The People, Respondent,v.Ronnell Jordan, Appellant.

Brief

N.Y.February 9, 2016

Kenneth P. Thompson District Attorney DISTRICT ATTORNEY KINGS COUNTY 350 JAY STREET BROOKLYN, NY 11201-2908 (718) 250-2000 W\VW.BROOKLYNDAORG Honorable Jonathan Lippman Chief Judge of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Ronnell Jordan APL-2015-00274 December 24, 2015 Kings County Indictment Number 8020/2011 Submission pursuant to Rule 500.11 Dear Chief Judge Lippman: Defendant Ronnell Jordan appeals from an order of the Appellate Division, Second Department, dated February 11, 2015. People v. Jordan, 125 A.D.3d 787 (2d Dep't 2015), Iv. granted, N. Y. 3d (Oct. 23, 2015) (Abdus-Sa1aam, J.). That order affirmed a judgment of the Supreme Court, Kings County, entered November 29, 2012, convicting defendant, after a jury trial, of one count each of Attempted Assault in the First Degree (P. L_ §§ 110.00/120.10[1]), Criminal Possession of a Weapon in the Second Degree (P. L. § 265.03 [1] ), and Attempted Robbery in the First Degree (P.L. §§ 110.00/160.15[2]), and sentencing him to concurrent terms of imprisonment of fourteen years, followed by People v. Ronnell Jordan December 24, 2015 five years of post-release supervision, on each count (Goldberg, J., at trial and sentence). STATEMENT OF FACTS Introduction On June 7, 2011, at about 1:12 a.m., in Apartment 4-A at 1753 Sterling Place in Brooklyn, defendant Ronnell Jordan demanded Elijah Austin's money, and then shot him in the chest, four inches below his heart. The bullet cut through Austin's stomach, small intestine, pancreas, and liver, and lodged in his spine, where it remains to this day. Austin survived this gunshot wound but lives in constant pain. As a result of these events, defendant was charged, by Kings County Indictment Number 8020/2011, with one count each of Attempted Murder in the Second Degree (P.L. §§ 110.00/125.25[1]), Attempted Assault in the First Degree (P.L. §§ 110.00/120.10[1]), Attempted Robbery in the First, Second, and Third Degrees (P.L. §§ 110.00/160.15[2], 110.00/160.10[2] [a], 110.00/160.05), and Assault in the Second and Third Degrees (P.L. §§ 120.05[2]), 120.00[1]); two counts of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[1] [b], [3]); and one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01[1]). 2 People v. Ronnell Jordan December 24, 2015 Proceedings Prior to Jury Selection1 On October 25, 2012, a panel of prospective jurors assembled in the courtroom (VD 1, 4).2 The court gave the prospecti ve jurors some preliminary instructions and had them swear to answer truthfully the questions that would be posed to them (VD 4-8) The court told the prospective jurors that it assumed that they were concerned about "how long this is all going to take" (VD 9, 10). The court told the prospective jurors that it was aware that it was a sacrifice for them to come to court and fulfill their jury duty: [Y]ou are all making a sacrifice to be here. You are all giving up going to work or being with your families or doing what you would ordinarily be doing to [sic] in order to come to be with us here, and for that, we thank you because, without you, we couldn't have a trial. (VD 9). The court explained the importance of jury service:: As you know, this is the way our court system in this country handles important cases. They are not denied in-court motion to defendant 1 Following a pretrial Wade hearing, the court defendant's motion to suppress the complainant's identification of defendant but granted defendant's suppress a lineup identification. Because, on appeal, does not challenge the hearing court's ruling, the introduced at the hearing is not summarized here. evidence 2 Numbers in parentheses preceded by the letters "VD" refer to pages of the transcript of the voir dire proceedings. Unprefixed numbers in parentheses refer to pages of the trial transcript. Names refer to witnesses whose testimony is recounted. 3 People v. Ronnell Jordan December 24, 2015 decided by judges, they are decided by jurors, people from the community coming from allover the country [sic; county?], come in and make the decision, whether it's a civil case or a criminal case. As you also may know, most of the rest of the world does not have a jury system. So, if you lived in Paris or Moscow or Baghdad, or all of [S]outh America or Africa, virtually, you never have to worry about getting a jury duty notice because those countries don't have [a] jury system, they have judges deciding the cases or they might not even have judges deciding the cases. Some of these places have the military deciding their cases or the church deciding the case, and that is their judicial system. That's not how it works in this country. In this country we have citizens come in such as yourselves. You're the one to make decisions in these important cases. (VD 9-10). The court informed the prospective jurors that the trial would begin the following day, on Friday, and that the jury would likely be deliberating by the following Wednesday, October 31 (VD 10). The court acknowledged that some of the prospective jurors might have a hardship serving on the jury. For example, the court explained that a prospective juror may have a family obligation, a business commitment, or surgery scheduled (VD 11). The court informed the prospective jurors that the court could excuse them for hardship only from serving at this trial and that the court could not excuse them from jury duty, and warned them that, if any of them were to be excused from this case, then they would be sent back to the jury room, 4 People v. Ronnell Jordan December 24, 2015 where they would be eligible to be sent to another trial or sent home and told to come back another day: Now, if it's a real hardship to be here, I can excuse you. I can't excuse you from jury duty. If I excuse you because you have a hardship, you will have to speak to the clerk and either one or [sic; of?] two things will happen[.] [Y]ou will be sent back downstairs to be eligible to be sent out on another trial which is not going to be any shorter than this, okay. You are not going to find a trial shorter than this trial, or you may be sent home and told to come back another day and not even get credit for jury duty because you're saying it's a hardship for you to be here. That will be up to the clerk. I have no control over that. (VD 11-12). The court asked those with a hardship to raise a hand, and then asked those who had raised a hand to step into the center aisle, and said that the clerk would speak to them outside of the courtroom: You have a hardship? Raise your hand. Do you have a hardship, step in the center aisle, the clerk will speak to you outside. Anybody else? Don't make me squeeze it out of you. If you have a hardship, please get in the center aisle. Everyone wants to get on with their day here. If you are not sure you have a hardship, you don't have a hardship [.] [I] f you have a hardship, please raise your hand. All right, those of you who thought about raising your hand but didn't, I thank you. (VD 12-13). 5 People v. Ronnell Jordan December 24, 2015 Defendant did not object to the procedure that the court employed for discharging prospective jurors for hardship. The Trial The People's Case On the evening of June 6, 2011, ELIJAH AUSTIN met up with Bolade Aderogba, also known as "Black," and defendant Ronnell Jordan, also known as "Rah, " among others, to celebrate Aderogba's birthday (Austin: 77-80, 88-89) . Austin knew Aderogba for years and knew defendant because they lived in the same building. Aderogba and defendant were close friends (Austin: 80, 85-86, 106-10, 118-19). Before meeting with the group, Austin had been drinking cognac and smoking marijuana with his girlfriend (Austin: 77, 113-16). At about 11: 00 p.m., the group went to a party at 1753 Sterling Place in Brooklyn (Austin: 80, 82). Austin drank only water there and felt "coherent" (Austin: 83, 87-88). He began to play dice with defendant and another person, but, during the game, Austin discovered that defendant had no money to make change, so Austin stopped playing (Austin: 83-84, 89-90, 116-17, 120-22, 124-26). After leaving the dice game, Austin went to the kitchen to say his goodbyes and then ran into defendant in the hallway near 6 People v. Ronnell Jordan December 24, 2015 the exit (Austin: 91-92). Defendant grabbed Austin by the shirt and told Austin to drop his money on the floor. Defendant was holding a gun in his hand (Austin: 92). Austin asked defendant if he was serious. Defendant cocked the hammer of his gun and said "it's not a game" (Austin: 93). Austin then took bills out of his pocket and dropped them to the ground (Austin: 93-94). Austin did not think that defendant was going to shoot him, so he bent down to retrieve the bills. As Austin was bending down, defendant shot Austin in the chest from about two feet away (Austin: 94-95). After shooting Austin, defendant fled before anyone came into the hallway (Austin: 96, ll7-18). Aderogba then carried Austin downstairs to the front of the building (Austin: 96, ll8) . On June 7, 2011, at about 1:12 a.m., in response to a radio call for a male shot, Police Officer NICHOLAS ALTIZER-MERCADO arrived at 1753 Sterling Place with his partner. Officer Al tizer-Mercado found Austin lying on the floor, "clutching his stomach, and another male holding him, as if cradling him" (Altizer-Mercado: 56-57). The officers called for an ambulance and backup, and secured the crime scene. The person holding the victim was Aderogba, but he "[rJ eally didn't want to cooperate" 7 People v. Ronnell Jordan December 24, 2015 and "immediately left the crime scene" (Altizer-Mercado: 58-60, 64-65) . Al though Austin was complaining about being shot and that he was in pain, the officer got his name and then put him in an ambulance (Altizer-Mercado: 60-61). The ambulance took Austin to Brookdale Hospital (Police Officer JAMES SAMUELS: 73; Austin: 97) . At about 1: 15 a.m., Detective CARL HAYMER arrived at the scene and began to collect evidence with other detectives (Haymer: 137-39; 210). At about 1:30 a.m., at Brookdale Hospital, Dr. JONATHAN LANDON began to treat Austin. Dr. Landon performed surgery on Austin to address injuries from the gunshot wound (Landon: 214- 18) . After the surgery, Austin was under sedation and was brought to the recovery room, which was inaccessible to outside visitors because it was locked with a keypad (Landon: 217-18). Austin remained at Brookdale Hospital for two weeks. He still suffered back pain from the shooting at the time of the trial, more than a year later (Austin: 97, 210). On June 8, 2011, the day after the shooting, Detective Haymer spoke to Austin while Austin was recovering in the hospital. Austin told Haymer that he knew who shot him at 1753 Sterling Place, and that the shooter lived at 1474 Eastern 8 People v. Ronnell Jordan December 24, 2015 Parkway (Austin: 104; Haymer: 140-42, 146-48). Detective Haymer also attempted to speak to Aderogba on the telephone, but Aderogba refused to talk and hung up on him (Haymer: 144). Based on the information Austin provided, Detective RICHARD FARRINA arrested defendant on September 14, 2011 (Farrina: 33- 40; Haymer: 142-43).3 The Defense Case' Defendant called his close family friend, BOLADE ADEROGBA, to testify (Aderogba: 159, 170-71). Aderogba testified that, on June 6, 2011, he celebrated his birthday with Austin and defendant by going to apartments "around the neighborhood" (Aderogba: 161-62) . He claimed that although Austin and defendant were together at Park Place earlier in the night, defendant was not present at 1753 Sterling Place (Aderogba: 163, 165, 181-82). 