People v Gonzalez

People v Gonzalez 2009 NY Slip Op 09532 [68 AD3d 627] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Fausto Gonzalez, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered November 28, 2008, convicting defendant, after a jury trial, of two counts of murder in the first degree and four counts of murder in the second degree, and sentencing him to an aggregate term of life without parole, unanimously affirmed.

Without objection, the court employed a pre-voir dire screening device for prospective jurors that was essentially similar to the procedure described in People v Casanova (62 AD3d 88 [2009], lv denied 12 NY3d 852 [2009]). For the reasons stated in Casanova, we find that this procedure was not a mode of proceedings error exempt from the requirement of preservation, and we decline to review defendant's unpreserved challenge to that procedure in the interest of justice. We reject defendant's arguments to the contrary, including his argument that the court "relinquishe[d] control" (People v Toliver, 89 NY2d 843, 844 [1996]) over jury selection. The court, in effect, excused certain jurors as unqualified on the basis of their responses to a single question posed by the court. Thus, the court supervised that stage of jury selection, notwithstanding that it did so in a manner to which defendant belatedly objects. Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.