[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Motions to sever. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Everson 2024 NY Slip Op 04013 [229 AD3d 1349] July 26, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v James Everson, Appellant. Keem Appeals, PLLC, Syracuse (Bradley E. Keem of counsel), for defendant-appellant. William J. Fitzpatrick, District Attorney, Syracuse (David D. Bassett of counsel), for respondent. Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered July 15, 2021. The judgment convicted defendant upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree (four counts). It is hereby ordered that the judgment so appealed from is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) arising out of a drive-by shooting of the victim. We affirm. Defendant's contention that County Court failed to conduct a sufficient inquiry into the People's readiness as directed by CPL 30.30 (5) is not preserved for our review inasmuch as defendant did not object to the sufficiency of the inquiry ( see People v Hardy , 47 NY2d 500, 505 [1979]; see generally People v Wills , 224 AD3d 1329 , 1330 [4th Dept 2024], lv denied 41 NY3d 1005 [2024]). We reject defendant's contention that the court erred in admitting evidence of prior violence between feuding groups of individuals who reside in the vicinity of the park where the shooting occurred, as well as evidence that defendant and his codefendant were affiliated with one of those groups. It is well settled that "[e]vidence regarding gang activity can be admitted to provide necessary background, or when it is 'inextricably interwoven' with the charged crime[ ], or to explain the relationships of the individuals involved" ( People v Kims , 24 NY3d 422 , 438 [2014]; see People v Tatum , 204 AD3d 1400 , 1402 [4th Dept 2022], lv denied 38 NY3d 1074 [2022]). Here, the testimony regarding defendant's affiliation with certain individuals provided necessary background information to explain the relationship of defendant to his codefendant and defendant's motive for shooting from a moving car into a crowd of people in the park ( see People v Savery , 209 AD3d 1268 , 1269 [4th Dept 2022], lv denied 39 NY3d 1075 [2023]), and we further conclude that the prejudicial effect of that testimony did not outweigh its probative value ( see People v Haygood , 201 AD3d 1363 , 1364 [4th Dept 2022], lv denied 38 NY3d 951 [2022]). We also reject defendant's contention that the court erred in refusing to sever his trial from that of his codefendant. "The decision to grant or deny a separate trial is vested primarily in the sound judgment of the [t]rial [j]udge, and defendant['s] burden to demonstrate abuse of that discretion is a substantial one" ( People v Mahboubian , 74 NY2d 174, 183 [1989]). Moreover, "[j]oint trials are preferred where, as here, the same evidence will be used and the defendant and codefendant[ ] are charged with acting in concert . . . , and severance is not required solely because of hostility between the [defendants], differences in their trial strategies or inconsistencies in their defenses" ( People v Rideout , 177 AD3d 1377 , 1378-1379 [4th Dept [*2] 2019], lv denied 35 NY3d 973 [2020] [internal quotation marks omitted]). Contrary to defendant's contention, the codefendant's counsel did not act as a second prosecutor because, although he emphasized the People's evidence against defendant on summation, "[he] did not elicit any new evidence against the defendant that his jury would not otherwise have heard had he been granted a separate trial" ( People v Bostic , 217 AD3d 678 , 680 [2d Dept 2023], lv denied 41 NY3d 964 [2024]; see People v Osborne , 88 AD3d 1284 , 1285 [4th Dept 2011], lv denied 19 NY3d 999 [2012], denied reconsideration 19 NY3d 1104 [2012]; cf. People v Cardwell , 78 NY2d 996, 998 [1991]). We also reject defendant's contention that he was denied a fair trial by prosecutorial misconduct, including the prosecutor's references to the musical West Side Story in her opening statement and the quality of the police investigation in her summation. The challenged comments were not so egregious as to deprive defendant of a fair trial ( see People v Melendez , 11 AD3d 983 , 984 [4th Dept 2004], lv denied 4 NY3d 888 [2005]; People v White , 291 AD2d 842, 843 [4th Dept 2002], lv denied 98 NY2d 656 [2002]) and, further, "the court alleviated any prejudice arising from the prosecutor's comments and summation by instructing the jury that the comments and summations of the prosecutor and defense counsel do not constitute evidence" ( People v Williams , 28 AD3d 1059 , 1061 [4th Dept 2006], affd 8 NY3d 854 [2007]). Contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment. All concur except Hannah, J., who dissents and votes to reverse in the following memorandum. Hannah, J. (dissenting). I respectfully dissent because I believe that severance was compelled in this case and thus that defendant is entitled to a new trial. Severance of criminal trials that could otherwise be joined is rooted in the fundamental concern that a defendant may be unduly prejudiced by a joint trial ( see CPL 200.40 [1]). The determination whether to sever permissively joined trials requires, essentially, a balancing of judicial economy on the one hand and a defendant's right to a fair trial on the other ( see People v Mahboubian , 74 NY2d 174, 183 [1989]). Although typically left to the discretion of the trial court, the Court of Appeals has "set forth a two-part test for determining whether severance is required," holding that " 'severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt' " ( People v Cardwell , 78 NY2d 996, 997-998 [1991], quoting Mahboubian , 74 NY2d at 184). The first part of that test is satisfied here. At trial, it was alleged by the prosecution that three individuals were riding in a vehicle, that two of those persons fired gunshots from the vehicle, and that the gunshots killed the victim. The third person in the vehicle (eyewitness) was called as a prosecution witness and accused defendant and his codefendant of being the two shooters. The core of defendant's presentation to the jury was that he was not one of those two shooters because the prosecution had, his counsel argued on summation, failed to establish either that he was present in the vehicle or, even if present, that he was one of the two persons alleged to have fired from it. In stark contrast, the core of the codefendant's presentation was, as explicitly synthesized during closing argument, that defendant was one of the two shooters, along with the eyewitness. One cannot both be and not be one of the shooters, and thus the core of each defense stood, axiomatically, in