3 At trial, Austin acknowledged that on February 17, 2009, he was in possession of a gravity knife; on October 6, 2009, he jumped a turnstile; and on May 21, 2011, he was riding in a car wi th a stolen license plate and had marij uana in his pocket (Austin: 75-77). , Because of severe weather, which affected both trial scheduling and witness availability, the parties agreed to permit the defense witness to testify prior to the conclusion of the People's case (30-31, 51, 158-59). 9 People v. Ronnell Jordan December 24, 2015 Aderogba also testified that he did not see who shot Austin, but that he carried Austin downstairs on his back (Aderogba: 163-64, 178, 186-87). Aderogba testified that, while downstairs, he stated that he gave the police his name, but he admi tted that he "told them nothing" (Aderogba: 164, 178-81). Aderogba claimed to have gone to Brookdale Hospital, where he sneaked past hospital personnel into the reu to visit Austin (Aderogba: 179-80). Aderogba claimed that he cooperated with the police investigation. Aderogba testified that, on June 8, 2011, he spoke to Detective Haymer on the telephone. Aderogba claimed that he told Detective Haymer that he did not see what happened, and he denied refusing to cooperate or hanging up on Detective Haymer (Aderogba: 187-89). On June 12, 2012, Aderogba come to the District Attorney's Office and spoke to Assistant District Attorney Kyle Reeves under a subpoena (Aderogba: 182). Aderogba acknowledged that when he came to the District Attorney's Office, he knew that he was there regarding the case in which defendant was charged with shooting Austin (Aderogba: 183). Aderogba testified that he told ADA Reeves that he did not see the shooter, but that he never mentioned that defendant was not at the crime scene. He 10 People v. Ronnell Jordan December 24, 2015 testified that ADA Reeves never asked him if defendant was there (Aderogba: 183-85). Aderogba denied that he attempted to convince Austin not to testify (Aderogba: 185-86). Aderogba testified that he met with defendant on four separate occasions before the trial and attended a pretrial hearing (Aderogba: 173-75). He also testified that he spoke to defendant's family about the case twice (Aderogba: 176). The People's Rebuttal Case In rebuttal, the People called Assistant District Attorney KYLE REEVES and recalled Austin to respond to Aderogba's testimony. Defendant objected to ADA Reeves's testimony, but the court ruled that testimony admissible with regard to Aderogba's allegation that ADA Reeves had not asked him if defendant was present at the crime scene: [DEFENSE COUNSEL]: My objection, Judge, is based firstly on the fact that Mr. [Aderogba] never told Kyle Reeves that Mr. Jordan was in the apartment. He was never asked and you can't ask him something that he was never asked. THE COURT: Well, that's not precisely true. You can't impeach someone this is the general rule. You can't impeach someone for failure to say something as part of a narrative account because in giving a narrative one might not be expected to give every 11 People v. Ronnell Jordan December 24, 2015 detail, but this is more than just a narrative account. He's a purported friend of the defendant. (DEFENSE COUNSEL]: And the victim. THE COURT: And the victim and knows the defendant is charged with a crime and tells the DA, I didn't see who did the shooting but doesn't add but doesn't add, but the defendant was never there, why are you charging him? Now, one might be naturally expected to say that, without being asked. On the other hand, you can argue that unless you're asked about it, you shouldn't be expected to say that. Let me finish, please. (DEFENSE COUNSEL]: I'm sorry. THE COURT: (Aderogba] said the questioning was one, two, three, very quick. Maybe it was like that. Maybe it wasn't. Mr. Reeves will be able to give us more information on that, but the jury may consider whether a witness omitted the state of facts when it would have been reasonable and logical for the witness to have stated the fact in determining whether it would have been reasonable and logical for the witness to have stated the omitted fact. You may consider whether the witness' attention was called to the matter and whether the witness was specifically asked about it. Now, the witness says he was never asked about it and maybe that's why he never said it, but on the other hand, because this was so important he might, it might have been reasonable and logical for the witness to have said it even if he wasn't asked about it. That's up to the jury. (DEFENSE COUNSEL]: Well, I'm going to continue with my objection to that, Your Honor. (201-03) . 12 People v. Ronnell Jordan December 24, 2015 On June 12, 2012, ADA Reeves met with Aderogba at the District Attorney's Office (Reeves: 226-27). They had a "comprehensi ve" conversation for five to ten minutes about what Aderogba saw and who was at the apartment. ADA Reeves asked who was in the apartment, and Aderogba replied that there were too many people in the apartment for him to remember them all, except for Austin. They also discussed defendant, but Aderogba never mentioned that defendant was not in the apartment at the time of the shooting (Reeves: 227-30). Aderogba indicated that he would not testify, and ended the interview because he said that he was uncomfortable being at the District Attorney's Office (Reeves: 227, 231). The People sought to recall Austin to testify that Aderogba offered him $10,000 not to testify (204). Defendant obj ected, arguing that this testimony "suggest [edl that the defendant somehow was involved in the bribery scheme" (207). The court ruled the testimony admissible and addressed defendant's concern with a limiting instruction: [Tlhe limiting instruction I would give is wi th the reference to the complaining witness, if he testifies that [Aderogbal offered him money not to testify and tried to persuade him not to testify. The instruction I'll give to the jury is there is no evidence, if, even if you find that this happened that this was done at the defendant's request and that the only reason 13 People v. Ronnell Jordan December 24, 2015 (206-08). I'm letting you hear the testimony is to show for your, the jurors' consideration whether or not [Aderogba] has a friendship towards the defendant that influenced the truthfulness of his testimony. I'll tell evidence that [Aderogba] was pocket because the defendant. the jury there was no the defendant was involved. doing this out of his own he's such good friends with The purpose of the testimony is to show the bias the witness has in this case towards the defendant and, therefore, is not telling the truth, ultimately when he says that the defendant was not present at the time of the shooting. The court further explained that it was up to the People "to try to convince the jury that it actually happened," while defendant "can cross-examine [Austin] about all this" (208). Austin testified that in the year between the shooting and the trial, Aderogba told him three or four times not to testify. Aderogba implored Austin not to "go into the white man's system," but to "handle it on the streets" (Austin: 233, 235- 36) . Aderogba once offered Austin $10,000 not to testify, but Austin declined (Austin: 234-35, 237-38). During Austin's testimony on rebuttal, the court gave the jury the following limiting instruction: 14 People v. Ronnell Jordan December 24, 2015 (234). Let me explain something, ladies and gentlemen. The testimony, it's up to you whether or not to creditor not, but this testimony is only limited to as to whether or not it affects your evaluation of Mr. Aderogba's testimony. There is no evidence that this offer of money or these requests not to testify were done at the request of the defendant or that the defendant had any knowledge assuming he'd ever have it that Mr. Aderogba was offered money for that, Mr. Aderogba ever offered money to the witness or Mr. Aderogba ever requested the witness not to testify. No evidence at all that the defendant knew anything about this, assuming it ever took place. It's only to evaluate, if you find it did take place, your evaluation of Mr. Aderogba's testimony and whether or not he has any bias or interest that might affect the believability of his testimony. Austin did not inform the assistant district attorney or anyone in law enforcement about the $10,000 offer not to testify until after he had initially testified (Austin: 239-40). The Verdict and the Sentence On November 8, 2012, the jury found defendant guilty of Attempted Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Attempted Robbery in the First Degree (333-35). 