People v. Tucker — 261 A.D.2d 877

Majority

p. 877

The People of the State of New York, Respondent, v Gregg S. Tucker, Appellant.

[690 NYS2d 799]

—Judgment unanimously affirmed. Memorandum: Contrary to the contention of defendant, he was not deprived of his constitutional right to be present at all stages of his trial. Despite being warned of the importance of being present in the courtroom,

p. 878

defendant repeatedly insisted that he did not wish to remain and thus waived his right to be present. In addition, defendant forfeited the right to be present by engaging in disruptive behavior (see, People v Lewis, 231 AD2d 919 , lv denied 89 NY2d 1096 ; see also, People v Byrnes, 33 NY2d 343 , 349-350; People v Gloster, 175 AD2d 258 , lv denied 78 NY2d 1011 ). In the absence of a showing of good cause, defendant was not deprived of his right to counsel by County Court’s refusal to assign him a third successive attorney just prior to voir dire (see, People v Sawyer, 57 NY2d 12 , 18-19, rearg dismissed 57 NY2d 776 , cert denied 459 US 1178 ; People v Herbert, 251 AD2d 754 , lv denied 92 NY2d 983 ; People v Garcia, 250 AD2d 421 , lv denied 92 NY2d 897 ).

The prosecutor’s peremptory challenges to two black jurors did not violate defendant’s constitutional right to equal protection under Batson v Kentucky ( 476 US 79 ). The prosecutor’s explanations for the challenges were race-neutral and were not pretextual (see, People v Hernandez, 75 NY2d 350 , 356-358, affd 500 US 352 ; People v Wint, 237 AD2d 195 , 198, lv denied 89 NY2d 1103 ; People v Anaya, 206 AD2d 380 , lv denied 84 NY2d 865 ).

The court árticulated a reasonable basis for requiring defendant to remain in handcuffs during a portion of the trial and thus acted within its discretion in restraining defendant (see, People v Rouse, 79 NY2d 934 ; People v Houk, 222 AD2d 1074 , 1075; People v Freeman, 184 AD2d 864 , lv denied 80 NY2d 903 ). Finally, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Onondaga County Court, Mulroy, J. — Criminal Mischief, 3rd Degree.) Present — Denman, P. J., Green, Pine, Hayes and Hurlbutt, JJ.

Cases cited

People v. Lewis 231 AD2d 919 N.Y. App. Div. 1996-09-27 p. 878
People v. Byrnes 33 NY2d 343 N.Y. 1974-02-14 at 349-350 p. 878
People v. Gloster 175 AD2d 258 N.Y. App. Div. 1991-07-22 p. 878
People v. Sawyer 57 NY2d 12 N.Y. 1982-07-02 at 18-19 p. 878
John Cuneo, Inc. v. National Labor Relations Board 459 US 1178 SCOTUS 1983-01-24 p. 878
People v. Herbert 251 AD2d 754 N.Y. App. Div. 1998-06-11 p. 878
People v. Garcia 250 AD2d 421 N.Y. App. Div. 1998-05-12 p. 878
Batson v. Kentucky 476 US 79 SCOTUS 1986-04-30 p. 878
People v. Hernandez 75 NY2d 350 N.Y. 1990-02-22 at 356-358 p. 878
Hernandez v. New York 500 US 352 SCOTUS 1991-05-28 p. 878
People v. Anaya 206 AD2d 380 N.Y. App. Div. 1994-07-05 p. 878
People v. Rouse 79 NY2d 934 N.Y. 1992-03-31 p. 878
People v. Houk 222 AD2d 1074 N.Y. App. Div. 1995-12-22 at 1075 p. 878
People v. Freeman 184 AD2d 864 N.Y. App. Div. 1992-06-11 p. 878