People v. McGrew

Appellate Division of the Supreme Court of New York

People v. McGrew

198 A.D.2d 6, 604 N.Y.S.2d 724, 1993 N.Y. App. Div. LEXIS 10259

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 1993

StatusPublished

Cited by3 cases

This text of 198 A.D.2d 6 (People v. McGrew) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McGrew, 198 A.D.2d 6, 604 N.Y.S.2d 724, 1993 N.Y. App. Div. LEXIS 10259 (N.Y. Ct. App. 1993).

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Opinion

—Judgment, Supreme Court, Bronx County (William H. Wallace, III, J.), rendered March 1, 1991, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

There is no merit to defendant’s contention that the court’s uncontroverted statement, apparently based on observation of defendant’s conduct, that defendant had gone to the bathroom and decided not to return was not a sufficient recitation of the facts and reasons it relied upon in determining that defendant’s absence during jury deliberations was voluntary (see, People v Brooks, 75 NY2d 898, 899). Moreover, defense counsel never objected to the finding that the absence was voluntary, stating only that it was out of character for the defendant, and, we note, acknowledged at sentencing that defendant had "absented himself during [the jury] deliberations”.

Defendant’s other contention, that the trial court erred in failing to inform the defense of a note from a juror and in taking the verdict without responding adequately thereto, is not preserved for appellate review as a matter of law, and we decline to review it in the interest of justice. If we were to review, we would find that the defendant’s contention is contradicted by a record which indicates that the note was the topic of a bench conference between the court and the attorneys; that, in any event, the court effectively notified defense counsel of the note and its contents when it spoke to the jury about the note after the verdict was returned; and that the court responded to the note in a meaningful manner by ascertaining that the juror’s misgivings expressed in the note [7]*7did not affect her ability to continue deliberations. Concur— Murphy, P. J., Sullivan, Kupferman, Asch and Kassal, JJ.

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—Judgment, Supreme Court, Bronx County (William H. Wallace, III, J.), rendered March 1, 1991, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

There is no merit to defendant’s contention that the court’s uncontroverted statement, apparently based on observation of defendant’s conduct, that defendant had gone to the bathroom and decided not to return was not a sufficient recitation of the facts and reasons it relied upon in determining that defendant’s absence during jury deliberations was voluntary (see, People v Brooks, 75 NY2d 898, 899). Moreover, defense counsel never objected to the finding that the absence was voluntary, stating only that it was out of character for the defendant, and, we note, acknowledged at sentencing that defendant had "absented himself during [the jury] deliberations”.

Defendant’s other contention, that the trial court erred in failing to inform the defense of a note from a juror and in taking the verdict without responding adequately thereto, is not preserved for appellate review as a matter of law, and we decline to review it in the interest of justice. If we were to review, we would find that the defendant’s contention is contradicted by a record which indicates that the note was the topic of a bench conference between the court and the attorneys; that, in any event, the court effectively notified defense counsel of the note and its contents when it spoke to the jury about the note after the verdict was returned; and that the court responded to the note in a meaningful manner by ascertaining that the juror’s misgivings expressed in the note [7]*7did not affect her ability to continue deliberations. Concur— Murphy, P. J., Sullivan, Kupferman, Asch and Kassal, JJ.

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Bluebook (online)

198 A.D.2d 6, 604 N.Y.S.2d 724, 1993 N.Y. App. Div. LEXIS 10259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcgrew-nyappdiv-1993.

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