15 People v. Ronnell Jordan December 24, 2015 On November 29, 2012, defendant was sentenced to concurrent prisons terms of fourteen years, plus five years of post-release supervision, on each count (Sentencing transcript at 9-10). The Appeal to the Appellate Division Defendant appealed from his judgment of conviction to the Appellate Division, Second Department. Defendant claimed, insofar as is relevant here, that: (1 ) the trial court improperly allowed the clerk to dismiss prospective jurors on the basis of the jurors' claims of hardship; (2) the trial court deprived defendant of his right to a fair trial by allowing the People to impeach Aderogba with a prior omission; and (3) the trial court deprived defendant of a fair trial by allowing the People to present evidence that Aderogba had attempted to bribe Austin not to testify. By decision and order dated February 11, 2015, the Appellate Division affirmed defendant's judgment of conviction. People v. Jordan, 125 A.D.3d 787 (2d Dep't 2015). The Appellate Division held that the claim concerning the discharge of potential jurors was both unpreserved and without merit. The Appellate Division also held that Aderogba was properly impeached with his prior omission because Aderogba acknowledged at trial that he knew that he was to be interviewed by ADA 16 People v. Ronnell Jordan December 24, 2015 Reeves about the charges against defendant in this case, but nonetheless failed to tell ADA Reeves that defendant was not at the crime scene at the time of the shooting. Finally, the Appellate Division held that defendant was not deprived of a fair trial by Austin's testimony that Aderogba had attempted to bribe Austin not to testify against defendant, because the trial court gave a prompt and appropriate instruction to the jury that there was no evidence that defendant authorized the alleged bribe and that the testimony had been offered only on the issue of Aderogba's credibility. By order dated October 23, 2015, defendant was granted leave to appeal to this Court from the order of the Appellate Division. People v. Jordan, N.Y.3d (Oct. 23, 2015) (Abdus-Salaam, J.). POINT I DEFENDANT HAS FAILED TO PRESERVE FOR APPELLATE REVIEW HIS CLAIM THAT THE TRIAL COURT IMPROPERLY DELEGATED TO A CLERK THE TASK OF DETERMINING REQUESTS BY PROSPECTIVE JURORS TO BE EXCUSED FOR REASONS OF HARDSHIP, AND THAT CLAIM DOES NOT FALL WITHIN THE "MODE OF PROCEEDINGS" EXCEPTION TO THE PRESERVATION REQUIREMENT. Defendant claims that the trial court improperly delegated to a clerk the task of determining requests by prospective jurors to be excused for reasons of hardship, but defendant's 17 People v. Ronnell Jordan December 24, 2015 claim is unpreserved for appellate review, and his claim does not fall within the exception to the preservation requirement for "mode of proceedings" errors. Defendant's claim that the trial court's purported delegation involved a mode of proceedings error rests on a false premise that excusal of a prospective juror for hardship involves an essential part of a judicial proceeding, as well as on a false premise that such excusal involves an exclusively judicial function. In any event, the claim is meritless, because the record does not support defendant's assertion that the trial court delegated the task of determining whether to excuse prospective jurors for reasons of hardship. Because defendant did not object at trial to the procedure that the trial court employed for determining whether to excuse prospective jurors for hardship, defendant's claim is unpreserved for appellate review. See C.P.L. § 470.05(2); People v. Marshall, 131 A.D.3d 1074, 1076 (2d Dep't 2015) (claim that trial court discharged potential jurors based upon hardship without conducting sufficient inquiry was unpreserved for appellate review); People v. Bruce, 130 A.O.3d 938 (2d Oep't 2015) (same); People v. Valenko, 126 A. D. 3d 1020 (2d Dep't 2015) (same); People v. Rahman, 119 A.D.3d 820 (2d Oep't 2014) (same); People v. Johnson, 116 A.D.3d 883 (2d Oep't 2014) (same); People 18 People v. Ronnell Jordan December 24, 2015 v. Harris, 115 A.D.3d 761 (2d Dep't 2014) (same); People v. Miller, 112 A.D.3d 856 (2d Dep't 2013) (claim that trial court erred in excusing potential jurors based on their personal hardship was unpreserved for appellate review); People v. Casanova, 62 A.D.3d 88, 90-92 (1st Dep't 2009) (defendant failed to preserve claim that "by excusing all potential jurors who believed their schedules or other personal issues would not allow them to serve on a case of this length or of this seriousness, instead of rendering individual determinations as to juror hardship, the court abdicated its judicial function"); People v. Gonzalez, 68 A.D.3d 627 (1st Dep't 2009); see also People v. Toussaint, 40 A.D.3d 1017 (2d Dep't 2007) (claim that trial court erred in discharging prospective jurors prior to formal voir dire without conducting any inquiry concerning their ability to serve was unpreserved for appellate review). Therefore, because defendant's claim is unpreserved, that claim is beyond the review of this Court. See N.Y. Const. art. VI, § 3 (a); People v. Becoats, 17 N. Y. 3d 643, 650 (2011) ("The general rule, of course, is that this Court does not consider claims of error not preserved by appropriate objection in the court of first instance" [citations omitted]), cert. denied, 132 S. Ct. 1970 (2012); People v. Kelly,S N.Y.3d 116, 119 (2005) ("Ordinarily, preservation is essential to the exercise of this 19 People v. Ronnell Jordan December 24, 2015 Court's jurisdiction, which is limited to the review of questions of lawH [citations omittedl). Defendant argues that his prospecti ve-j uror-excusal claim is not subj ect to the preservation requirement, because, in his view, the claimed error is a "mode of proceedingsH error (Defendant's Rule 500.11 Letter, dated Dec. 14, 2015, at 15-23), but defendant's argument is meri tless. Contrary to defendant's contention, the purported error in the procedure that the court employed, prior to the commencement of the formal voir dire, to determine whether to excuse prospective jurors for hardship did not fall within the mode of proceedings exception to the preservation requirement. This Court, with a narrow exception applicable in capital cases, "is strictly a law court.H People v. Patterson, 39 N.Y.2d 288, 294 (1976) , aff'd, 432 u.s. 197 (1977) . Consequently, this Court generally may review claims of error only if they were preserved by appropriate objection in the trial court. Becoats, 17 N.Y.3d at 650; Kelly, 5 N.Y.3d at 119. However, "[tlhere is one very narrow exception to the requirement of a timely objection,H which is that "[al defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings proscribed by law. H Patterson, 39 N.Y.2d at 295. 20 People v. Ronnell Jordan December 24, 2015 The reason why no preservation is required for a claim involving a "mode of proceedings" error is because such errors "go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted." Kelly, 5 N.Y.3d at 119-20; see also People v. Agramonte, 87 N.Y.2d 765, 769-70 (1996); Patterson, 39 N.Y.2d at 295. But "[nJot every procedural misstep in a criminal case is a mode of proceedings error." Becoats, 17 N.Y.3d at 651; see also People v. Hawkins, 11 N.Y.3d 484, 492 n.2 (2008). Mode of proceeding errors are a "tightly circumscribed class," and, with respect to claims falling outside that class, this Court "ha[sJ repeatedly held that a court's failure to adhere to a statutorily or constitutionally grounded procedural protection does not relieve the defendant of the obligation to protest." Kelly, 5 N. Y. 3d at 120 (footnote omitted); see also Becoats, 17 N.Y.3d at 651; Agramonte, 87 N.Y.2d at 770; Patterson, 39 N.Y.2d at 295-96. Characterizing an error as a "mode of proceedings" error "is reserved for the most fundamental flaws." Becoats, 17 N.Y.3d at 651. Thus, this Court has found mode of proceedings errors where, for example, the trial judge delegated his or her exclusive function to a law secretary or to the attorneys (People v. Bayes, 78 N.Y.2d 546, 551 [1991]; People v. Ahmed, 66 21 People v. Ronnell Jordan December 24, 2015 N.Y.2d 307, 312 [1985]), and where there was no proof in the record that the trial court complied with its core responsibilities under C. P. L. § 310.30 (People v. Walston, 23 N.Y.3d 986, 989-90 [2014]; People v. Kisoon, 8 N.Y.3d 129 [2007]) . By contrast, for a wide variety of other claims, this Court has declined to expand the mode of proceedings exception to the preservation requirement. See, ~., People v. Nealon, 2015 N.Y. LEXIS 3547, at *1, *12-18 (Oct. 27, 2015) (trial court's procedure of failing to discuss substantive jury note with counsel outside presence of jury, but reading note into record in presence of parties, is generally error, but it is not mode of proceedings error); People v. Alcide, 21 N.Y.2d 687,694-96 (2013) (any error in court's participation in readback of testimony "is not of the mode of proceedings varietyH); People v. Alvarez, 20 N.Y.3d 75, 81 (2012) (public trial violation does not constitute mode of proceedings error); People v. Kadarko, 14 N.Y.3d 426, 429-30 (2010) (trial court's decision to delay reading entirety of jury note may have been error, but it was not mode of proceedings error); People v. Brown, 7 N.Y.3d 880 (2006) (instructing jury at voir dire on elements of charges did not constitute mode of proceedings error); People v. Casey, 95 N.Y.2d 354, 362 (2000) (claim that factual portion of a local 22 People v. Ronnell Jordan December 24, 2015 criminal court complaint contained hearsay was not mode of proceedings error); People v. Gray, 86 N.Y.2d 10, 21-22 (1995) (claim that prosecution failed to prove each element of crime charged did not involve mode of proceedings). In this case, the claim of error that defendant raises regarding the procedure that the trial court employed, prior to the commencement of the formal voir dire, to determine whether to excuse prospective jurors for hardship does not fall within the mode of proceedings exception to the preservation requirement. See Shotwell Mfg. Co. v . United States, 371 U. S. 341, 361-62 (1963) (claims that "the jury commissioner delegated his selection duties to one of his private employees; volunteers were permitted to serve on the juries; and the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population" were rejected because "a challenge to the method of selecting the petit jury panel comes too late when not made before trial"); Casanova, 62 A.D.3d at 91-92. First, in this case, the procedure for determining whether to grant excusals of prospective jurors for hardship occurred prior to the commencement of the jury-selection procedure set forth under Criminal Procedure Law § 270.15. Criminal Procedure Law § 270.10(2) provides, in relevant part, that "[aJ challenge 23 People v. Ronnell Jordan December 24, 2015 to the panel must be made before the selection of the jury commences, and, if it is not, such challenge is deemed to have been waived." That provision further states, in relevant part, that "[s)uch challenge must be made in writing setting forth the facts constituting the ground of challenge." Criminal Procedure Law § 270.15 provides, in relevant part, that "[i)f no challenge to the panel is made as prescribed by section 270.10, or if such challenge is made and disallowed, the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law." C.P.L. § 270.15 (1) (a). That statute further states that the members of the panel called by name "shall take their places in the jury box and shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action." C.P.L. § 270.15(1) (a). That statute further states, in relevant part, that the court should "briefly out lin [e) the nature of case to all the prospective jurors." C.P.L. § 270.15(1) (b). The members of the panel called by name are then examined by the court and by the parties to determine their qualifications to serve as jurors. See C.P.L. § 270.15(1) (b), (c). In this case, the procedure for determining whether to grant excusals for hardship (VD 11-13) occurred before any of 24 People v. Ronnell Jordan December 24, 2015 the members of the panel were called by name to fill