Opinion
December 17, 1991
Appeal from the Supreme Court, Bronx County (Phylis Skloot Bamberger, J.).
Defendant was convicted of criminal possession of a weapon in the second degree based upon his alleged part in a fatal shooting. Before the medical examiner testified, the trial court noted that a juror had requested that the court speak to his supervisor about rescheduling his days off to coincide with the upcoming weekend. When court reconvened on Monday, the court told counsel that the juror had been advised that he was going to be fired for calling in sick on Saturday and Sunday. After the jury returned to the courtroom, the court, the attorneys, and the juror, but not defendant, went into the robing room. Upon brief questioning by the court, the juror said that he would be able to evaluate the evidence. Both lawyers declined to question him, and the proceedings continued with counsel's summation.
Defendant claims that he was deprived of his right to be present at trial by the brief inquiry of the juror, but in the absence of a protest at trial, the claim has not been preserved. (People v Gamble, 173 A.D.2d 555.) Were we to review the claim in the interest of justice, we would find that it lacks merit. People v Mullen ( 44 N.Y.2d 1) has not been overruled by People v Buford ( 69 N.Y.2d 290; see, People v Darby, 75 N.Y.2d 449, 453-454; People v Torres, 174 A.D.2d 586). Defendant's absence from the robing room did not impinge on his right to a "fair and just" (Snyder v Massachusetts, 291 U.S. 97, 108) inquiry into the juror's qualifications, as his rights were protected by "`single-minded'" defense counsel (People v Darby, 75 N.Y.2d, supra, at 454). And unlike the circumstances found in Buford, counsel was permitted to participate in the inquiry of the juror and there is no challenge to the propriety of the court's decision regarding the juror's qualifications to continue (see generally, People v Romero, 172 A.D.2d 272, lv denied 78 N.Y.2d 973).
Defendant's claim that the court's adverse inference charge suggested that his choice not to testify was a tactical maneuver is also unpreserved (People v Autry, 75 N.Y.2d 836; People v Peralta, 172 A.D.2d 155, lv denied 78 N.Y.2d 925; People v Cruz, 171 A.D.2d 607, lv denied 78 N.Y.2d 921). It also lacks merit. The charge did not suggest that defendant had an obligation to testify (People v McLucas, 15 N.Y.2d 167), and was not overly lengthy, and while defendant claims that the court should not have alluded to his "choice" not to testify, the court's instructions were facially correct statements of law. (People v Autry, supra.)
Concur — Milonas, J.P., Asch, Kassal, Smith and Rubin, JJ.