irreconcilable conflict. In one case defendant was not a shooter and may not have even been present, whereas in the other he was not only present but one of the two persons who shot at the victim. "This was more than complete disagreement on some factual detail, or even some peripheral aspect of the case . . . The defenses presented here were antagonistic at their crux" ( Mahboubian , 74 NY2d at 185-186). The second part of the test, however, requires a deeper look into the circumstances of the case. Here, the People most directly established defendant's guilt through the testimony of the eyewitness who, if credited, established defendant's identity as one of the shooters. Understandably then, discrediting the eyewitness became a central focus of defendant's defense at every stage—through pretrial motions, cross-examination, trial motions, and closing argument. At each step, defendant attempted to establish that the eyewitness was not to be believed based [*3] on his history of bad acts; his evasiveness and untruthfulness when speaking to the police; and discrepancies in his various statements to the police, his testimony before the grand jury, and his testimony at trial. Interjected into this otherwise classic battle over witness credibility, however, was the codefendant's defense. Despite defendant's pretrial motions, cross-examination of prosecution witnesses, and preparations for closing argument all aimed at discrediting the eyewitness, at the end of trial, the codefendant's counsel stood before the jury and exclaimed during his own closing argument that the jury knew—or ostensibly should have known—"two things for sure about the car, shots came from it and there were two guns." With an equal lack of equivocation, the codefendant's counsel then stated that "we know who one of those persons was that had [a] gun," thereby identifying defendant as one of the shooters. Not only did those explicit, zero-hour statements by the codefendant's counsel sharply undercut defendant's claim of innocence, but they also more specifically undercut his defense against the eyewitness's damning testimony. Rather than posing a simple choice of whether to credit the eyewitness, defendant now had to overcome the accusations of two persons, i.e., the eyewitness and the codefendant, who were now both telling a consistent story insofar as it identified defendant as a shooter. Unlike what would have occurred absent the codefendant's involvement, discrediting the eyewitness's identification of defendant as a shooter now required that the jury discredit both the eyewitness and the codefendant—a person defendant lacked the ability to cross-examine—and overlook the fact that defendant apparently could not get his own story to match those of either of the other two people in the car. In short, the unambiguous accusations from the codefendant on summation not only provided, in effect, a third-party endorsement of the People's case against defendant, but it also served to undermine a lynchpin of defendant's defense—that the eyewitness was incredible—by presenting a second voice, independent of the People's case, that specifically endorsed the eyewitness's identification of defendant. Under the circumstances of this case, I believe that the irreconcilable conflict between defendant and the codefendant, in light of the role that the eyewitness's credibility played and the way in which that conflict impacted how the jury would view the credibility of his testimony, created a significant danger that this conflict alone permitted the jury to infer that defendant was one of the shooters, thus inferring his guilt ( see Cardwell , 78 NY2d at 997-998). Indeed, because County Court refused to sever defendant's trial from that of the codefendant, the jury was presented with two defendants who were not telling consistent stories, while also being presented with a prosecution witness—the only person other than the two defendants who was inside the car—whose testimony both defendants attempted to claim was incredible. This situation, as perhaps reflected in the verdict, created a "significant possibility that the jury unjustifiably concluded by virtue of the conflict itself that both defenses were incredible and gave undue weight to the government's evidence," discrediting both defendant and the codefendant due to the finger-pointing between them and instead lending greater weight to the eyewitness presented by the People ( Mahboubian , 74 NY2d at 186). Although the majority notes that the codefendant did not elicit new evidence against defendant that the jury would not have otherwise heard in a severed trial, I disagree with that characterization. Initially, the above two-part analysis articulated by the Court of Appeals speaks to the conflict between "each defense" ( id. at 184), not the way in which a codefendant has elicited new evidence not otherwise brought forth by the People ( see Cardwell , 78 NY2d at 997-998; Mahboubian , 74 NY2d at 184). Although certainly a reason for which severance may be compelled, I do not view the Mahboubian standard as requiring a codefendant's defense to conflict in any particular way or to present such conflict by any particular means, so long as the conflict creates the sort of "significant danger" the analysis contemplates (74 NY2d at 184). In any event, I believe that the closing argument of the codefendant's counsel in fact did reveal new information when viewed in light of the credibility battle between defendant and the eyewitness. Prior to the codefendant's closing argument, testimony reflected that the eyewitness's accusation against defendant was his and his alone. Until closing argument, the jury did not know that the codefendant would adopt that allegation. Although the codefendant's endorsement of the identification of defendant was not a new piece of physical evidence or new testimony, it was certainly a new development that altered the landscape of how the jury would likely consider the credibility dispute before it, and one that would not have arisen in a severed trial. Consequently, I believe that severance was "compelled" ( id .). Inasmuch as I conclude [*4] that none of defendant's contentions requires dismissal of the indictment, I would therefore reverse the judgment of conviction and grant defendant a new trial. Present—Whalen, P.J., Curran, Bannister, DelConte and Hannah, JJ.

[Assistant]
Lower
court did not err in refusing to sever Everson's trial from that of his
codefendant.
"The decision to grant or deny a separate trial is vested
primarily in the sound judgment of the [t]rial [j]udge, and defendant['s]
burden to demonstrate abuse of that discretion is a substantial one"
.
Moreover,
"[j]oint trials are preferred where, as here, the same evidence will be used and the defendant and codefendant[ ] are charged with acting
in concert . . . , and severance is not required solely because of hostility
between the [defendants], differences in their trial strategies or
inconsistencies in their defenses"
.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Tenace 2024 NY Slip Op 03784 [229 AD3d 908] July 11, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Troy M. Tenace, Appellant. Danielle Neroni Reilly, Albany, for appellant. G. Scott Walling, Special Prosecutor, Slingerlands, for respondent. McShan, J. Appeal from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered March 6, 2023, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree (two counts) and criminal obstruction of breathing or blood circulation. In March 2022, defendant was charged by indictment with assault in the first degree, two counts of assault in the second degree and criminal obstruction of breathing or blood circulation stemming from an altercation in September 2021 involving defendant's former girlfriend and her father in the Town of Ballston, Saratoga County. After an eight-day jury trial, defendant was convicted as charged and subsequently sentenced on the assault in the first degree conviction to a prison term of 15 years, to be followed by five years of postrelease supervision, and to lesser concurrent terms of incarceration for the remaining convictions. Defendant appeals. Turning first to his legal sufficiency and weight of the evidence arguments, defendant contends that the People failed to establish that he used a weapon during the commission of the crime and that he intended to cause serious physical injury to the father. [FN1] Although defendant raised this contention in his motion to dismiss the indictment at the close of the People's proof, "his failure to renew such motion at the close of his proof renders his challenge to the legal sufficiency of the evidence unpreserved" ( People v Oates , 222 AD3d 1271 , 1272 [3d Dept 2023]). "Nevertheless, our assessment of defendant's challenge to the weight of the evidence requires that we confirm whether the People proved each element beyond a reasonable doubt, and we do so while considering the evidence in a neutral light with deference to the jury's resolutions on witness credibility" ( People v Mercer , 221 AD3d 1259 , 1260 [3d Dept 2023] [citations omitted], lv denied 41 NY3d 1003 [2024]). The trial evidence established that, on a rainy evening in September 2021, law enforcement responded to a 911 call at defendant's home, where they encountered the father sitting in a chair at the end of defendant's driveway with bruising around his eye and a significant laceration to the back of his head. The girlfriend testified that she and defendant had been arguing earlier that evening concerning her discovery that he had fathered a child with another woman. According to the girlfriend, defendant would not allow her to leave and directed her to remain in the bedroom. At some point, the argument continued and, after the girlfriend took defendant's phone from him, he put her in a choke hold and dragged her across the kitchen. When defendant eventually let go of her, the girlfriend called her mother on the phone and asked that she come get her. The girlfriend's mother and grandmother arrived shortly after, accompanied by the father. The testimony established that the father then told defendant that they needed to talk and asked him to come outside [*2] , prompting defendant to jump off the couch in an "agitated" state and head out the door. After the two headed outside, defendant went around the side of a detached garage on the property, where he first retrieved a garbage can and threw it at the father. Defendant then went back around the side of the garage and, according to the girlfriend and the father, when he emerged, he approached the father from the side and struck him in the head with a shovel. After he was hit, the father fell to the driveway and, while the father was lying on his back, defendant stood over the father and struck him in the face with his fists. Eventually, the girlfriend pulled defendant off the father and she then called 911. During that call, she informed the dispatcher that defendant had just beaten the father up, that the father was bleeding from his head and that he was unconscious. She did not indicate to the dispatcher that a shovel had been used in the attack. The girlfriend provided details of the attack to responding law enforcement but again made no mention of a shovel at that time, which she attributed to a desire to protect defendant. Nevertheless, at trial, she testified that she recognized the shovel, that she and defendant had stored it behind the garage and that when she went back to their house a few days later, the shovel was gone. Meanwhile, the father informed a responding paramedic who treated him at the scene that defendant had hit him in the back of the head with a shovel. After the altercation, the father was transported to the hospital, where he was treated for his injuries, including the laceration in the back of his head, a depressed skull fracture, bleeding in his brain and an ankle fracture. Law enforcement returned to the home that night and searched for a shovel but ultimately never recovered the instrument. Here, a different verdict would not have been unreasonable had the jury rejected the girlfriend and the father's account, as they were the only individuals to testify to defendant's use of a shovel during the altercation. To this end, defendant's arguments are largely directed at testimony pertaining to the adequacy of the search for the shovel by law enforcement, the lack of testimony from any other eyewitness that placed a shovel on defendant's person immediately after the altercation and the failure of any treating provider to definitively attribute the wound to a strike from a shovel. Nevertheless, viewing the evidence in a neutral light and deferring to the jury's resolutions on witness credibility, the determination that defendant utilized a shovel in the altercation was supported by the weight of the evidence and we discern no reason to disturb it ( see People v Abussalam , 196 AD3d 1000 , 1006 [3d Dept 2021], lv denied 37 NY3d 1144 [2021]; People v Watson , 174 AD3d 1138 , 1140 [3d Dept 2019], lv denied 34 NY3d 955 [2019]; People v Williams , 161 AD3d 1296 , 1297-1298 [3d Dept 2018], lv denied 32 NY3d 942 [2018]). [FN2] Further, defendant's [*3] intent to cause serious harm was readily inferable from his conduct and the severity of the father's injuries ( see People v Fisher , 221 AD3d 1355 , 1358 [3d Dept 2023], lv denied 40 NY3d 1092 [2024]; People v Abussalam , 196 AD3d at 1006; People v Lewis , 46 AD3d 943 , 945 [3d Dept 2007]). Although the testimony reflects some inconsistency in the various accounts of the altercation and the reporting to first responders in the aftermath, we find that the jury verdict pertaining to defendant's assault charges is adequately supported and is not against the weight of the evidence ( see Penal Law §§ 120.05 [1], [2]; 120.10 [1]; 10.00 [13]). However, consistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant's contention that County Court's empaneling of an anonymous jury in his case was in error. We again note that the practice of empaneling an anonymous jury contains no statutory justification, as CPL 270.15 (1-a) merely permits the withholding of residential or business addresses of prospective jurors upon a showing of good cause ( see People v Heidrich , 226 AD3d at 1098; People v Flores , 153 AD3d 182 , 189 [2d Dept 2017], affd 32 NY3d 1087 [2018]; see also CPL 270.15 [1]). While the Court of Appeals has not explicitly sanctioned the practice, it has suggested that, at the very least, "doing so is error where no 'factual predicate for the extraordinary procedure' has been shown" ( People v Heidrich , 226 AD3d at 1099, quoting People v Flores , 32 NY3d 1087, 1088 [2018]). To that end, the People concede, and we agree, that the record contains no factual support for utilizing an anonymous jury in this case. Instead, the People focus their arguments on defendant's failure to preserve the issue by consenting to the practice, alongside the contention that the error was, in any event, harmless. On the latter point, we need only note that we recently rejected the applicability of a harmless error analysis to this manner of error ( see People v Heidrich , 226 AD3d at 1099; see also People v Flores , 153 AD3d at 193-195). As to preservation, although defendant concedes his failure to object during pretrial proceedings, he asks that we take corrective action in the interest of justice ( see CPL 470.15 [6] [a]; see also People v Nellis , 217 AD3d 1056 , 1062 [3d Dept 2023]). [FN3] Considering the totality of circumstances, including the potential effect on the fairness of trial that flows from the decision to utilize an anonymous jury without any justification ( see People v Flores , 153 AD3d at 195), we find such action is appropriate. We therefore exercise our interest