the jury box (VD 22) and before the court briefly outlined the nature of the case to any of the prospective jurors (VD 16-17) . Accordingly, because the procedure for determining whether to grant excusals for hardship occurred before any of the members of the panel had been called by name to fill the jury box, and before the court had briefly outlined the nature of the case to the prospective jurors, the procedure at issue occurred before the conunencement of the formal jury selection, as defined by Criminal Procedure Law § 270.15. Defendant's claim, in essence, is that, after the court allegedly excused prospective jurors for hardship in the manner that it did, any selection of prospective jurors from the remaining panel would have been improper. Because defendant's claim relates to the composition of the remaining panel of prospective jurors as it existed prior to the formal conunencement of jury selection, defendant's claim is governed by the provisions of Criminal Procedure Law § 270.10. Because Criminal Procedure Law § 270.10(2) provides that a challenge to the panel "must be made [in writing] before the selection of the jury conunences, and, if it is not, such challenge is deemed to have been waived," and because, prior to jury selection, defendant did not object at all, much less object in writing, to 25 People v. Ronnell Jordan December 24, 2015 the jury panel that remained after the court allegedly excused prospective jurors for hardship in the manner in which it did, defendant's claim should be deemed to have been waived. Moreover, even if defendant had objected in compliance with the requirements of Criminal Procedure Law § 270.10, to prevail under that provision, defendant would have had to show "substantial prejudice" from the court's purported departure from the requirements of the Judiciary Law. See C.P.L. §270.10(1). But defendant has not shown any prej udice, much less substantial prejudice, from the court's purported departure from the requirements of the Judiciary Law. If, however, pre-jury-selection excusals for hardship are not governed by Criminal Procedure Law § 270.10, then the complete omission of any provision in the Criminal Procedure Law to govern those pre-jury-selection excusals -- which would then be governed solely by the Judiciary Law -- underscores that such excusals are not an essential part of a criminal proceeding, and thus any error in granting such excusals should not be deemed a "mode of proceedings" error. Moreover, given that the Legislature has expressly provided that a defendant's failure to challenge a jury panel under Criminal Procedure Law § 270.10 prior to jury selection results in the defendant's waiver of any claim relating to the jury panel, it is even clearer that a 26 People v. Ronnell Jordan December 24, 2015 defendant's failure to raise a jury-panel challenge not even authorized by the Criminal Procedure Law would likewise result in the defendant's waiver of any claim relating to the jury panel. Similarly, given that the Legislature has expressly provided that, for a defendant to prevail on a jury-panel challenge made in compliance with Criminal Procedure Law § 270.10, the defendant must show "substantial prejudice," it is even clearer that for a defendant to prevail on a jury-panel challenge not even authorized by the Criminal Procedure Law that the defendant would have to show substantial prej udice. See C. P.L. § 270.10 (1) . But defendant at trial failed to raise any challenge to the remaining jury panel after the court employed the procedure that it did for determining whether to grant excusals for hardship, and defendant has not shown any prejudice, much less substantial prejudice, from the court's purported departure from the requirements of the Judiciary Law. Furthermore, the Legislature has provided that, during jury selection, a party's failure to challenge a prospective juror for cause prior to the prospective juror's being sworn as a trial juror -- is deemed to be a waiver of any challenge based upon a ground known to the party prior to the juror's being sworn as a trial juror. See C.P.L. § 270.15(4). Given that the Legislature has expressly provided that a party's failure to 27 People v. Ronnell Jordan December 24, 2015 raise, under Criminal Procedure Law § 270.15, a challenge for cause during jury selection results in a waiver of the challenge, it is even clearer that defendant's failure to raise in the trial court his claim, which concerns the procedure that the court employed before jury selection, likewise resulted in defendant's waiver of that claim. In addition, this Court has held that the stage in which a trial court, prior to the commencement of formal voir dire, considers solely requests of prospective jurors to be excused for hardship is not a material stage of the proceedings. See People v. Velasco, 77 N.Y.2d 469, 473 (1991). Thus, although a defendant has a right to be present at all material stages of the criminal proceedings (see C.P.L. § 260.20; People v. Turaine, 78 N.Y.2d 871, 872 [1991]), a defendant has no right to be present during a side-bar conference at which a prospective juror seeks, prior to the formal voir dire, to be excused for hardship. See Velasco, 77 N. Y .2d at 473 (defendant's absence when prospective juror was disqualified was not error, because "the determination that a prospective juror was disqualified before voir dire was a matter for the court and defendant had no statutory or constitutional right to personally participate in the discussions leading to the court's ruling"). 28 People v. Ronnell Jordan December 24, 2015 Accordingly, because the alleged excusals for hardship in this case did not occur during a material stage of the proceedings, it follows that the procedure that the trial court used to determine whether to excuse prospective jurors did not "go to the essential validity of the process," nor was the purported error in the procedure "so fundamental that the entire trial [was] irreparably tainted." See Kelly, 5 N. Y. 3d at 119- 20; cf. People v. Antommarchi, 80 N.Y.2d 247, 250 (1992 ) (reaching unpreserved claim that defendant was improperly excluded from side-bar conferences concerning "the prospective jurors' ability to weigh evidence objectively and to hear testimony impartially," because those side-bar conferences consti tuted a material stage of the trial); People v. Sloan, 79 N.Y.2d 386,392-93 (1992) (defendant was denied right to be present for material stage of proceedings where defendant was absent during questioning that "went well beyond the matters pertaining to the jurors' general qualifications covered in Velasco and delved into attitudes and feelings concerning some of the events and witnesses involved in the very case to be heard") . Second, contrary to defendant's assertion (Defendant's Letter at 15-23), the decision to excuse a prospective juror for hardship does not involve an exclusively judicial function. A 29 People v. Ronnell Jordan December 24, 2015 judge who delegates an essential, exclusively judicial function compromises the very organization of the court and the lawful mode of proceedings. See Ahmed, 66 N.Y.2d at 310. Such error, al though unprotested, presents a question of law and therefore is reviewable by this Court. Id. But in this case, contrary to defendant's assertion, the trial judge did not delegate an essential, exclusively judicial function. Judiciary Law § 502(a) provides for a Commissioner of Jurors to be established for each county of the state, except for counties within cities having a population of one million or more, in which case "the county clerk shall exercise the duties and have the powers of the commissioner of jurors." Judiciary Law § 517(c) authorizes both the trial court and the Commissioner of Jurors to excuse a prospective juror for hardship. Accordingly, because granting excusals for hardship is not an exclusively judicial function, but rather is a function that may be performed by the Commissioner of Jurors (or, in New York City, by the County Clerk), defendant's assertion that it is "well-settled that no one but the judge may discharge jurors from serving" (Defendant's Letter at 17) is plainly incorrect. Third, a prospective juror may be excused from jury service for hardship even outside of any judicial proceeding. See Jud. 30 People v. Ronnell Jordan December 24, 2015 L. § 517 (permitting Commissioner of Jurors to excuse a prospective juror even prior to the prospective juror's assignment to any judicial proceeding) . Indeed, the Commissioner is authorized to grant an excusal to a person before that person has been summoned for jury service. See 22 N.Y.C.R.R. § 128.6-a(b) (1) ("The commissioner may, in his or her discretion, consider an application for excusal by a prospective juror before the juror has received a jury summons if the juror has returned the juror qualification questionnaire H ). And, under some circumstances, the Commissioner is authorized to grant an excusal by telephone, without requiring the prospective juror even to come to the courthouse. See Jud. L. § 517(a) (1). Consequently, because a prospective juror can be excused for hardship even prior to the prospective juror's assignment to a judicial proceeding, the excusal of a prospective juror for hardship is not part of a judicial proceeding. Defendant fails to show how excusing prospective jurors for hardship after the prospective jurors were summoned, but prior to the commencement of the formal voir dire, as occurred in this case, would constitute a material stage of the criminal judicial proceedings, when an earlier excusal for hardship patently would not be a material stage of a criminal judicial proceeding. Indeed, Judiciary Law § 517 does not prohibit the Commissioner 31 People v. Ronnell Jordan December 24, 2015 of Jurors from granting an excusal for hardship to a prospective juror who has already commenced jury duty but who has not yet been called by name to sit in the jury box to be examined pursuant to Criminal Procedure Law § 270.15. Thus, there is no reason to conclude that the determination of whether to excuse a prospective juror for hardship is a material part of a judicial proceeding, merely because the excusal was granted just before voir dire, and not earlier. Fourth, Judiciary Law § 502(e) provides that the Commissioner of Jurors may appoint "deputies or assistants to perform any of his duties as required by law." Accordingly, pursuant to that provision, because the Commissioner of Jurors has the authority to grant prospective-juror excusals (see Jud. L. § 517 [c]), the Commissioner also has statutory authority to delegate the task of granting prospecti ve-j uror excusals. If the Commissioner of Jurors can delegate the authority to determine whether to grant an excusal for hardship, then surely any error by a judge in delegating that same authority is not an error that "go res] to the essential validity of the process" (see Kelly, 5 N. Y. 3d at 119-20), and therefore such delegation by a judge, even if error, does not constitute a mode of proceedings error. 