        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1140
KA 15-01408
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KYLE HUNTER, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN T. LEEDS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered May 14, 2015. The judgment convicted defendant,
upon a jury verdict, of promoting prison contraband in the first
degree.

     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 promoting prison contraband in the first degree
(Penal Law § 205.25 [2]). Contrary to defendant’s contention, County
Court properly refused to suppress the hand-made weapon removed from
defendant’s pocket during a pat frisk without conducting a hearing.
Although defense counsel stated that he was unable to determine the
reason defendant was searched from the information he had received
from defendant, the former attorney and the People (see generally
People v Bryant, 8 NY3d 530, 533-534), the record establishes that he
was aware that a correction officer had observed defendant engage in
what he considered to be suspicious behavior when defendant moved his
right hand very slowly and put an item in his right front pocket while
seated at a table in the dining hall. Defense counsel’s assertion
that a hearing was required to obtain more information regarding the
basis for the search is not sufficient to establish defendant’s
entitlement to a hearing (see generally People v Garay, 25 NY3d 62,
72, cert denied ___ US ___, 136 S Ct 501).

     We reject defendant’s contention that he was denied his
constitutional right to attend a sidebar conference during jury
selection. The record establishes that the court and counsel
discussed a ministerial matter regarding whether some of the venire
could be released because 11 jurors had been selected, and thus
defendant failed to establish that the conference was a material stage
of the trial or that he otherwise had the right to be present because
                                 -2-                          1140
                                                         KA 15-01408

he would have had “ ‘something valuable to contribute’ ” to that
discussion (People v Monroe, 90 NY2d 982, 984). By failing to object
to the use of leg shackles during the trial after the court had
reserved its decision on that part of defendant’s omnibus motion until
trial, defendant failed to preserve for our review his contention that
his due process rights were violated by the use of leg shackles
without sufficient explanation by the court on the record (see People
v Campbell, 106 AD3d 1507, 1509, lv denied 21 NY3d 1002). In any
event, although the court erred in failing to articulate its reasons
for requiring the use of leg shackles, the error is harmless (see
People v Clyde, 18 NY3d 145, 153).

     Defendant also failed to preserve for our review his contention
that the court committed reversible error in providing a response to
the inquiry of a juror during deliberations, out of the presence of
the other jurors (see CPL 470.05 [2]). In any event, we note that the
court thereafter instructed the jury, in response to that question,
that there was no evidence regarding what items an inmate was
permitted to carry in his or her pocket and that the jury was required
to consider only the evidence presented (see generally People v
Torres, 125 AD3d 1481, 1483, lv denied 25 NY3d 1172). Thus, any error
is harmless inasmuch as the evidence of guilt is overwhelming, and
there is no significant probability that defendant would have been
acquitted if the court had responded differently to the juror’s
inquiry (see generally People v Crimmins, 36 NY2d 230, 241-242).

     Defendant further contends that alleged errors on the part of the
court denied him a fair trial. Contrary to defendant’s contention,
the court did not err in giving an Allen charge over his objection
under the circumstances presented here. The jury had deliberated for
five hours over a two-day period on the single count and, in response
to the court’s inquiry whether the jury was close to a verdict in an
effort to determine what it would do about the jury’s lunch break, the
jury responded that it was not close to a verdict (see generally
People v Arguinzoni, 48 AD3d 1239, 1241-1242, lv denied 10 NY3d 859).
Contrary to defendant’s further contention, the court did not coerce a
verdict when it advised the jury that it might be required to recess
two hours early that day (see People v Morency, 93 AD3d 736, 738, lv
denied 20 NY3d 934). Defendant failed to preserve for our review his
remaining two contentions regarding the court’s alleged errors because
he failed to object to the court’s actions (see CPL 470.05 [2]) and,
in any event, we conclude that those contentions also are without
merit.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
