Opinion
May 7, 1999
Appeal from Judgment of Supreme Court, Monroe County, Siragusa, J. — Murder, 2nd Degree.
Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25). Defendant failed to preserve for our review his contention that the verdict is not supported by legally sufficient evidence ( see, CPL 470.05; People v. Gray, 86 N.Y.2d 10, 19). In any event, the evidence, viewed in the light most favorable to the People ( See, People v. Contes, 60 N.Y.2d 620, 621), "could lead a rational trier of fact to conclude that the elements of the crime have been proven beyond a reasonable doubt" ( People v. Cabey, 85 N.Y.2d 417, 421; see, People v. Williams, 84 N.Y.2d 925). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The credibility of the witnesses is best determined by the trier of fact ( see, People v. Murphy, 210 A.D.2d 886, lv denied 85 N.Y.2d 865).
The two colloquies between Supreme Court and the jury did not violate the notice provision of CPL 310.30 ( see generally, People v. O'Rama, 78 N.Y.2d 270, 276). The first colloquy involved "mere clarifying inquiries" by the court ( People v. DeRosario, 81 N.Y.2d 801, 803; see, People v. Lykes, 81 N.Y.2d 767, 769-770). During the second colloquy, the court restated an element of the crime in response to a juror's question. That question concerned an issue previously raised in a written jury request to the court, which was reviewed by defense counsel ( see, People v. Maxwell, 235 A.D.2d 229, 230, lv denied 91 N.Y.2d 894; People v. Perez, 182 A.D.2d 355, lv denied 79 N.Y.2d 1052).
Defendant was not denied a fair trial by prosecutorial misconduct on summation. Defendant agreed to the curative instructions given by the court with respect to two of the alleged instances of misconduct and did not seek further relief, thus, the curative instruction must be deemed to have corrected the alleged errors to defendant's satisfaction ( see, People v. Heide, 84 N.Y.2d 943, 944; People v. Balkum, 233 A.D.2d 929, 930, lv denied 89 N.Y.2d 939). The remaining alleged instances of misconduct were either fair comment on the evidence or fair response to defense counsel's summation ( see, People v. Halm, 81 N.Y.2d 819, 820; People v. Dunbar, 213 A.D.2d 1000, lv denied 85 N.Y.2d 972).
We reject the contention of defendant that the two-month delay between the questioning by the police and his arrest, during which time he pleaded guilty to an unrelated crime, violated his right to counsel. Defendant has no constitutional right to be arrested ( see, Hoffa v. United States, 385 U.S. 293, 310; People v. Middleton, 54 N.Y.2d 474, 481; People v. Dyson, 221 A.D.2d 1004, lv denied 87 N.Y.2d 1019). We further reject the contention of defendant that he was denied his right to be present at a material stage of the trial. At defendant's arraignment, the prosecutor and the court briefly discussed a possible conflict of interest involving prosecution witnesses and defense counsel. Because the issue was legal in nature, defendant's presence was not required ( see, People v. Jones, 213 A.D.2d 250, lv denied 86 N.Y.2d 796; People v. Medina, 208 A.D.2d 974, lv denied 84 N.Y.2d 1035).
The court did not err in failing, sua sponte, to dismiss a potential juror. The colloquy between the court and the juror did not reveal that the juror had "a state of mind that [was] likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 270.20 [b]). Defendant was not denied effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147). Finally, the sentence is neither unduly harsh nor severe.