Opinion
11-22-2017
The PEOPLE, etc., respondent, v. Zenon PROKOP, appellant.
Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Joseph Z. Amsel of counsel), for respondent.
Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Joseph Z. Amsel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered February 6, 2015, convicting him of operating a motor vehicle while under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court erroneously charged the jury as to the elements of aggravated unlicensed operation of a motor vehicle in the first degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Callistro, 146 A.D.3d 795, 796, 46 N.Y.S.3d 625 ). In any event, that charge, which was consistent with the stipulation of the parties, was not erroneous (see Vehicle and Traffic Law § 511[2][a][iv] ; [3][a][i]; see also CPL 300.10[2] ; People v. Drake, 7 N.Y.3d 28, 33–34, 817 N.Y.S.2d 583, 850 N.E.2d 630 ).
The defendant also failed to preserve for appellate review his contention that he was deprived of his due process rights because of certain improper remarks made by the trial court to prospective jurors during voir dire (see CPL 470.05[2] ; People v. Mason, 132 A.D.3d 777, 779, 17 N.Y.S.3d 768 ; People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696 ). Specifically, the Supreme Court stated to prospective jurors that, if they were excused from jury service for lack of English language proficiency, they "may have to take an English course," as required by the court. Contrary to the defendant's contention, the court's misconduct did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown, 7 N.Y.3d 880, 881, 826 N.Y.S.2d 595, 860 N.E.2d 55 ; People v. Mason, 132 A.D.3d at 779, 17 N.Y.S.3d 768 ; People v. Cunningham, 119 A.D.3d at 601–602, 988 N.Y.S.2d 696 ; People v. Casanova, 62 A.D.3d 88, 91–92, 875 N.Y.S.2d 31 ; People v. McDuffie, 270 A.D.2d 362, 704 N.Y.S.2d 871 ). However, we take this opportunity to express our strong disapproval of the court's conduct in issuing these remarks. While we deem the court's remarks to be inappropriate, under the circumstances of this case, reversal is not warranted (see People v. Mason, 132 A.D.3d at 779, 17 N.Y.S.3d 768 ; People v. Bailey, 66 A.D.3d 491, 491, 889 N.Y.S.2d 1 ; People v. Daniel, 37 A.D.3d 731, 732, 830 N.Y.S.2d 319 ).
ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.