Opinion
2013-07-31
The PEOPLE, etc., respondent, v. Tareek MAYNARD, appellant.
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered June 22, 2010, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the second degree (four counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of his right to be present at all material stages of trial. Since the pretrial proceedings at issue only involved questions of law or procedure, his presence was not required ( see People v. Fabricio, 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863; People v. Roman, 88 N.Y.2d 18, 27–28, 643 N.Y.S.2d 10, 665 N.E.2d 1050;People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293;People v. Morales, 80 N.Y.2d 450, 457, 591 N.Y.S.2d 825, 606 N.E.2d 953;People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070).
The defendant's contention that he was deprived of his constitutional right to present a defense is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, the Supreme Court properly precluded the defendant from calling a witness to testify about a tape-recorded conversation. The hearsay conversation did not possess sufficient indicia of reliability, and was not material to the defense ( see People v. Burns, 6 N.Y.3d 793, 795, 811 N.Y.S.2d 297, 844 N.E.2d 751;People v. Fields, 89 A.D.3d 861, 862, 932 N.Y.S.2d 185;People v. Ortiz, 81 A.D.3d 513, 514, 917 N.Y.S.2d 161;cf. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297;People v. Robinson, 89 N.Y.2d 648, 654, 657 N.Y.S.2d 575, 679 N.E.2d 1055;People v. Oxley, 64 A.D.3d 1078, 1083–1084, 883 N.Y.S.2d 385). Furthermore, there is no merit to the defendant's contention that the failure of trial counsel to preserve his constitutional claim for appellate review constituted ineffective assistance of counsel ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;People v. McKenzie, 48 A.D.3d 594, 595, 852 N.Y.S.2d 217;People v. Stover, 36 A.D.3d 837, 838, 831 N.Y.S.2d 183).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).