Opinion
March 16, 1995
Appeal from the Supreme Court, New York County (Angela Mazzarelli, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, defendant's guilt of the crimes charged was proven beyond a reasonable doubt (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), and the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490).
As defendant failed to provide a record that supports his claim that a Sandoval hearing was conducted in his absence, there is no basis to review his claim that his right to be present at that material stage of his trial was violated (People v. Bharat, 204 A.D.2d 169, lv denied 84 N.Y.2d 822). In any event, a fair reading of the record indicates that defendant was, indeed, present.
The court conducted appropriate inquiry of a juror to ascertain whether he was asleep during portions of the trial, accepting the juror's assurances that the suspect behavior was the result of an eye infection and a loud cough. As defense counsel declined the opportunity to inquire further, there is no basis to conclude that the juror in question should have been discharged as grossly unqualified to continue service (see, People v. Buford, 69 N.Y.2d 290, 299).
The record establishes that defendant was not present during initial discussion of the discovery of contraband in an open cigarette package apparently intended for defendant by a family member or friend. However, defendant's presence was not required as the colloquy involved no evidentiary matter, nor any issue about which defendant has shown special knowledge, and to the extent the colloquy touched upon the issue of whether, on the undisputed facts, counsel faced a conflict of interest, the matter was purely legal in nature (see, People v. Morales, 80 N.Y.2d 450). Further, we note that defendant assured the court on the record that he perceived no conflict of interest between himself and his attorney and specifically approved counsel's continued representation of him in this case.
The prosecutor's summation comments regarding credibility were directly responsive to the defense summations (People v Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912). Further, the court sustained objection to the prosecutor's references to the "horrifying" nature of the crime and its effects on the victims, and instructed the jury repeatedly that sympathy was to play no role in their deliberations. It is presumed that the jury understood and followed these instructions (People v. Davis, 58 N.Y.2d 1102).
Concur — Rubin, J.P., Ross, Nardelli, Williams and Tom, JJ.