of justice jurisdiction and grant defendant a new trial. Defendant's remaining arguments are rendered academic by our determination. [FN4] Garry, P.J., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of Saratoga County for a new trial. Footnotes Footnote 1: Defendant's failure to address his conviction for criminal obstruction of breathing or blood circulation on appeal renders any challenge to the evidence supporting that conviction abandoned ( see People v Miranda , 163 AD3d 1168 , 1169 n [3d Dept 2018], lv denied 32 NY3d 1066 [2018]). Footnote 2: To the extent defendant suggests that the testimony of the girlfriend and the father should be completely discounted based on their lack of credibility, that argument is first raised in his reply brief and we therefore may not address it ( see People v Ackerman , 173 AD3d 1346 , 1348-1349 [3d Dept 2019], lv denied 34 NY3d 949 [2019]). In any event, were we to do so, we disagree with the premise that both witnesses were incredible as a matter of law ( see People v Osman , 228 AD3d 1007, 1011-1012 [3d Dept 2024]). Footnote 3: Defendant's contention that the empanelment of an anonymous jury implicates the mode of proceedings is raised improperly for the first time in his reply brief and, therefore, we do not address whether County Court's error falls within this narrow exception to the preservation requirement ( see People v Kreutter , 121 AD3d 1534 , 1535 [4th Dept 2014], lv denied 25 NY3d 990 [2015]; see generally People v King , 27 NY3d 147 , 153 [2016]). Footnote 4: As to County Court's decision to eschew the use of the mechanical means of selecting jurors in favor of the court simply calling upon those seated in the courtroom, although we need not opine on the legality of that procedure in light of our decision to remit for a new trial based upon the improper empaneling of an anonymous jury, we nevertheless caution that the practice be avoided ( see People v Williams , 2 NY3d 725 , 726 [2004]) in order to forestall the impression that the court is playing too great of a role in the actual selection of the jury and allowing its own bias to pervade the process ( see People v Batticks , 35 NY3d 561 , 565 [2020]; Hildreth v City of Troy , 101 NY 234, 239 [1886]; see generally People v Blackmond , 212 AD2d 402, 402 [1st Dept 1995], lv denied 85 NY2d 969 [1995]). On that note, the procedure employed by County Court renders meaningful appellate review as to whether any inappropriate factors pervaded the process substantially difficult, if not impossible ( see generally People v Degondea , 269 AD2d 243, 243 [1st Dept 2000], lv denied 95 NY2d 834 [2000]; People v Rodriguez , 177 AD2d 269, 269 [1st Dept 1991]).

[Assistant]
County
Court erred in empaneling an anonymous jury.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Williams 2024 NY Slip Op 04746 [231 AD3d 412] October 1, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Kaseem Williams, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jonathan Sclar of counsel), for respondent. Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J., at CPL 730.30 hearing; Michael A. Gross, J., at trial and sentencing), rendered October 29, 2018, convicting defendant, after a jury trial, of criminal contempt in the first degree, criminal obstruction of breathing or blood circulation, and endangering the welfare of a child, and sentencing him, as a second felony offender, to an aggregate prison term of 2 to 4 years, unanimously affirmed. The court properly found defendant fit to stand trial (CPL 730.10 [1]; People v Phillips , 16 NY3d 510 , 516-517 [2011]). The court's decision was based on the reports and testimony of two psychiatric examiners who spoke with defendant and examined his medical records ( see CPL 730.20 [1]). That the examiners interviewed defendant for only about 10 minutes was due to defendant's own refusal to be interviewed ( see People v Torres , 194 AD2d 488 [1st Dept 1993], lv denied 82 NY2d 727 [1993]). Defendant's "obstreperousness with the court, contentiousness with counsel, and 'strange notions' about his case" did not establish that he was "unable to understand the proceedings and assist in his defense" ( People v Cagan , 179 AD3d 504 , 505 [1st Dept 2020], lv denied 35 NY3d 968 [2020]). The court properly denied defendant's request for a bench trial. Defendant stated that he did not understand the waiver of a jury trial, indicating that he was "not fully aware of the consequences of the choice he [was] making" (CPL 320.10 [2]). The court noted defendant's lack of understanding on the record ( cf. People v Swan , 130 AD2d 6, 8 [4th Dept 1987], lv denied 70 NY2d 804 [1987]). Moreover, when given a chance to discuss the waiver with his attorney, defendant refused to do so. The court "properly found that defendant forfeited his right to be present at trial ( see CPL 260.20) through his frequent outbursts and interruptions of the proceedings, after the court repeatedly warned him that he would be removed from the courtroom if he continued such behavior" ( People v McCray , 165 AD3d 595 , 596 [1st Dept 2018], lv denied 32 NY3d 1175 [2019]). Concur—Moulton, J.P., Mendez, Higgitt, O'Neill Levy, JJ.

[Assistant]
Trial court properly held defendant forfeited right to be present at trial by
virtue of "his frequent outbursts and interruptions of the proceedings, after
the court repeatedly warned him that he would be removed from the
courtroom if he continued such behavior.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Trial in absentia. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Johnson 2024 NY Slip Op 03830 [229 AD3d 639] July 17, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Theodore Johnson, Appellant. Patricia Pazner, New York, NY (Marissa Reap and Chelsey Amelkin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Terrence P. Heller of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered July 1, 2019, convicting him of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in proceeding with the trial in the defendant's absence. "A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions" ( People v Parker , 57 NY2d 136, 139 [1982]; see People v George , 219 AD3d 502 , 502 [2023]). "However, a defendant may 'forfeit that right by deliberately absenting himself [or herself] from the proceedings' " ( People v George , 219 AD3d at 502 [internal quotation marks omitted], quoting People v Pierotti , 208 AD3d 1254 , 1254 [2022]; see People v Sanchez , 65 NY2d 436, 443-444 [1985]). "[B]efore proceeding in the defendant's absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant's absence is deliberate and to recite on the record the reasons for its finding" ( People v Ramos , 179 AD3d 842 , 843 [2020] [internal quotation marks omitted]; see People v George , 219 AD3d at 502). Here, the record supports the Supreme Court's determination, made after a hearing, that the defendant's absence was deliberate and that his conduct "unambiguously [indicated] a defiance of the process of law" sufficient to effect a forfeiture of his right to be present ( People v Sanchez , 65 NY2d at 444; see People v George , 219 AD3d at 502). The record reflects that on November 26, 2018, after the court informed the parties that it would proceed with jury selection, the defendant absconded during a brief recess, that the defendant did not appear throughout the duration of a hearing pursuant to People v Parker (57 NY2d 136 [1982]), which concluded on November 29, 2018, and that efforts to locate the defendant were fruitless. Moreover, the record shows that the court satisfied its obligation to consider "all appropriate factors" before proceeding with the trial in absentia ( People v Parker , 57 NY2d at 142; see People v Baynes , 162 AD3d 897 , 898 [2018]). Thus, the court providently exercised its discretion in determining that the defendant forfeited his right to be [*2] present and in proceeding with the trial in his absence. The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is largely unpreserved for appellate review, as, with respect to the majority of the remarks at issue, defense counsel either failed to object, raised only generalized objections, or failed to request additional relief when the Supreme Court sustained his objections ( see CPL 470.05 [2]; People v Flowers , 213 AD3d 692 , 693 [2023]; People v Munnerlyn , 193 AD3d 981 , 982 [2021]). In any event, the remarks at issue either were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to arguments made by defense counsel in summation, or otherwise do not warrant reversal ( see People v Broderick , 199 AD3d 696 , 697 [2021]; People v Burns , 183 AD3d 835 , 836 [2020]). Contrary to the defendant's contention, the curative instructions provided by the court were sufficient to mitigate any potential prejudice caused by the prosecutor's statement during summation that the defendant and another individual arrested with the defendant "do burglaries together" ( see People v Heide , 84 NY2d 943, 944 [1994]; People v Pooler , 226 AD3d 705 [2024]). The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit. Duffy, J.P., Connolly, Wooten and Ventura, JJ., concur.

