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

249
KA 08-00334
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

CHRISTOPHER D. HUNTER, DEFENDANT-APPELLANT.


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

CHRISTOPHER D. HUNTER, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen K. Lindley, J.), rendered December 17, 2007. The judgment
convicted defendant, upon a jury verdict, of murder in the second
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 murder in the second degree (Penal Law § 125.25
[1]). We reject defendant’s contention that he was denied a fair
trial based on comments by the prosecutor during summation concerning
the defense of extreme emotional disturbance and Supreme Court’s
ruling in response to his objection to those comments. We agree with
defendant that, in making its ruling, the court improperly stated that
“mercy” was an element of that defense (see § 125.25 [1] [a]). We
note, however, that the court thereafter properly instructed the jury
on the statutory elements of the defense and properly stated the
fundamental legal principles applicable thereto. We conclude that the
isolated misstatement by the court was satisfactorily corrected by the
court’s proper jury instructions (see generally People v Higgins, 188
AD2d 839, 841, lv denied 81 NY2d 972).

     Contrary to defendant’s further contention, we conclude that the
prosecutor’s comments during summation concerning the lack of mercy
shown by defendant toward the victim were a fair response to defense
counsel’s summation (see People v Ali, 89 AD3d 1412, 1414, lv denied
18 NY3d 881). “Even assuming, arguendo, that the prosecutor’s
comments were beyond [the broad bounds of rhetorical comment
permissible], we conclude that they were not so egregious as to
deprive defendant of a fair trial” (People v McEathron, 86 AD3d 915,
                                 -2-                          249
                                                        KA 08-00334

916, lv denied 19 NY3d 975).

     We reject defendant’s contention that he was denied the right to
be present during a material stage of the trial. Here, in his omnibus
motion, defendant sought a ruling to preclude the People from
admitting evidence of defendant’s prior convictions and bad acts,
while the People, pursuant to Sandoval and Molineux, sought a pretrial
ruling permitting them to use at trial defendant’s five prior
misdemeanor and felony convictions and six letters that he had written
to his wife. Defense counsel agreed on the record to the procedure
whereby the court would render a decision on the parties’ written
submissions with respect to those matters before opening statements,
and we conclude that defendant had the opportunity to contribute to
defense counsel’s written submission (see People v Liggins, 19 AD3d
324, 325, lv denied 5 NY3d 853). Prior to opening statements, the
court called the prosecutor and defense counsel to the bench to
apprise them of its Sandoval and Molineux rulings. Defendant’s
physical presence was not required at that bench conference inasmuch
as the court was “ ‘simply placing on the record the [rulings] it had
already made’ ” with respect to the People’s Sandoval and Molineux
applications, and defendant could not reasonably have contributed his
views even if he had been present (see People v Guerrero, 27 AD3d 386,
386; People v Rivera, 201 AD2d 377, 377, lv denied 83 NY2d 875). We
also note that the court thereafter, in defendant’s presence in open
court, announced the essence of its rulings with respect to the
People’s Sandoval and Molineux applications. To the extent that
defendant contends that he was denied the right to be present at a
pretrial Ventimiglia hearing, we note that a defendant is not entitled
to such a hearing (see People v Robinson, 28 AD3d 1126, 1128, lv
denied 7 NY3d 794). We have reviewed the contentions raised in
defendant’s pro se supplemental brief and conclude that they are
without merit.




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
