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

750
KA 09-00282
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BENNY L. WALKER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     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 preservation 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, affd 432 US 197). 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; see People v
McLean, 15 NY3d 117, 120-121; People v Ahmed, 66 NY2d 307, 310, rearg
denied 67 NY2d 647; People v Kinchen, 60 NY2d 772, 773).
Nevertheless, “[w]aiver and preservation are separate concepts”
(Ahmed, 66 NY2d at 311; see People v Webb, 78 NY2d 335, 339-340;
People v Moore, 233 AD2d 670, 671-672, lv denied 89 NY2d 987), 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, lv denied 7 NY3d 809; cf. People v Noguel,
93 AD3d 1319, 1320; see also People v Davis, 83 AD3d 860, 861; People
v Pennisi, 217 AD2d 562, 563, lv denied 86 NY2d 800; see generally
                                 -2-                           750
                                                         KA 09-00282

People v Colon, 90 NY2d 824, 825-826).

     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), or otherwise usurp the jury’s role as factfinder (see
generally People v Hartzog, 15 AD3d 866, 867, lv denied 4 NY3d 831).
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; People v Thagard, 28 AD3d 1097,
1098, lv denied 7 NY3d 795). 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).




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