32 People v. Ronnell Jordan December 24, 2015 Fifth, irrespective of whether an error regarding the determination of whether to excuse a prospective juror for hardship may constitute a mode of proceedings error, no such error occurred in this case, because the record shows that the trial court's inquiry into the hardships of the prospective jurors in this case was adequate. As a preliminary matter, decisions about whether to excuse jurors during pre-voir-dire screening are wi thin the trial court's discretion. See Sloan, 79 N.Y.2d at 392. In this case, the trial court properly exercised its discretion in allowing the possibility of discharging the prospective jurors who believed that they would suffer personal hardship by serving. The trial court did not say summarily that it would excuse any prospective juror who believed that serving on the jury at this trial would cause a personal hardship. Rather, the court informed the prospective jurors about the expected length of the trial and cautioned them that excusal from this case would not mean that any of them would be entirely excused from jury service (VD 10-12). The court informed the prospective jurors that, instead, a prospective juror excused from this case might then be sent back to the jury room, where the prospective juror would be eligible to be sent to another trial or sent home and told to come back another day (VD 11-12). 33 People v. Ronnell Jordan December 24, 2015 Additionally, before asking the prospective jurors whether any of them had a hardship, the court told them that it was aware that their jury service was a "sacrifice" because they were giving up "going to work or being with [their] families or doing what they would ordinarily be doing" (VD. 9). But the court explained to the prospective jurors the importance of jury service, noting that, in our country, cases are not decided by judges, the military, or the church, and instead are decided by people from the community (VD 9-10). Accordingly, under these circumstances, the court's statements were adequate to ensure that only those prospective jurors who actually had a personal hardship would be excused. Thus, the court properly exercised its discretion in the manner in which the court determined whether prospective jurors might be excused for hardship. See People v. Marshall, 131 A.D.3d 1074, 1076 (2d Dep't 2014); cf. People v. Williams, 16 N.Y.3d 480,485-86 (2011) (because defendant's claim was meri tless, no "mode of proceedings" error occurred); People v. Rosen, 96 N. Y. 2d 329, 334-35 (2001) (same). This Court's holding in People v. Harris, 98 N. Y . 2d 452 (2002), is instructive. In Harris, the defendant claimed that because the trial court instructed the prospective jurors on the standards for juror qualification, the court thereby enabled potential jurors to manipulate the outcome of the jury selection 34 People v. Ronnell Jordan December 24, 2015 process, and that, therefore, the selection process was tainted. Id. at 481. This Court rejected the defendant's claim, holding: "We presume that jurors follow their oaths, answer the questions put to them truthfully and abide by the court's instructions." Id. Sixth, irrespective of whether the record shows that the trial court's inquiry into the asserted hardship of the prospecti ve jurors in this case was proper, the record shows that the court's inquiry into the hardship of the prospective jurors was sufficient to subject to the preservation requirement any claim of error in the manner in which the court had conducted that inquiry. Because the court warned the prospective jurors that they would have to speak outside of the courtroom to the clerk about their purported hardship, because the court warned them about what would happen if they were excused, because the court impressed upon them the importance of jury service, and because the court then asked them to raise their hands if, despite all that, any of them thought that they had a hardship, the court's procedure, even if erroneous, did not "go to the essential validity of the process," nor was the purported error in the procedure "so fundamental that the entire trial [was] irreparably tainted." See Kelly, 5 N.Y.3d at 119- 20; cf. Nealon, 2015 N. Y. LEXIS 3547, at *1, *12-18 (failing to 35 People v. Ronnell Jordan December 24, 2015 discuss substantive jury note with counsel outside presence of jury, but reading note into record in presence of parties, is generally error, but it is not mode of proceedings error); Kadarko, 14 N.Y.3d at 429-30 (failure to give defendant meaningful notice of jury note is mode of proceedings error, but because trial court promptly disclosed part of jury's note and delayed disclosure of part of that note, any error was not mode of proceedings error). Seventh, the record shows that the trial court instructed the prospective jurors who were claiming hardship that the clerk would speak to them about their hardship (VO 12). The record does not exclude the possibility that the clerk, after interviewing the prospective jurors, relayed to the court what the prospective jurors had said, and that it was the court itself that determined whether to excuse the prospective jurors. Thus, contrary to defendant's assertion (Defendant's Letter at 18-19), the record does not show that the judge was not the ultimate arbiter of whether the prospective jurors would be discharged for hardship. Accordingly, because the record is inadequate to support defendant's claim, that claim should be rejected. See People v. McLean, 15 N.Y.3d 117,121 (2010) (" [Tj he lack of an adequate record bars review on direct appeal wherever the record falls short of establishing 36 People v. Ronnell Jordan December 24, 2015 conclusively the merit of the defendant's claim. Simple fairness, and respect for orderly procedure, require this stringent approach"); People v. Velasquez, 1 N.Y.3d 44, 47-49 (2003) (because defendant failed to meet his burden of coming forward with substantial evidence establishing his absence from robing room conference with potential jurors, his Antommarchi claim was rejected on ground that he failed to provide adequate record for appellate review); People v. Camacho, 90 N.Y.2d 558, 562 (1997) (defendant could not obtain "appellate edge" based upon inadequate record); People v. Kinchen, 60 N. Y. 2d 772, 773 (1983) (defendant must provide a record adequate to support appellate review). In fact, the trial court told the prospective jurors that it was the court itself that would decide whether to grant the hardship excusals, stating, "Now, if it's a real hardship to be here, I can excuse you," and, "If I excuse you because you have a hardship, you will have to speak to the clerk and either one or [sic; of?] two things will happen" (VD 11) (emphasis added). Accordingly, because the record does not show that the delegation by the court to the clerk of the responsibility to talk to the prospective jurors about their hardships was anything more than a delegation of a ministerial task, no mode of proceedings error occurred. See, ~, People v. Hernandez, 37 People v. Ronnell Jordan December 24, 2015 94 N.Y.2d 552, 556 (2000) (because deliberating jury's requested readbacks "required no further rulings or instructions than those previously made by the court," no "mode of proceedings" error occurred when those requested readbacks were made outside of court's presence [citation omitted]); People v. Bonaparte, 78 N. Y. 2d 26, 30 (1991) ( "not every communication with a deliberating jury requires the participation of the court," and court officers may communicate with deliberating jurors in fulfilling "ministerial tasks"); people v. Coles, 249 A.D.2d 32, 32-33 (1st Dep't 1998) (finding no delegation of judicial function where "there [was] no proof in the record that the court officer performed any functions 'other than ministerial in nature'" [citations omitted]). Eighth, even if the court had completely delegated the decision about whether to grant excusals for hardship to the "clerk" who would "speak to [prospective jurors who claimed a hardship] outside" (see VD 11, 12) , the record does not establish whether the clerk who would "speak to [any such prospective jurors] outside" was a clerk for the court or instead was a clerk for the County Clerk. If the clerk was from the office of the County Clerk, then the clerk, as an employee of the County Clerk, would have been entitled to grant pre-jury- selection excusals for hardship in this case. See Jud. L. 38 People v. Ronnell Jordan December 24, 2015 §§ 502(a), (e), 5l7(c). Accordingly, because the record does not show whether the clerk to whom the court referred was a clerk for the court or instead an employee of the County Clerk, defendant's claim should be rejected, because his claim depends on facts that are not established by the record. See McClean, 15 N.Y.3d at 121; Velasquez, 1 N.Y.3d at 47-49; Camacho, 90 N.Y.2d at 562; Kinchen, 60 N.Y.2d at 773. In addition, an alleged error of a trial court should not be characterized as a "mode of proceedings" error that is exempt from the preservation requirement when the absence of an objection at trial to the alleged error may well be attributable to a reasonable strategic decision by defense counsel. In People v. Autry, 75 N.Y.2d 836 (1990), this Court held that a claim of error regarding an extended instruction to the jury that no adverse inference should be drawn from the defendant's failure to testify did not fall wi thin the exception to the preservation requirement, noting that "it [was) entirely possible that the failure to object represent [ed) counsel's trial level determination that an extended instruction to the jury would benefit these defendants." Id. at 839. Similarly, in this case, defense counsel reasonably could have concluded that it would not benefit the defense to have jurors on the panel at trial who believed that they were suffering a hardship 39 People v. Ronnell Jordan December 24, 2015 by serving on the jury, and who might as a result become biased, consciously or subconsciously, against defendant or who would be distracted during trial by their perceived hardships. Thus, in this case, because defendant reasonably could have concluded that it would not benefit the defense to object to the court's procedure, defendant should not be permitted, on appeal, to obtain a windfall by characterizing the court's procedure as a "mode of proceedings" error that is not subj ect to the preservation requirement. See Nealon, 2015 N.Y. LEXIS 3547, at *16 (if failing to discuss substantive jury note with counsel outside presence of jury were held to be mode of proceedings error, "it would be unwise for counsel to obj ect and seek correction of the error, inasmuch in the absence of a correction of the error on the record, the defendant would automatically receive an appellate reversal and a new trial"); Becoats, 17 N. Y. 3d at 651 (defendants should not be able to "obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it. To expand the definition of 'mode of proceedings' error too freely would create many such anomalous results"); see also People v. Walston, 23 N.Y.3d 986, 992 (2014) (Smith, J., concurring) ("Dispensing with the preservation requirement may invite defense counsel to manipulate the system by 40 People v. Ronnell Jordan December 24, 2015 remaining silent while error is committed, only to complain of it later"). Accordingly, for all of the above reasons, defendant's claim does not fall within the "mode of proceedings" exception to the preservation requirement. Defendant also claims that the procedure employed by the trial court to determine whether to excuse prospective jurors for hardship was improper and involved a mode of proceedings error because that procedure allegedly violated JUdiciary Law § 517(c) and 22 N.Y.C.R.R. § 128.6-a(d) (Defendant's Letter at 18), but defendant's claim, in addition to being unpreserved, is 41 People v. Ronnell Jordan December 24, 2015 meritless. 