People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

204 A.D.2d 748, 612 N.Y.S.2d 452

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

DecidedMay 31, 1994

StatusPublished

Cited by1 cases

This text of 204 A.D.2d 748 (People v. Smith) 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. Smith, 204 A.D.2d 748, 612 N.Y.S.2d 452 (N.Y. Ct. App. 1994).

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Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered January 7, 1992, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the [749]*749prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

In addition, the defendant’s claim that he was denied his constitutional and statutory right to be present at a material stage of the trial is without merit. In response to a note from the jurors, the court directed that they should continue deliberating until about 6:00 p.m., and that they should not worry about meals and accommodations for the night. The defendant was not present at this time. In these circumstances, however, his presence was not required. The court’s statement did not constitute a legal instruction, such as an Allen charge, which would have required the defendant’s presence (cf., People v Torres, 72 NY2d 1007; People v Bonilla, 186 AD2d 748). Thompson, J. P., Rosenblatt, Pizzuto and Florio, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered January 7, 1992, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the [749]*749prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

In addition, the defendant’s claim that he was denied his constitutional and statutory right to be present at a material stage of the trial is without merit. In response to a note from the jurors, the court directed that they should continue deliberating until about 6:00 p.m., and that they should not worry about meals and accommodations for the night. The defendant was not present at this time. In these circumstances, however, his presence was not required. The court’s statement did not constitute a legal instruction, such as an Allen charge, which would have required the defendant’s presence (cf., People v Torres, 72 NY2d 1007; People v Bonilla, 186 AD2d 748). Thompson, J. P., Rosenblatt, Pizzuto and Florio, JJ., concur.

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Bluebook (online)

204 A.D.2d 748, 612 N.Y.S.2d 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-1994.

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