Opinion
May 16, 1996
Appeal from the Supreme Court, New York County (Michael Corriero, J.).
Weighing all the evidence, the jurors had ample basis to credit the testimony of the two disinterested eyewitnesses and their in-court identifications of defendant, and to reject the testimony of defendant's girlfriend, who was clearly an interested witness ( People v. Cruz, 173 A.D.2d 320). While defendant's girlfriend was unable to corroborate her alibi testimony, the complaining witnesses offered consistent, logical testimony that was corroborated by police witnesses as well as ballistics, crime scene, medical and autopsy evidence. Conflicts in the testimony merely presented factual questions for the jury to resolve ( People v. Jenkins, 174 A.D.2d 379, lv denied 78 N.Y.2d 968). Likewise, the People also provided strong and persuasive evidence from which the jury could reasonably conclude that defendant both personally aided the shooting of the second victim and intended that he be murdered.
With regard to the issue of whether the trial court impermissibly allowed the deliberating jurors to commingle and dine with the alternate jurors, as we noted in our earlier memorandum decision, in the absence of "substantial evidence" to the contrary, there is a presumption of regularity in criminal proceedings ( People v. Richetti, 302 N.Y. 290, 298; People v Harris, 61 N.Y.2d 9, 16), and mere supposition and conjecture are insufficient to rebut that presumption ( People v. Garcia, 203 A.D.2d 72, lv denied 83 N.Y.2d 910). Further, it is defendant's burden to demonstrate that a violation of CPL 310.10 has, in fact, occurred ( People v. Fernandez, 81 N.Y.2d 1023; People v Leon, 209 A.D.2d 342, lv denied 84 N.Y.2d 1034).
In the matter before us, a review of the minutes of the reconstruction hearing reveals absolutely no evidence that the jurors commingled with the alternates. Indeed, the evidence presented, if it demonstrates anything at all, is that the jurors were continually supervised by court officers throughout the lunch and dinner breaks in question. We also find, in view of the Court of Appeals' recent pronouncement, that the defendant's failure to object, or utter a word of protest, renders the issue at hand unpreserved for appellate review ( People v. Agramonte, 87 N.Y.2d 765).
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Murphy, P.J., Wallach, Ross, Nardelli and Tom, JJ.