5 First, those provisions address only when a prospective juror may be excused from jury service, but in this case, any prospective jurors who were excused from defendant's trial were not excused altogether from jury service. Rather, as the court informed the prospective jurors, if they were excused 5 Judicary Law § 517(c) provides, in its entirety: In determining whether an application for excusal should be granted, the commissioner or the court shall consider whether the applicant has a mental or physical condition that causes him or her to be incapable of performing jury service or there is any other fact [which] indicates that attendance for jury service in accordance with the summons would cause undue hardship or extreme inconvenience to the applicant, a person under his or her care or supervision, or the public. Except as provided in paragraph two of subdivision (a) of this section, in determining whether an application for postponement should be granted, the commissioner or the court shall be guided by standards promulgated by the chief administrator of the courts. 22 N.Y.C.R.R. § 12S.6-a defines in relevant part the terms "postponement" of jury service and "excusal" from jury service, as used in that provision, as follows: 1. "Postponement" A "postponement" of jury service is an adjournment of the date of jury service to a subsequent fixed date. These guidelines shall apply only to postponements of between six and IS months from the date set forth in the initial juror summons. Postponements of up to six months from the initial summons are not covered by these guidelines . 2. "Excusal" - An "excusal" from jury service is the cancelling of a juror summons 22 N.Y.C.R.R. § 128.6-a(d) (I). 42 People v. Ronnell Jordan December 24, 2015 from being considered for this trial, then they would be sent back to continue their jury service and possibly be required to serve as jurors at another trial (VD 11-12). Second, irrespective of whether the court's procedure in determining whether to excuse prospective jurors violated these provisions, for many of the same reasons as those given above (see supra at 23-41) , the purported violation of these provisions would not be a mode of proceedings error, and thus this unpreserved claim is beyond the review of this Court. Defendant also claims that the procedure that the court employed in determining whether to excuse prospective jurors for hardship violated the policy set forth in Judiciary Law § 500, but defendant's claim, in addition to being unpreserved, is meritless. That provision states that it is "the policy of this state" that juries be "selected at random from a fair cross- section of the community in the county . wherein the court convenes; and that all eligible citizens shall have an obligation to serve when summoned for that purpose, unless excused." The policy declaration in Judiciary Law § 500 relates solely to how the general jury pool is to be selected from the community of the county at large, but does not refer to how a petit jury is to be selected. See Lockhart v. McCree, 476 u.S. 162, 173-74 (1986) ("The limited scope of the fair-cross-section 43 People v. Ronnell Jordan December 24, 2015 requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly 'representative' petit jury " [citation omitted]); Harris, 98 N.Y.2d at 479-80 (holding that, in this regard, New York Constitution does not afford greater protection than does Federal Constitution). As this Court has noted, U[i]f we took the fair cross-section requirement to its logical extreme, it would inappropriately produce a jury composed in part of individuals who have indicated that they cannot and would not follow a judge's instructions on the law and would undermine the defendant's right to an impartial jury." Id. at 479 (citation omitted). Accordingly, because defendant's claim involves solely the selection of the petit jury, and not the selection of the general jury pool from the community at large, the policy declaration in Judiciary Law § 500 does not apply to his claim. In any event, the procedure employed by the court did not cause the resulting empaneled jury to be selected from something less than a fair cross-section of the community. The policy declaration set forth in Judiciary Law § 500 is that juries should be selected from a U fair cross-section of the community" (Jud. L. § 500 [emphasis added]), and not that juries should be selected from a perfect cross-section of the community. Indeed, 44 People v. Ronnell Jordan December 24, 2015 even with absolute compliance with the provisions of the Judiciary Law, jury selection will not necessarily result in a perfect cross-selection of the community. For example, Judiciary Law § 506 provides that prospective jurors are to be selected at random from an enumerated set of lists, but those lists do not necessarily encompass all persons eligible to serve as jurors. See Jud. L. § 506. Furthermore, those lists include "persons who have volunteered to serve as jurors." rd. Thus, there may be some persons who serve only because they have volunteered to do so, while others who are similarly situated do not serve because they have not volunteered do so. Additionally, Judiciary Law § 510 provides in relevant part that a juror must be a citizen of the United States, not be less than eighteen years old, not have been convicted of a felony, and be able to understand and communicate in the English language. Thus, whole classes of people are excluded by law from serving on juries. Furthermore, Judiciary Law § 517 provides for excusal for hardship and other reasons. Additionally, the Appendix to 22 N.Y.C.R.R. § 128.6-a provides that prospective jurors may be excused by the trial judge "based upon matters of conscience" and that the Commissioner of Jurors is authorized to remove from the current list of eligible jurors members of the clergy who request excusal for "matters of conscience." Thus, 45 People v. Ronnell Jordan December 24, 2015 defendant fails to show how the procedure that the court employed to determine whether to excuse prospective jurors for hardship resulted in an empaneled jury that was selected from a less fair cross-section of the community than would have resulted if the court had conducted procedure for determining excusals for hardship in a manner that defendant would have deemed to be in compliance with the law. Moreover, the policy declaration in Judiciary Law § 500 does not provide that any violation of that policy requires reversal of a judgment of conviction, irrespective of whether the defendant objected at trial to the violation. In People v. Hicks, 6 N.Y.3d 737 (2005), this Court applied the preservation requirement to a claim regarding the adequacy or propriety of the trial court's questioning of a juror to determine whether the juror should be removed. Id. at 739 (claim was unpreserved because "[djefendant neither informed the court that its questioning was insufficient or objectionable, nor suggested additional avenues of inquiry or requested that other jurors be questioned"). Given that, as in Hicks, the preservation requirement applies to a claim regarding the adequacy or propriety of a court's questioning of a sworn juror to determine whether that juror should be removed for cause, it is even clearer that the preservation requirement should 46 People v. Ronnell Jordan December 24, 2015 likewise apply to defendant's claim regarding the adequacy or propriety of the procedure that the trial court employed to determine whether to remove prospective jurors for hardship. Similarly, with respect to matters regarding the selection of a petit jury, which is the issue in this case, this Court has applied the preservation requirement. For example, a Batson claim -- which involves a question of petit-jury selection -- is subj ect to the preservation requirement. See People v. James, 99 N.Y.2d 264, 266 (2002) (because defendant in each case failed to preserve Batson claim, convictions were affirmed). Defendant also suggests that the procedure employed by the trial court to determine whether to excuse prospective jurors for hardship violated Criminal Procedure Law § 270.20 (see Defendant's Letter at 17), but any such claim, in addition to being unpreserved, is meritless. That statute, by its own terms, governs solely challenges for cause (see C.P.L. § 270.20), and in this case the procedure at issue concerned the decision whether to grant excusals for hardship, and not for cause. Defendant additionally argues that the manner in which the court determined whether to excuse prospective jurors for hardship "undermines the civic duty that jury service embodies" (Defendant's Letter at 19-20). As argued above (see supra at 47 People v. Ronnell Jordan December 24, 2015 41-43), however, the procedure at issue did not concern a decision whether to excuse prospective jurors from their jury service, but rather concerned a decision whether to excuse them only from defendant's trial. Furthermore, the court's admonitions to the prospective jurors, in which the court stressed the importance of jury service (VD 9-10), did not undermine the civic duty that jury service embodies. Defendant's reliance on People v. Toliver, 89 N.Y.2d 843 (1996), is misplaced. In Toliver, the judge was absent "from portions of the actual voir dire examination of jurors by counsel." Id. at 845. Reversal was required in Toliver because the trial court's absence violated C. P. L. § 270.20 and because "a defendant has a fundamental right to have a Judge preside over and supervise the voir dire proceedings while prospective jurors are being questioned regarding their qualifications." Id. In this case, in contrast to Toliver, the dictates of C.P.L. § 270.20 are not implicated, because that statute governs only challenges for cause, and defendant's claim concerns excusals for hardship, not challenges for cause. See C. P. L. § 270.20(1). Also, in this case, in contrast to Toliver, the procedure at issue did not occur during the formal voir dire, when the attorneys were questioning the prospective jurors regarding their qualifications (see supra at 23-26). 48 People v. Ronnell Jordan December 24, 2015 In People v. Monroe, 90 N.Y.2d 982 (1997), this Court cited Toli ver in support of the proposition that "when a Judge's absence from trial proceedings prevents performance of an essential, nondelegable judicial function reversal is required. H 90 N.Y.2d at 984. In this case, however, as argued above (supra 23-36), the court did not delegate an essential, nondelegable judicial function by employing the procedure at issue to determine whether to excuse prospective jurors for hardship. Indeed, in Toliver, this Court, in stating that "the selection of the jury is part of the criminal trial,H cited this Court's decision in Velasco, 77 N.Y.2d at 472. See Toliver, 89 N.Y.2d at 844. But, in Velasco, this Court distinguished between the pre-voir-dire stage of proceedings, which is not a material stage of the criminal trial, and the formal voir dire stage of proceedings, which is a material stage of the trial. Velasco, 77 N.Y.2d at 472-73. Accordingly, because Toliver concerned the procedure during voir dire, which was an essential part of the criminal proceeding, reversal was required in Toliver, but in this case, because the procedure for determining whether to grant pre-voir-dire excusals for hardship was not an essential part of the criminal proceeding, reversal is not required. 49 People v. Ronnell Jordan December 24, 2015 Additionally, in this case, the trial judge presided over the jury selection proceedings and did not delegate the task of deciding whether to excuse prospective jurors (see supra at 29- 36), in contrast to Toliver, in which the trial judge was absent during portions of those proceedings. Cf. Ahmed, 66 N.Y.2d at 310 ("the absence of the trial judge, and the delegation of some of his duties to his law secretary during a part of the jury's deliberations, deprived the defendant of his right to a trial by jury, an integral component of which is the supervision of a judge") . Defendant's reliance on People v. Roblee, 70 A.D.3d 225 (3d Dep't 2009) (see Defendant's Letter at 20-21), is also misplaced. In Roblee, the trial court, "in a single question, asked potential jurors, en masse, to raise their hands if any of the following situations applied: they were suffering from a serious health or physical problem; they knew defendant, his counsel, the District Attorney or the prosecuting assistant district attorneys; they had pressing personal or business reasons which could prevent them from serving; or they or a close friend or family member had been accused of, convicted of or been the victim of domestic violence or any crime." 70 A.D.3d at 229. Before asking that question, the court stated that the court and counsel would discuss these issues with 50 People v. Ronnell Jordan December 24, 2015 anyone to whom they applied. Id. The court asked the prospective jurors who raised their hands in response to the court's question to leave the courtroom, and the jury was selected without questioning those who, at the court's request, had left the courtroom. Id. Defense counsel obj ected to the exclusion of the prospective jurors who were asked to leave the courtroom, "not ling] that he may have wanted some of those individuals such as anyone wrongly accused of domestic violence -- as jurors." Id. The Third Department reversed the conviction, holding that "[u]nder these circumstances, the jury was not chosen 'at random from a fair cross-section of the community' (Judiciary Law § 500)." 70 A.D.3d at 230. In support of its holding, the Third Department stated that "[t] he method employed here essentially excluded individuals from the pool based on a vague answer to a multifaceted question"; that the trial court did not keep its promise to give the potential jurors "a chance to discuss those issues in more detail with the court"; and that "[s]ignificantly, none of these jurors asked to be excused or indicated that they could not be fair and impartial." Id. at 229. Defendant's reliance on Roblee is misplaced, because, in Roblee, unlike defendant's case, the claim was preserved by an objection at trial. Thus, in Roblee, the Third Department had 51 People v. Ronnell Jordan December 24, 2015 no occasion to consider the central question at issue here, namely, whether a claim that the procedure for determining a pre-voir-dire excusal for hardship was improper falls within the mode of proceedings exception to the preservation requirement. Additionally, unlike in defendant's case, the excusals in Roblee were not limited solely to those prospective jurors claiming hardship, and none of the excluded prospective jurors asked to be excused. Accordingly, this Court should reject defendant's claim that the trial court committed a "mode of proceedings" error through the procedure that was employed to determine, before the commencement of voir s:!ire, excusals of prospective jurors for hardship. POINT II DEFENDANT HAS FAILED TO PRESERVE FOR APPELLATE REVIEW HIS CLAIM THAT THE TRIAL COURT ERRED BY ALLOWING CROSS-EXAMINATION OF THE DEFENSE WITNESS REGARDING AN OMISSION FROM THE WITNESS'S PRETRIAL STATEMENT TO A PROSECUTOR. IN ANY EVENT, THAT CLAIM IS MERITLESS. IN ADDITION, THE COURT PROPERLY ALLOWED REBUTTAL TESTIMONY REGARDING THE WITNESS'S OMISSION, AND, IN ANY EVENT, ANY ERROR IN ALLOWING THAT TESTIMONY WAS HARMLESS. Defendant's claim that the People did not lay a proper foundation to impeach Aderogba, on cross-examination, with his failure to tell ADA Reeves that defendant was not at the crime 52 People v. Ronnell Jordan December 24, 2015 scene is unpreserved for appellate review, because, at trial, defendant did not object to that cross-examination. In any case, the cross-examination was proper. In addition, the court properly allowed ADA Reeves to testify on rebuttal concerning Aderogba's omission. At trial, defense counsel made only a general, one-word objection to the People eliciting testimony on cross-examination of Aderogba that he had not told ADA Reeves that defendant was not at the crime scene (Aderogba: 183-84). Defense counsel never objected to that testimony, or moved to strike it, on the ground which, with respect to that testimony, defendant advanced for the first time on appeal -- that the People did not adequately show that the witness's omission from that prior statement was unnatural. While defense counsel did obj ect to the introduction of ADA Reeves's testimony regarding the omission from Aderogba's statement arguing that "[h] e was never asked [if defendant was in the apartment] and you can't ask him something that he was never asked" (201-02) that objection was only "to his [ADA Reeves's] testimony" (201); defense counsel never moved to strike Aderogba's testimony regarding the omission in his statement to ADA Reeves and never specified any ground for counsel's one-word obj ection to the cross-examination of Aderogba on that subject. Hence, 53 People v. Ronnell Jordan December 24, 2015 defendant's claim that "the People should not have been allowed to move forward with their impeachment efforts on cross- examination" (Defendant's Letter at 26-27) is unpreserved and is not reviewable by this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2); People v. Miller, 89 N.Y.2d 1077, 1079 (1997) (claim that People did not lay proper foundation for questioning of alibi witnesses regarding their silence at the arrest scene and at the stationhouse was unpreserved where defendant did not obj ect to questioning at trial); People v. Tevaha, 84 N.Y. 2d 879 (1994) (the word "objection" alone was insufficient to preserve claim that trial court erred by permi tting certain testimony); People v . Oliver, 63 N. Y. 2d 973, 975 (1984) (to preserve a claim of evidentiary error, a defendant must assert at trial an argument that is "sufficiently specific" to alert the court to the alleged error); see also People v. Person, 8 N.Y.3d 973, 975 (2007); People v. Waters, 90 N.Y.2d 826, 828 (1997). In any case, the People laid a proper foundation for their cross-examination of Aderogba about his omission. "It is an elementary rule of evidence, and of common sense, in our State and almost every other jurisdiction, that, when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible 54 People v. Ronnell Jordan December 24, 2015 for purposes of impeachment." People v. Savage, 50 N.Y.2d 673, 679 (1980) (citations omitted). When a witness makes a statement to a law enforcement official regarding a crime, but omits from that statement information that would exculpate the defendant who is charged with that crime, in determining whether the omission is unnatural, the following criteria must be considered: whether the witness was aware of the nature of the charge pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant, and was familiar with the means of making such information available to law enforcement authorities. See People v. Dawson, 50 N.Y.2d 311, 321 n.4 (1980); Savage, 50 N.Y.2d at 681 n.3. The evidence adduced by the People at trial, prior to the cross-examination of Aderogba regarding the omission from his statement, met all of these criteria. The People elicited testimony from Aderogba that he met with defendant and his family to discuss defendant's case, and that he spoke to ADA Reeves about the case (Aderogba: 173-76, 182) . From these conversations, Aderogba had reason to recognize that his allegation that defendant was not present at the crime scene was exculpatory. Furthermore, Aderogba had a motive to exonerate defendant, because Aderogba was a friend of 55 People v. Ronnell Jordan December 24, 2015 defendant's brother and knew defendant (Aderogba: 170-71) . Finally, Aderogba could have easily made the exculpatory information available to ADA Reeves when ADA Reeves interviewed him. However, Aderogba chose to omit this allegedly exculpatory information from his statement to ADA Reeves. Hence, there was a sufficient foundation for the People's cross-examination of Aderogba about his omission. Defendant argues that the foundation was insufficient because it did not account for Aderogba's discomfort in speaking with law enforcement officials or ADA Reeves's failure to explicitly ask Aderogba whether defendant was at the crime scene (Defendant's Letter at 