People v. McKnight

284 A.D.2d 955, 728 N.Y.S.2d 596, 2001 N.Y. App. Div. LEXIS 5925

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of robbery in the third degree (Penal Law § 160.05), petit larceny (Penal Law § 155.25), and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). Defendant contends that his right to counsel was violated because his attorney was not present in the Grand Jury room when he executed his waiver of immunity (see, People v Kirk, 275 AD2d 983, lv denied 96 NY2d 736). We disagree. The record establishes that defendant appeared at the Grand Jury proceedings accompanied by his attorney, and defendant acknowledged that he understood that his attorney could be present with him in the Grand Jury room if he so desired. Defendant was afforded an adequate opportunity to confer with his attorney, who was present immediately outside the Grand Jury room, before signing the waiver of immunity and testifying before the Grand Jury (see, People v Williams, 277 AD2d 508, 509-510; People v Caruso, 125 AD2d 403). Under the circumstances of this case, we conclude that defendant’s right to counsel was not violated. We further conclude that the waiver of immunity complied with the mandates of GPL 190.45 (2) (see, People v Stewart, 92 NY2d 965, 966-967; People v Hanley, 227 AD2d 144, 144-145; People v Heidelmark, 214 AD2d 767, 769, lv denied 85 NY2d 973; People v Cole, 196 AD2d 634, 636).

Contrary to the contention of defendant, County Court properly concluded that defendant’s statements were voluntary and thus admissible at trial (see, People v Johnson, 265 AD2d 930, 930-931, lv denied 94 NY2d 921). Finally, the court did not abuse its discretion in excusing four prospective jurors sua sponte without voir dire by counsel; the responses of those prospective jurors to questioning by the court revealed that they could not be fair and impartial and therefore were unqualified to serve (see, People v Gayle, 238 AD2d 133, 133-134, lv denied 90 NY2d 893; People v Drumgoole, 234 AD2d 888, 889, lv denied 89 NY2d 1011; People v Mitchell, 224 AD2d 316, lv denied 88 NY2d 968). (Appeal from Judgment of Jefferson County Court, Fahey, J. — Robbery, 3rd Degree.) Present— Pigott, Jr., P. J., Pine, Wisner, Kehoe and Burns, JJ.