People v. Walker, 96 A.D.3d 1481 (N.Y. App. Div. 2012). · Go Syfert
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People v. Walker, 96 A.D.3d 1481 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Davis (nyappdiv, 2017-11-09)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Davis
N.Y. App. Div. · 2017 · confidence medium
Here, we conclude that defendant waived her right to raise that contention on appeal inasmuch as both defendant and defense counsel participated in the conversation and defendant thus consented to manner in which the court responded to the juror’s questions (see People v Walker, 96 AD3d 1481, 1482 [4th Dept 2012], lv denied 20 NY3d 989 [2012]; see generally People v Webb, 78 NY2d 335, 339 [1991]).
discussed Cited as authority (rule) People v. Williams
N.Y. App. Div. · 2012 · confidence medium
By consenting to the use of that conviction as a predicate for sentencing enhancement purposes, defendant waived his right to appellate review of his contention (see generally People v Walker, 96 AD3d 1481, 1482 [2012]; People v Hicks, 12 AD3d 1044 , 1045 [2004], lv denied 4 NY3d 799 [2005]).
discussed Cited as authority (rule) People v. Williams
N.Y. App. Div. · 2012 · confidence medium
By consenting to the use of that conviction as a predicate for sentencing enhancement purposes, defendant waived his right to appellate review of his contention (see generally People v Walker, 96 AD3d 1481, 1482 [2012]; People v Hicks, 12 AD3d 1044 , 1045 [2004], lv denied 4 NY3d 799 [2005]).
discussed Cited "see" People v. Brown (2×)
N.Y. App. Div. · 2016 · signal: see · confidence high
We note that the court properly instructed the jury that the officers merely provided their opinions that defendant was depicted in the videos and that the jurors were the ultimate finders of fact on the issue of the identity of the perpetrators (see Rivera, 259 AD2d at 317 ; see generally People v Walker, 96 AD3d 1481, 1482 [2012], lv denied 20 NY3d 989 [2012]), and the jury is presumed to have followed the court’s instructions (see Walker, 96 AD3d at 1482 ).
discussed Cited "see" BROWN, ADRIAN, PEOPLE v (2×)
N.Y. App. Div. · 2016 · signal: see · confidence high
We note that the court properly instructed the jury that the officers merely provided their opinions that defendant was depicted in the videos and that the jurors were the ultimate finders of fact on the issue of the identity of the perpetrators (see Rivera, 259 AD2d at 317 ; see generally People v Walker, 96 AD3d 1481, 1482 , lv denied 20 NY3d 989 ), and the jury is presumed to have followed the court’s instructions (see Walker, 96 AD3d at 1482 ).
discussed Cited "see" People v. Brown (2×)
N.Y. App. Div. · 2016 · signal: see · confidence high
We note that the court properly instructed the jury that the officers merely provided their opinions that defendant was depicted in the videos and that the jurors were the ultimate finders of fact on the issue of the identity of the perpetrators (see Rivera, 259 AD2d at 317 ; see generally People v Walker, 96 AD3d 1481, 1482 [2012], lv denied 20 NY3d 989 [2012]), and the jury is presumed to have followed the court’s instructions (see Walker, 96 AD3d at 1482 ).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Benny L. Walker
Appellate Division of the Supreme Court of the State of New York.
Jun 8, 2012.
96 A.D.3d 1481
Cited by 7 opinions  |  Published

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered July 8, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the second degree (three counts).

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of three counts of sexual abuse in the second degree (Penal Law § 130.60 [2]). Defendant contends that Supreme Court committed reversible error when, at the start of the second day of jury selection, it questioned and then discharged a sworn juror in the absence of defendant and defense counsel. Although defendant did not object to the procedure employed by the court, we agree with defendant that pres[*1482] ervation of his contention is not required where, as here, the court committed a mode of proceedings error (see generally People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]). The court’s in camera questioning and discharge of the sworn juror deprived defendant of, inter alia, his “constitutional right to counsel at trial” (People v Johnson, 189 AD2d 318, 320 [1993]; see People v McLean, 15 NY3d 117, 120-121 [2010]; People v Ahmed, 66 NY2d 307, 310 [1985], rearg denied 67 NY2d 647 [1986]; People v Kinchen, 60 NY2d 772, 773 [1983]). Nevertheless, “[w]aiver and preservation are separate concepts” (Ahmed, 66 NY2d at 311; see People v Webb, 78 NY2d 335, 339-340 [1991]; People v Moore, 233 AD2d 670, 671-672 [1996], lv denied 89 NY2d 987 [1997]), and we agree with the People that, by consenting to the procedure employed by the court, defendant waived his right to appellate review of the court’s allegedly improper discharge of the sworn juror (see People v Barner, 30 AD3d 1091, 1092 [2006], lv denied 7 NY3d 809 [2006]; cf. People v Noguel, 93 AD3d 1319, 1320 [2012]; see also People v Davis, 83 AD3d 860, 861 [2011]; People v Pennisi, 217 AD2d 562, 563 [1995], lv denied 86 NY2d 800 [1995]; see generally People v Colon, 90 NY2d 824, 825-826 [1997]).

Defendant’s further contention that the court erred in permitting a police impact investigator to use the word “victim” during his testimony concerning his interview of the complainant lacks merit. He did not testify to the contents of his interview with the complainant, nor did he give an opinion relating to the complainant’s credibility or defendant’s guilt, and thus he did not thereby bolster the complainant’s testimony (see generally People v Buie, 86 NY2d 501, 509-510 [1995]), or otherwise usurp the jury’s role as factfinder (see generally People v Hartzog, 15 AD3d 866, 867 [2005], lv denied 4 NY3d 831 [2005]). In any event, the court instructed the jury both during the investigator’s testimony and its charge that the jurors were the ultimate finders of fact and resolvers of credibility, and the jury is presumed to have followed the court’s instructions (see generally People v Moore, 71 NY2d 684, 688 [1988]; People v Thagard, 28 AD3d 1097, 1098 [2006], lv denied 7 NY3d 795 [2006]). Even assuming, arguendo, that the court erred in admitting the investigator’s testimony, however, we conclude that the error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Present — Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.