28). As the trial court recognized (202- 03), while these factors may be appropriate for the jury to consider in determining the weight to be given to the omission, they do not undermine the conclusion that the court was allowed to submit to the jury the question of whether the omission was unnatural. See Miller, 89 N.Y.2d at 1079-80 (finding proper foundation laid for cross-examination of defendant's alibi wi tnesses' omissions where witnesses refused to speak to assistant district attorney "because they did not feel comfortable"); Dawson, 50 N. Y. 2d at 322 (" [aJ s is true in any instance in which impeachment evidence is offered, the trier of fact may reasonably be expected to weigh the available 56 People v. Ronnell Jordan December 24, 2015 information and determine for itself whether the witness' trial testimony is consistent with his prior behavior and assertions"); People v. Wise, 46 N.Y.2d 321, 327 (1978) (when considering the admissibility of prior inconsistent statements, "the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned the impeachment evidence"). On cross-examination, Aderogba admitted that he did not did not tell ADA Reeves that defendant was not at the crime scene, but Aderogba claimed that ADA Reeves never asked him if defendant was there and that he did not have an opportunity to provide ADA Reeves with this information because of the brevity of his discussion with ADA Reeves (Aderogba: 183-85). The People sought to call ADA Reeves to rebut Aderogba's explanation for his omission (200-01), and the court properly granted the People's request (202). See Wise, 46 N.Y.2d at 328. However, while the People elicited testimony from ADA Reeves that Aderogba had not told him that defendant was not at the crime scene (Reeves: 227), the People did not, on direct examination of ADA Reeves, elicit any testimony rebutting Aderogba's explanation for his omission (Reeves: 224-27). It was defense counsel who, in an apparent attempt to demonstrate that ADA Reeves's interview with Aderogba was brief, first 57 People v. Ronnell Jordan December 24, 2015 elicited the testimony from ADA Reeves countering Aderogba's explanation of his omission. Defense counsel elicited from ADA Reeves that ADA Reeves's conversation with Aderogba was "comprehensi ve" and lasted "between five and ten minutes," that Reeves and Aderogba discussed defendant, and that Reeves asked Aderogba who was in the apartment (Reeves: 228-30). It was only on redirect examination that the People elicited from ADA Reeves that the reason that Reeves's interview with Aderogba was short was because Aderogba "indicated to me that he was uncomfortable in the Kings County District Attorney's Office. I spoke to him for as long as he would stand and talk to me and then he got on an elevator and left" (Reeves: 231) . Hence, defendant's argument that the People should not have been permitted to rebut Aderogba's explanation for his omission is meritless, because it was defendant, not the People, who first elicited any testimony on this matter from the rebuttal witness. In any event, any error in admitting ADA Reeves's testimony concerning Aderogba's omission was harmless. See People v. Crimmins, 36 N.Y.2d 230, 242 (1975) . The evidence of defendant's guilt was overwhelming. At the time of the shooting, Austin had known defendant for about a year. They lived in the same building and Austin had seen defendant about six or seven times. On the night of the shooting, Austin and 58 People v. Ronnell Jordan December 24, 2015 defendant were at a party together and had played dice together at the party. Immediately before the shooting, defendant and Austin conversed as defendant threatened Austin with a gun. Defendant was only two feet away from Austin when he fired a bullet into Austin's chest. There was no evidence that Austin had any motive to lie regarding his identification of defendant as the person who shot him, and, in view of Austin's familiarity with defendant and his protracted opportunity to observe defendant on the night of and immediately before the shooting, there is no reason to doubt the reliability of Austin's identification of defendant as the shooter. In addition, defendant was not prejudiced by ADA Reeves's testimony about the omission from Aderogba's statement. Aderogba admitted that Reeves had interviewed him and that, at the time of the interview, Aderogba knew that defendant was charged with shooting Austin. The explanation that Aderogba gave for not telling Reeves that defendant was not at the crime scene -- which was that the interview was short and that ADA Reeves allegedly cut off Aderogba when he said that he could not identify the shooter (Aderogba: 184-85) -- is not credible, in view of Aderogba's admitted knowledge that defendant was charged with the shooting and his close relationship to defendant. Hence, there is no significant probability that the jury would 59 People v. Ronnell Jordan December 24, 2015 have acquitted defendant absent ADA Reeves's rebuttal testimony that Aderogba had ample opportunity to tell ADA Reeves that defendant was not the shooter. Furthermore, to the extent that defendant is challenging ADA Reeves's testimony that Aderogba did not tell him that defendant was not at the crime scene, there is also no significant probability that the jury would have acquitted defendant absent that testimony, because Aderogba himself had already admitted to that omission and because there was overwhelming evidence of defendant's guilt. Finally, in arguing that the trial court allowed the testimony of ADA Reeves without first determining whether a proper foundation for that testimony had been established (see Defendant's Letter at 27-28), defendant simply misinterprets the record. The court did not leave to the jury the court's gate- keeping function regarding the admissibility of ADA Reeves's testimony. The trial court stated that Aderogba was "a purported friend of the defendant," that Aderogba "knew the defendant [was] charged with a crime," that Aderogba "[told] the DA, I didn't see who did the shooting," and that Aderogba did not add, "but the defendant was never there, why are you charging him" (202) . The court then stated that "one might be naturally expected to say that, without being asked" (202). The court 60 People v. Ronnell Jordan December 24, 2015 also went on to articulate factors that the jury might consider in determining whether it was, nonetheless, reasonable for Aderogba not to have told ADA Reeves that defendant was not at the crime scene: whether ADA Reeves's questioning of Aderogba was very quick; whether Aderogba's "attention [was] called to the matter"; and whether Aderogba was "specifically asked about it" (202). It was only after the court had concluded that there was a sufficient basis to submit to the jury the question of whether the omission was natural, and had enumerated the factors that the jury might consider in deciding whether the omission was natural, that the court said that the question was "up to the jury" (203). Hence, the record demonstrates that the trial court itself made the determination that there was a sufficient basis to submit to the jury the question of whether Aderogba's omission was unnatural. Consequently, this Court should rej ect defendant's claim concerning the impeachment of Aderogba. 61 People v. Ronnell Jordan December 24, 2015 POINT III THE TRIAL CCOURT PROPERLY EXERCISED ITS DISCRETION IN PERMITTING TESTIMONY CONCERNING AN ATTEMPT BY THE DEFENSE WITNESS TO BRIBE ANOTHER WITNESS NOT TO TESTIFY AGAINST DEFENDANT. The trial court properly exercised its discretion in permitting Austin to testify about Aderogba's attempt to bribe him not to testify. This testimony was highly probative, and any potential prejudice to defendant was cured by the court's limiting instruction. ~[E]xtrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground." People v. Spencer, 20 N.Y.3d 954,956 (2012) (quoting People v. Hudy, 73 N.Y.2d 40, 56 [1988]). However, a court may, in its discretion, exclude such evidence if its probative value is outweighed by the prospect of undue prejudice to the opposing party. See People v. Primo, 96 N.Y.2d 351, 355-56 (2001). But appellate review of a trial court's decision in this regard is limited to determining whether the trial court abused its discretion. See People v. Cass, 18 N.Y.3d 553, 560 n.3 (2012). Austin's testimony about the bribery attempt was highly probative because it bore on Aderogba's credibility with regard to his claim that defendant was not at the crime scene. 62 People v. Ronnell Jordan December 24, 2015 Moreover, Austin's testimony directly contradicted Aderogba's testimony that he did not try to convince Austin not to testify. Additionally, any potential for undue prejudice to defendant from Austin's testimony regarding the bribe attempt was offset by the court's limiting instructions. See People v. Morris, 21 N.Y.3d 588, 598 (2013). The court instructed the jury that the testimony was admissible only to evaluate Aderogba's credibility, because there was "[nl 0 evidence at all that the defendant knew anything about this, assuming it ever took place" (234). Under these circumstances, the court did not abuse its discretion in permitting Austin to testify about the bribery attempt. Defendant contends that the court should not have admitted Austin's testimony about the bribery attempt because the court said that Austin's allegation might be "bizarre" (207) and suggested that the People would have to "stretch it" (208) for the People to convince the jury that the bribery attempt had occurred (Defendant's Letter at 29). However, the issue was not whether the court was skeptical of Austin's testimony, but whether the testimony was of sufficient probative value to the case. By introducing Austin's testimony about the bribery attempt, the People were not simply "stockpiling additional 63 People v. Ronnell Jordan December 24, 2015 evidence of bias" on Aderogba's part toward defendant (Defendant's Letter at 29). Rather, the People were presenting evidence that both undermined the credibility of Aderogba's testimony that defendant was not at the crime scene, and also directly countered Aderogba's testimony that he never attempted to persuade Austin not to testify. Consequently, the court did not abuse its discretion in permitting the testimony about the bribery attempt. * * * For all of the aforementioned reasons, the order of the Appellate Division and the judgment of conviction should be affirmed. cc: Kevin C. Adam, Esq. James Trainor, Esq. Louis O'Neill, Esq. White & Case LLP 1155 Avenue of the Americas New York, New York 10036 Lynn W.L. Fahey, Esq. David P. Greenberg, Esq. Appellate Advocates 111 John street, 9th Floor New York, New York 10038 64 Respectfully submitted, A~A-~ Amy Appelbaum Assistant District Attorney (718) 250-2139