People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

238 A.D.2d 127, 655 N.Y.S.2d 37, 1997 N.Y. App. Div. LEXIS 2950

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

DecidedApril 1, 1997

StatusPublished

Cited by2 cases

This text of 238 A.D.2d 127 (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, 238 A.D.2d 127, 655 N.Y.S.2d 37, 1997 N.Y. App. Div. LEXIS 2950 (N.Y. Ct. App. 1997).

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Opinion

—Judgment, Supreme [128]*128Court, New York County (Charles Tejada, J.), rendered August 11, 1994, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and sentencing him to concurrent terms of 81/s to 25 years, unanimously affirmed.

The court properly permitted the court clerk, with the consent of the parties, to ask the jury to submit a note indicating whether or not they still wished a response to their inquiry sent immediately prior to a note indicating that they had reached a verdict, since the clerk’s action was purely ministerial (see, People v Bonaparte, 78 NY2d 26). In this connection, defendant’s right to be present at a material stage of his trial was not implicated because no substantive information about the case or legal instruction was involved (People v Harris, 76 NY2d 810, 812). There is no merit to defendant’s current suggestion that the court should have given further instruction, sua sponte. Defendant’s claim that the jury’s note evidenced improper deliberation is based entirely on speculation. We note that defendant was properly cross-examined about aspects of his background affecting his credibility.

The existing record (see, People v Love, 57 NY2d 998) indicates that defendant received effective assistance of counsel (People v Baldi, 54 NY2d 137).

We perceive no abuse of discretion in sentencing. Concur— Milonas, J. P., Wallach, Nardelli and Tom, JJ.

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—Judgment, Supreme [128]*128Court, New York County (Charles Tejada, J.), rendered August 11, 1994, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and sentencing him to concurrent terms of 81/s to 25 years, unanimously affirmed.

The court properly permitted the court clerk, with the consent of the parties, to ask the jury to submit a note indicating whether or not they still wished a response to their inquiry sent immediately prior to a note indicating that they had reached a verdict, since the clerk’s action was purely ministerial (see, People v Bonaparte, 78 NY2d 26). In this connection, defendant’s right to be present at a material stage of his trial was not implicated because no substantive information about the case or legal instruction was involved (People v Harris, 76 NY2d 810, 812). There is no merit to defendant’s current suggestion that the court should have given further instruction, sua sponte. Defendant’s claim that the jury’s note evidenced improper deliberation is based entirely on speculation. We note that defendant was properly cross-examined about aspects of his background affecting his credibility.

The existing record (see, People v Love, 57 NY2d 998) indicates that defendant received effective assistance of counsel (People v Baldi, 54 NY2d 137).

We perceive no abuse of discretion in sentencing. Concur— Milonas, J. P., Wallach, Nardelli and Tom, JJ.

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Bluebook (online)

238 A.D.2d 127, 655 N.Y.S.2d 37, 1997 N.Y. App. Div. LEXIS 2950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-1997.

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