[Assistant]
Defendant's conviction affirmed. The trial court properly conducted the
trial in defendant's absence because he deliberately forfeited that right.
After a hearing, the trial court found defendant's absence was deliberate
and that his conduct "unambiguously [indicated] a defiance of the process
of law" sufficient to effect a forfeiture of his right to be present (People v
Sanchez, 65 NY2d 436). The record reflects that on November 26, 2018,
after the court informed the parties that it would proceed with jury
selection, the defendant absconded during a brief recess, that the defendant
did not appear throughout the duration of a hearing pursuant to People v
Parker 57 NY2d 136.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Defendant given choice between attending trial in restraints or via video conference. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Ortiz 2024 NY Slip Op 06672 [233 AD3d 628] December 31, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Robert Ortiz, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Samuel Steinbock-Pratt of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Faith DiTrolio of counsel), for respondent. Judgment, Supreme Court, New York County (Gregory Carro, J., at suppression hearing; Daniel Conviser, J., at restraint hearing; Ruth Pickholz, J., at trial and sentencing), rendered October 4, 2018, as amended April 15, 2019, and December 21, 2022, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously affirmed. Order, same court (Pickholz, J.), entered on or about December 27, 2018, which denied defendant's CPL 440.10 motion to vacate his conviction, unanimously affirmed. The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations. In the early morning hours, in an area with a high incidence of drug trafficking, a trained and experienced narcotics officer saw defendant being let inside a building by a man who handed him money. Defendant counted the money, after which he removed a small plastic bag from his back waist area underneath his pants and handed items from the bag to the other man. Although the officer could not see the items handed over, he believed he had just observed a drug transaction ( see People v Martin , 197 AD3d 434 , 434-435 [1st Dept 2021], lv denied 37 NY3d 1097 [2021]). Probable cause does not require certainty, and the totality of circumstances provided probable cause for defendant's arrest ( see People v Jones , 90 NY2d 835, 837 [1997]; People v McRay , 51 NY2d 594, 603-604 [1980]). The officer did not conduct a strip search; rather, he pulled defendant's pants and underwear forward, without pulling his pants down, and reached into defendant's underwear to retrieve a bag that contained drugs. Defendant was not disrobed in any way, and the record does not show that his genitals were exposed to the view of the officer or the public ( see People v Lesane , 184 AD3d 461 , 461 [1st Dept 2020]; see People v Butler , 27 AD3d 365 , 369 [1st Dept 2006], lv dismissed 6 NY3d 893 [2006]). Although the Fifth and Fourteenth Amendments prohibit "routinely" placing defendants in physical restraints before the jury, a court may order the use of restraints where their "use is justified by an essential state interest—such as the interest in courtroom security—specific to the defendant on trial" ( Deck v Missouri , 544 US 622, 624, 627 [2005] [internal quotation marks omitted]). The trial court may do so only after making individualized findings on the record, focused on the three fundamental considerations of the presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings ( id. at 630-632; see People v Clyde , 18 NY3d 145 , 152 [2011], cert denied 566 US 944 [2012]). Where a court has conducted a sufficient inquiry and has considered the relevant factors, it has "broad discretion in deciding whether a restraint is necessary for courtroom security" ( People v Buchanan , 13 NY3d 1 , 4 [2009]). Here [*2] , defendant was not deprived of his right to a fair trial and to be present at his trial when the court, after conducting a hearing, determined that defendant could not be physically present at trial unless he wore a spit mask and leg shackles. The hearing evidence demonstrated the need for both leg shackles and a spit mask, based on defendant's disruptive, belligerent conduct at the suppression hearing, his repeated use of profanities against the court, his threat to physically injure the court officers, and his act of spitting at the court officers, hitting one officer with spit near his eye. "A court with a reasonable basis for its security concerns based on a defendant's prior violent conduct, disrespect for the solemnity of the proceedings, and inability to maintain their composure . . . need not wait until the court's fears are realized" before imposing restraints or restrictions on a defendant's presence at trial ( People v Dunton , 42 NY3d 97 , 109 [2024]). Defendant was not deprived of his right to be present at trial, where he was given the choice of appearing by video conference rather than appear with physical restraints, as he chose to do. Concur—Kern, J.P., Kapnick, Kennedy, Higgitt, O'Neill Levy, JJ.

[Assistant]
Trial court's decision that defendant could not be in courtroom unless he
wore a spit mask and leg shackles was amply supported by record
developed at hearing. E.g., his behavior at suppression hearing, spitting at
court officers. Furthermore, defendant not deprived of his right to be
present at trial "where he was given the choice of appearing by video
conference rather than appear with physical restraints, as he chose to do.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Defendant's absence from Sandoval hearing requires reversal. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Sharp 2024 NY Slip Op 05132 [42 NY3d 369] October 17, 2024 Rivera, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Eric D. Sharp, Appellant. Argued September 12, 2024; decided October 17, 2024 People v Sharp , 214 AD3d 1428 , reversed. {**42 NY3d at 371} OPINION OF THE COURT Rivera, J. We reverse defendant's conviction and grant him a new trial. The trial court held a conference in defendant's absence on the prosecution's motion to cross-examine him on his prior criminal conduct, in violation of his right to be present ( see CPL 260.20; People v Dokes , 79 NY2d 656, 662 [1992]). The court held a subsequent hearing on the motion in defendant's presence. However, the court did not hear arguments on the merits, did not confirm defendant's understanding of the underlying facts or the merits of the application, and merely announced its decision. Thus, the subsequent proceeding did not provide for defendant's meaningful participation in the determination of the merits of the motion and did not cure the earlier violation. * * * Defendant was charged with one count of unlawfully possessing a defaced firearm (Penal Law § 265.02 [3]) and one count of unlawfully possessing a loaded firearm outside of his home or place of business (Penal Law § 265.03 [3]). Before trial, the prosecution filed a Sandoval application, served on defense counsel, to cross-examine defendant about seven prior convictions, one pending case, and the criminal conduct underlying each offense. The application enumerated these offenses {**42 NY3d at 372} and provided a date and description for each. The court held an in-camera, off-the-record conference on the motion with the prosecution and defense counsel, for which defendant was not present. [*2] At a subsequent in-court appearance with defendant present, the following exchange occurred: "THE COURT: . . . I'm going to make a ruling on the Molineux application. Do you want to be heard, [defense counsel], on the Molineux/Sandoval? "[DEFENSE COUNSEL]: Your Honor, I would stand by our discussion in chambers. "THE COURT: All right. I'm going to deny the request to use any Molineux evidence against Mr. Sharp at trial. "In regards to Sandoval, I reviewed the Sandoval application and if Mr. Sharp testifies I would not allow number 1, as far as moot. Number 2 is a violation. That would not be allowed. Number 3 is moot, not allowed. Number 4 is moot—is—let me see. That's just a felony conviction only, not the underlying facts. Number 5, I'd allow a misdemeanor, not the underlying facts. Number 6, the same, allow a misdemeanor, underlying facts. Number 7, the same, misdemeanor, underlying facts. Number 8 is currently pending in Monroe County Court sounds like, so that will not be allowed as it's currently pending, current status. "[DEFENSE COUNSEL]: It is pending, your Honor. "[PROSECUTOR]: Yes. "[DEFENSE COUNSEL]: I do represent him on that. "THE COURT: I'll not allow a pending charge to be used against him if he chooses to testify. "[PROSECUTOR]: Okay. "THE COURT: Okay. That is my ruling. Both parties have exceptions on that ruling. Mr. Sharp, I'll see you back here Thursday at 2:00, sir." The case proceeded to a bench trial. The prosecution's evidence included the testimony of an officer involved in defendant's {**42 NY3d at 373} arrest, who stated that he observed defendant holding what appeared to be a handgun in the area where the police recovered the weapon. The prosecution also presented surveillance footage that they argued showed defendant carrying and hiding the handgun. Defense counsel referred to this footage to discredit the officer, asserting that his testimony was inconsistent with the video images and, more generally, to dispute that defendant possessed the weapon in question. The trial court found defendant guilty on both counts and sentenced him to a term of imprisonment and postrelease supervision. The Appellate Division affirmed with one Justice dissenting (214 AD3d 1428 [4th Dept 2023]). The sole issue dividing the Court was defendant's claim that he was denied his right to be present during consideration of the prosecution's Sandoval application. The majority concluded that defendant had not been denied this right. The dissent concluded that defendant, although present for the later Sandoval proceeding, was denied an opportunity to meaningfully participate ( see id. at 1429 [Curran, J., dissenting]). The dissenting Justice granted defendant leave to appeal. Defendant argues that the court violated his right to be present during a material stage of his prosecution by failing to provide him the opportunity for meaningful participation at the in-chambers Sandoval hearing. The prosecution concedes that the defendant was not present for the in-chambers conference but responds, first, that the conference was not a Sandoval hearing at which defendant had a right to be present because the court rendered no decisions and, second, that the court cured any error by conducting a de novo hearing in defendant's presence. [*3] Criminal Procedure Law § 260.20 requires that "[a] defendant must be personally present during the trial of an indictment." This section confers upon a defendant the right to be present at proceedings "where [the] defendant has something valuable to contribute" ( People v Morales , 80 NY2d 450, 456 [1992]), including "the substantive portion of [a] Sandoval hearing" concerning the defendant's prior convictions ( People v Favor , 82 NY2d 254, 265 [1993]; see Dokes , 79 NY2d at 662). As the Court explained in Dokes : "the potential for meaningful participation by the defendant during the determination of the merits of a Sandoval motion is apparent. For example, the {**42 NY3d at 374} defendant is in the best position to point out errors in [their criminal record], to controvert assertions by the prosecutor with respect to uncharged acts and to provide counsel with details about the underlying facts of both charged and uncharged acts. In short, the defendant's presence will help to ensure that the court's determination will not be predicated on the prosecutor's 'unrebutted view of the facts' " (79 NY2d at 661, quoting People v Ortega , 78 NY2d 1101, 1103 [1991]). "[P]rejudice is inherent when a defendant is deprived of the opportunity for meaningful participation" on a Sandoval application ( Favor , 82 NY2d at 267). Contrary to the prosecution's assertion, defendant had a right to be present at the initial, in-chambers conference on the prosecution's application. We confronted the same issue in People v Monclavo (87 NY2d 1029 [1996]). There, the trial court conducted "a preliminary informal Sandoval conference" without defendant, during which the court indicated how it would rule on the prosecution's application ( id. at 1030 [internal quotation marks omitted]). Later, in the defendant's presence, the court reiterated its decision ( see id. at 1031). We explained that even if the court only "formally" announced its decision in the subsequent proceeding, it nonetheless had erred, because "the facts surrounding defendant's extensive felony and misdemeanor history were not discussed at that time" ( id. at 1030-1031 [internal quotation marks omitted]). Here, counsel's argumentation and discussion of the facts underlying the defendant's prior convictions occurred only in chambers and outside defendant's presence. It is precisely a defendant's knowledge of those facts that underlies the right to be present for a Sandoval hearing ( see Dokes , 79 NY2d at 661; id. at 660 ["In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position"]). Defendant's absence from the in-chambers conference therefore violated that right. Where a court has violated a defendant's right to attend in-person, the court may, nevertheless, provide "the opportunity for meaningful participation" in a subsequent proceeding ( Favor , 82 NY2d at 267). Here, however, the subsequent in-court proceeding did not cure the violation. {**42 NY3d at 375} As a preliminary matter, we reject the prosecution's suggestion that defendant's mere awareness in advance that the prosecution had filed a Sandoval application is the equivalent of an opportunity to participate. Notice is a precondition to the effective exercise of the right to participate but is no substitute for the right itself, which requires a defendant's physical presence at a time when they can "point out [factual] errors" in the record, "controvert assertions by the prosecutor," and "provide counsel with details about the underlying facts" ( Dokes , 79 NY2d at 661). Nor did defense counsel's presence or comments in court satisfy CPL 260.20's mandate. The right to be present during the trial belongs to the defendant personally, not to defense counsel. Here, the court asked defense counsel if defense counsel "want[ed] to be heard," and counsel responded that he would rely on the in-chambers discussion. The court did not, however, ask defendant if he wished to be heard. Defendants generally are not permitted to speak directly to the court unless so instructed, but rather must communicate through counsel. Nor did the court meaningfully explain to defendant the nature of the proceeding. Further, the prosecution concedes that the court's statement to counsel alone could not have cured an earlier violation of defendant's rights. Under these circumstances, defense counsel did not bind defendant merely by declining to present new arguments, and defendant's silence, without more, cannot be construed as the knowing and intelligent waiver of defendant's right to participate ( see People v Smith , 82 NY2d 254, 268 [1993] ["In view of the significant potential for meaningful [*4] participation by the defendant, there would seem to be little sound reason, short of an affirmative waiver, for excluding the defendant from any aspect, informal or formal, of the Sandoval proceeding"]). Finally, the court's recitation of its Sandoval rulings in defendant's presence could not cure its earlier error. The court did not entertain argument on the Sandoval motion, did not articulate the arguments that had been made or the reasoning for its various decisions, referred to defendant's prior convictions by number only (as enumerated in the prosecution's application), and did not invite any participation from the defendant. This is even less than what occurred in Monclavo , where this Court held that the trial court's "repetition or recitation in the defendant's presence of what ha[d] already been determined in his absence" was insufficient to cure the earlier {**42 NY3d at 376} error (87 NY2d at 1031). A defendant has a right to hear the arguments and facts relevant to the determination of the Sandoval motion in order to meaningfully participate. The remedy for a violation of this right is reversal and remittal for a new trial ( see Dokes , 79 NY2d at 662). As to defendant's remaining claims, given that defendant is entitled to a new trial, we have no occasion to address defendant's claim that he was denied effective appellate review due to the loss of certain trial exhibits. In any event, we note that the prosecution has informed us, and defendant does not dispute, that the exhibits have been located and turned over to appellate defense counsel. Defendant's other claim, that his firearm convictions violate his Second Amendment rights as recognized by the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]), was raised for the first time before the Appellate Division and is therefore unpreserved ( see People v David , 41 NY3d 90 , 96 [2023]; People v Cabrera , 41 NY3d 35 , 46 [2023]). Accordingly, the order of the Appellate Division should be reversed and a new trial ordered. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman and Halligan concur. Order reversed and a new trial ordered.

[Assistant]
Reversed and new trial ordered "The trial court held a conference in
defendant's absence on the prosecution's motion to cross-examine him on
his prior criminal conduct, in violation of his right to be present (see CPL
260.20; People v Dokes, 79 NY2d 656, 662 [1992]). The court held a
subsequent hearing on the motion in defendant's presence. However, the
court did not hear arguments on the merits, did not confirm defendant's
understanding of the underlying facts or the merits of the application, and
merely announced its decision. Thus, the subsequent proceeding did not
provide for defendant's meaningful participation in the determination of
the merits of the motion and did not cure the earlier violation.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Defendant's absence from Sandoval hearing requires reversal. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Anderson 2024 NY Slip Op 04042 [229 AD3d 1384] July 26, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Jeffrey Anderson, Appellant. Julie Cianca, Public Defender, Rochester, Banasiak Law Office, PLLC (Piotr Banasiak of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), for respondent. Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), rendered February 25, 2019. The appeal was held by this Court by order entered June 30, 2023, decision was reserved and the matter was remitted to Monroe County Court for further proceedings (217 AD3d 1560 [4th Dept 2023]). The proceedings were held and completed (Douglas A. Randall, J.). It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and course of sexual conduct against a child in the second degree (§ 130.80 [1] [a]). We previously held this case, reserved decision, and remitted the matter to County Court for a reconstruction hearing on whether defendant was present during the Sandoval conference ( People v Anderson , 217 AD3d 1560 [4th Dept 2023]). Upon remittal, the court held a reconstruction hearing and determined that the Sandoval proceedings had been held outside of defendant's presence. Where a defendant is denied the right to be present during a Sandoval hearing, reversal of defendant's conviction is required ( see People v Dokes , 79 NY2d 656, 658 [1992]; see also CPL 260.20), unless "defendant's presence at the hearing would have been superfluous" ( People v Cooper , 159 AD3d 1446 , 1447 [4th Dept 2018] [internal quotation marks omitted]; see generally People v Odiat , 82 NY2d 872, 874 [1993]). Here, it cannot be said that defendant's presence at the hearing would have been superfluous because the court's ruling was a compromise and thus, it was not "wholly favorable to defendant" ( Cooper , 159 AD3d at 1447). Defendant additionally contends that the conviction of course of sexual conduct against a child in the first degree is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we conclude that the conviction of course of sexual conduct against a child in the first degree is supported by legally sufficient evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see Bleakley , 69 NY2d at 495). Present—Smith, J.P., Bannister, Montour and Greenwood, JJ.

