 721 N.Y.S.2d 611, 744 N.E.2d 147 [2000];People v. Valenzuela, 234 A.D.2d 219, 653 N.Y.S.2d 96 [1st Dept.1996]lv. denied89 N.Y.2d 1041, 659 N.Y.S.2d 872, 681 N.E.2d 1319 [1997];People v. Lovett, 192 A.D.2d 326, 595 N.Y.S.2d 476 [1st Dept.1993], lv. denied82 N.Y.2d 722, 602 N.Y.S.2d 819, 622 N.E.2d 320 [1993] ). The court placed sufficient information on the record about what transpired at the conference, and defendant was not prejudiced by the fact that the conference was unrecorded. There was no impairment of defendant's ability to cross-examine this witness about all matters relating to his credibility, including drug abuse.
The court properly declined to charge assault in the third degree as a lesser included offense. Defendant's arguments on this issue are generally similar to arguments that were unsuccessfully raised on a codefendant's appeal ( People v. Cates, 92 A.D.3d 553, 938 N.Y.S.2d 543 [1st Dept.2012], lv. denied18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ). To the extent there were any factual differences between defendant's situation and that of the codefendant, we conclude that they do not warrant a different result.
At sentencing, the court sufficiently accorded defense counsel an opportunity to speak on defendant's behalf ( seeCPL 380.50; People v. McClain, 35 N.Y.2d 483, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974],cert. denied sub nom. Taylor v. New York, 423 U.S. 852, 96 S.Ct. 98, 46 L.Ed.2d 76 [1975] ).
Defendant's pro se argument concerning the court's charge is without merit. Defendant's remaining pro se claims are unpreserved or otherwise unreviewable, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits.