Opinion
476 KA 15-01202
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Don WILLIAMS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3] ). We affirm.
Defendant contends that Supreme Court erred in denying his challenge for cause to a prospective juror. We reject that contention. The prospective juror's statements did not demonstrate "a state of mind that is likely to preclude" rendering an impartial verdict ( CPL 270.20 [1] [b] ), or a " ‘preexisting opinion[ ] that might indicate bias’ " ( People v. Patterson , 34 N.Y.3d 1112, 1113,, 117 N.Y.S.3d 660 140 N.E.3d 982 [2019], quoting People v. Arnold , 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ). Thus, we agree with the People that the court "was not required to seek an assurance that [the prospective juror] could decide the case impartially" ( People v. Hall , 169 A.D.3d 1379, 1380, 92 N.Y.S.3d 504 [4th Dept.. 2019], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 274, 124 N.E.3d 763 [2019] [internal quotation marks omitted]; see Patterson , 34 N.Y.3d at 1113, 117 N.Y.S.3d 660, 140 N.E.3d 982 ). Moreover, even if the prospective juror's statements " ‘cast a serious doubt on [her] ability to render an impartial verdict,’ " the record establishes that she gave an " ‘unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence’ " ( People v. Wright [Appeal No. 2], 104 A.D.3d 1327, 1328, 960 N.Y.S.2d 844 [4th Dept. 2013], lv denied 21 N.Y.3d 1012, 971 N.Y.S.2d 264, 993 N.E.2d 1287 [2013] ; see People v. Chambers , 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ).
Defendant next contends that the court erred when, in response to a jury note, it projected a portion of the court's final instructions on a screen in view of the jury and simultaneously reread that portion of the charge to the jury. We note that the jury had specifically requested that the court project that portion of the instructions on a screen while rereading it to them. We also note that the jury was not supplied with a physical copy of the court's instructions. Under these circumstances, we conclude that the court did not err inasmuch as "[t]he projected charge was substantially the same as the oral charge, and the process took place entirely in the courtroom under the court's supervision and guidance. In short, there was no danger that the jurors would be left to interpret the law themselves" ( People v. Laracuente , 21 A.D.3d 1389, 1392, 801 N.Y.S.2d 676 [4th Dept. 2005], lv denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799 [2006] [internal quotation marks omitted]; see generally People v. Williams , 8 A.D.3d 963, 965, 778 N.Y.S.2d 244 [4th Dept. 2004], lv denied 3 N.Y.3d 683, 784 N.Y.S.2d 21, 817 N.E.2d 839 [2004], cert. denied 543 U.S. 1070, 125 S.Ct. 911, 160 L.Ed.2d 805 [2005] ).
Defendant contends that he was deprived of a fair trial by a remark made by the court and by comments of the prosecutor on summation and during cross-examination. Defendant, however, did not object to any of the alleged improprieties, and we therefore conclude that defendant failed to preserve that contention for our review (see CPL 470.05 [2] ; see generally People v. Fick , 167 A.D.3d 1484, 1485, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Finally, defendant contends that the court erred in refusing to suppress physical evidence based on its determination following a Darden hearing with respect to the confidential informant relied upon by the police. We reject that contention (see generally People v. Edwards , 95 N.Y.2d 486, 493-494, 719 N.Y.S.2d 202, 741 N.E.2d 876 [2000] ; People v. Darden , 34 N.Y.2d 177, 181-182, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974], rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 [1974] ). Having reviewed the sealed transcript of the Darden hearing and the summary report made available to defendant and the People, we conclude that the court properly determined that the confidential informant existed and provided the information to the police (see People v. Brown [Appeal No. 1], 93 A.D.3d 1231, 1231, 940 N.Y.S.2d 429 [4th Dept. 2012], lv denied 19 N.Y.3d 958, 950 N.Y.S.2d 109, 973 N.E.2d 207 [2012] ), and that the informant was reliable and had a basis for his or her knowledge that defendant was in possession of a gun and drugs or drug paraphernalia (see People v. Mitchum , 130 A.D.3d 1466, 1468, 12 N.Y.S.3d 749 [4th Dept. 2015] ; People v. Henry , 74 A.D.3d 1860, 1861-1862, 902 N.Y.S.2d 742 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ).