Opinion
2021–04346 Ind. No. 2627/17
08-31-2022
The PEOPLE, etc., respondent, v. Fernando RAMIREZ, appellant.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Rosalind C. Gray, Marion Tang, and Meaghan Powers of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Rosalind C. Gray, Marion Tang, and Meaghan Powers of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered June 1, 2021, convicting him of aggravated vehicular homicide (three counts), manslaughter in the second degree, aggravated unlicensed operation of a motor vehicle in the first degree, aggravated driving while intoxicated, driving while intoxicated (two counts), driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, reckless driving, and consumption or possession of an alcoholic beverage in a motor vehicle, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted, after a jury trial, of multiple crimes relating to his operation of a motor vehicle, which he drove into an intersection, ignoring a steady red light, causing a fatal crash involving two other vehicles. The defendant appeals, and we affirm.
The defendant's contention that the People did not present legally sufficient evidence that he operated his vehicle in a reckless manner is unpreserved for appellate review, as the defendant failed to move for a trial order of dismissal on the basis of that specific claim (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Peloso, 176 A.D.3d 1107, 1108, 113 N.Y.S.3d 87 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
There is no merit to the defendant's contention that the County Court's COVID–19 procedures deprived him of the ability to meaningfully participate in jury selection. While a defendant has the right to participate in jury selection (see CPL 260.20 ; People v. Sloan, 79 N.Y.2d 386, 391, 583 N.Y.S.2d 176, 592 N.E.2d 784 ; People v. Rodriguez, 71 N.Y.2d 214, 218, 524 N.Y.S.2d 422, 519 N.E.2d 333 ), which is generally understood to include an "opportunity ‘to assess the jurors’ facial expressions, demeanor and other subliminal responses as well as the manner and tone of their verbal replies so as to detect any indication of bias or hostility’ " ( People v. Wilkins, 37 N.Y.3d 371, 377, 157 N.Y.S.3d 833, 179 N.E.3d 646, quoting People v. Sloan, 79 N.Y.2d at 392, 583 N.Y.S.2d 176, 592 N.E.2d 784 ), the record here does not support the notion that either face coverings, or spacing due to social distancing, interfered with, or deprived, the defendant of the ability to observe potential jurors, or to otherwise assess their facial expressions and demeanor during voir dire (see generally United States v. Thompson, 543 F. Supp. 3d 1156, 1163–1164 ).
Contrary to the defendant's contention, he was not entitled to a mistrial on the ground that the decedent's widow was observed crying at the beginning of the People's opening remarks, in view of the County Court's observations that the widow's crying was inconspicuous and did not distract from the proceeding, and any resulting prejudice was promptly ameliorated by a directive, outside of the jury's presence, that the widow must refrain from further emotional displays during the trial (see People v. Rivera, 268 A.D.2d 538, 539, 703 N.Y.S.2d 195 ; People v. Pantoliano, 127 A.D.2d 857, 512 N.Y.S.2d 235 ). The defendant's contention that the court, in effect, should have inquired of the jury consistent with ( People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 ; see CPL 270.35[1] ), is unpreserved for appellate review, as defense counsel never requested any such inquiry (see People v. Bailey, 32 N.Y.3d 70, 80, 85 N.Y.S.3d 377, 110 N.E.3d 489 ; People v. Terrell, 149 A.D.3d 1108, 1109, 52 N.Y.S.3d 130 ). In any event, according the court the benefit of its own observations that the widow's crying was inconspicious, did not distract from the proceeding, and was of brief duration, further inquiry of the jury was not required (see People v. Rivera, 124 A.D.3d 917, 918, 998 N.Y.S.2d 898 ; cf. People v. Arena, 70 A.D.3d 1044, 1046, 895 N.Y.S.2d 514 ).
The defendant's contention that certain of the prosecutor's summation remarks constituted reversible error because they misstated the evidence concerning the speed at which the defendant operated his vehicle at the time of the crash, is unpreserved for appellate review because the defendant failed to object, request curative instructions, or timely move for a mistrial on these grounds (see CPL 470.05[2] ; People v. Stallone, 204 A.D.3d 841, 166 N.Y.S.3d 272 ; People v. Rivera, 130 A.D.3d 655, 656, 13 N.Y.S.3d 450 ). In any event, the contention is without merit. The challenged remarks were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), or constituted harmless error in light of the overwhelming evidence of the defendant's guilt, and the fact that there was no significant probability that such errors might have contributed to the defendant's convictions, and were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Macon, 200 A.D.3d 907, 155 N.Y.S.3d 363 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CONNOLLY, J.P., ROMAN, FORD and WAN, JJ., concur.