[Assistant]
Where a defendant is denied the right to be present during a Sandoval
hearing, reversal of defendant's conviction is required unless "defendant's
presence at the hearing would have been superfluous" Here, it cannot be
said that defendant's presence at the hearing would have been superfluous
because the court's ruling was a compromise and thus, it was not "wholly
favorable to defendant.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Conduct of Trial, Includes Jury Charge, Pro Se Requests & Judge's Response to Deliberating Jurors and the subtopic of Requests to proceed pro se. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Boone 2024 NY Slip Op 06667 [233 AD3d 623] December 31, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Michael Boone, Appellant. Feldman & Feldman, Manhasset (Steven A. Feldman of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Rachel Bond of counsel), for respondent. Judgment, Supreme Court, New York County (Charles Solomon, J., at pretrial proceedings; Laura Ward, J., at suppression hearing; Robert Mandelbaum, J., at trial and sentencing), rendered November 10, 2016, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the third degree, and sentencing him to a term of 20 years with five years of postrelease supervision on the first-degree robbery count, to run concurrently to a term of 2 1/3 to 7 years on the third-degree weapon possession count, for an aggregate term of 20 years, followed by five years of postrelease supervision, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the first-degree robbery count to 16 years, to run concurrently with the sentence on the third-degree weapon possession count, for a new aggregate term of 16 years followed by five years of postrelease supervision, and otherwise affirmed. Defendant's legal insufficiency claim is unpreserved, and we decline to consider it in the interest of justice. As an alternative holding, we find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]; see also People v Baque , — NY3d &mdash, 2024 NY Slip Op 05244 [2024]). Initially, there is no basis to disturb the jury's credibility determinations. Three witnesses testified consistently about how defendant displayed a knife, placed it up to the face of one victim, and demanded that all three give him money. There was ample basis for the jury to conclude that defendant's display of the knife constituted use or threatened use of a dangerous instrument, even if the blade of the knife itself was not actually pointed directly at any of the victims' faces ( see People v Samuel , 223 AD3d 479 , 480 [1st Dept 2024], lv denied 41 NY3d 985 [2024]; People v Rivera , 272 AD2d 140, 140 [1st Dept 2000], lv denied 95 NY2d 857 [2000]; People v Thomas , 161 AD2d 543, 543 [1st Dept 1990], lv denied 76 NY2d 866 [1990]). Defendant was not deprived of his constitutional right to self-representation. We find that he did not make a clear and unequivocal request to represent himself ( see People v LaValle , 3 NY3d 88 , 106 [2004]), and the references to self-representation were made in the context of, or overshadowed by, other complaints ( see People v Payton , 45 NY2d 300, 314 [1978], revd on other grounds 445 US 573 [1980]; People v Cornelius , 132 AD3d 495 , 495-496 [1st Dept 2015], lv denied 26 NY3d 1087 [2015]). In any event, the record establishes that defendant abandoned his request to represent himself ( see People v Berrian , 154 AD3d 486 , 487 [1st Dept 2017], lv denied 30 NY3d 1103 [2018]; People v Little , 151 AD3d 531 , 531-532 [1st Dept 2017], lv denied 30 NY3d 951 [2017]). After mentioning proceeding pro se, defendant agreed with the court to attempt to resolve his disputes with counsel before further [*2] addressing his representation at a later time. He then acquiesced in the appointment of new counsel, asked the court to assign him a specific attorney of his choosing, and attempted to retain his own attorney. Defendant was represented by counsel for over two years before he then made another untimely request to represent himself. The court properly determined that the search of defendant's duffle bag at the scene was justified as a search incident to a lawful arrest, and that the search was supported by exigent circumstances ( see People v Jimenez , 22 NY3d 717 [2014]). We perceive no basis to disturb the court's credibility determinations following the hearing. The hearing evidence established that the police had received a report that defendant was armed with a knife, and the bag was in his grabbable area at the time of his arrest ( id. at 721; People v Smith , 59 NY2d 454, 458 [1983]). The search took place immediately after his arrest, was conducted before the police obtained exclusive control of the bag, and before there was no longer a possibility that defendant would gain access to it to seize a weapon or destroy property ( see People v Wylie , 244 AD2d 247, 250 [1st Dept 1997], lv denied 91 NY2d 946 [1998]; cf. People v Morales , 126 AD3d 43 , 46 [1st Dept 2015]). In any event, we find that any error in admitting the items recovered from the bag was harmless in light of the other overwhelming evidence of defendant's guilt ( see generally People v Crimmins , 36 NY2d 230, 241-242 [1975]). Defendant's claim that the court violated his constitutional rights by limiting his ability to elicit hearsay testimony from one of the testifying officers is unpreserved ( see People v Lopez , 122 AD3d 511 , 511 [1st Dept 2014], lv denied 24 NY3d 1220 [2015]), and we decline to consider this claim in the interest of justice. As an alternative holding, we find that defendant did not make an adequate showing to warrant admission of this hearsay evidence ( see People v Burns , 6 NY3d 793 , 795 [2006]; People v Davidson , 121 AD3d 612 , 613 [1st Dept 2014], lv denied 25 NY3d 988 [2015]). Defendant's claim that hearsay exceptions apply is also unpreserved, and we decline to consider this claim in the interest of justice as well. In any event, we find that defendant did not lay a proper foundation to establish that the statement was admissible as either an excited utterance ( see generally People v Carroll , 95 NY2d 375, 385 [2000]) or as a present sense impression ( see generally People v Cantave , 21 NY3d 374 , 382 [2013]). The court properly denied defendant's request to dismiss one juror who was observed to be closing his eyes. The juror assured the court he was not sleeping and was paying attention to the evidence, even though he sometimes closed his eyes while he listened ( see People v Herring , 19 NY3d 1094 , 1095-1096 [2012]; People v Thomas , 129 AD3d 1110 , 1110 [2d Dept 2015], lv denied 26 NY3d 972 [2015]; People v Jorge , 23 AD3d 254 , 254 [1st Dept 2005], lv denied 6 NY3d [*3] 814 [2006]). We find that no further inquiry was required, and we perceive no basis in the record to disturb the court's finding that the juror was not sleeping. The court properly denied defendant's request to submit robbery in the third degree as a lesser included offense, since there was no reasonable view of the evidence that would support a finding that defendant committed only the lesser offense but not the greater ( see generally People v Glover , 57 NY2d 61, 63 [1982]). More specifically, there was no reasonable view of the evidence that defendant used physical force in the commission of this robbery other than through the use or threatened use of a knife ( see People v Pearson , 67 AD3d 600 , 600-601 [1st Dept 2009], lv denied 14 NY3d 804 [2010]; see People v Rivera , 262 AD2d 17, 17 [1st Dept 1999], lv denied 93 NY2d 1025 [1999]). Defendant's constitutional arguments concerning his sentence are unpreserved. Nonetheless, we conclude that the sentence should be reduced in the interest of justice to the extent indicated. We have considered defendant's remaining arguments, including the various arguments raised in defendant's pro se submissions, and find them unavailing. Concur—Renwick, P.J., González, Rodriguez, Higgitt, Rosado, JJ.

[Assistant]
Defendant not wrongly denied the right to represent himself. Request was
not "clear and unequivocal,
" and the references to self-representation
"were made in the context of, or overshadowed by, other complaints.... In
any event, the record establishes that defendant abandoned his request to
represent himself....
"