People v Cavilla (Michael)
Annotate this CaseDecided on July 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2006-1326 S CR.
The People of the State of New York, Respondent,
against
Michael J. Cavilla, Appellant.
Appeal from a judgment of the Justice Court of the Town of East Hampton, Suffolk County
(Catherine A. Cahill, J.), rendered July 27, 2006. The judgment convicted defendant, upon a jury
verdict, of assault in the third degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, following a jury trial, of assault in the third degree (Penal Law § 120.00 [1]). On appeal, defendant contends that numerous sidebar conferences were improperly held outside of his presence during jury selection and trial. A criminal defendant has the statutory right to be present during sidebar questioning of prospective jurors on matters of bias or prejudice since such questioning is a material stage of the trial (see CPL 260.20; People v Vargas, 88 NY2d 363, 375 [1996]; People v Rodriguez, 85 NY2d 586, 590 [1995]). While the right to be present at these sidebar conferences may be waived (see People v Velasquez, 1 NY3d 44, 49 [2003]), the record herein does not indicate that defendant made such a waiver. Invocation of the statutory right to be present will be rejected, however, when the claim that the defendant's presence would have had an impact on the outcome of the trial is speculative, the violation of the statute is de minimis, or the defendant's presence could not have afforded him any meaningful opportunity to affect the outcome of the particular proceeding at issue (see People v Roman, 88 NY2d 18, 26 [1996]).
The record on appeal does not indicate who was present at the sidebar conferences involving the voir dire of three prospective jurors. It is well settled that a presumption of regularity attaches to all judicial proceedings, and the defendant has the burden of rebutting this presumption by substantial evidence (see People v Velasquez, 1 NY3d at 48). We find that defendant failed to rebut the presumption that he was present (see id.). As to the remaining [*2]sidebar conferences that occurred during trial, they all concerned discussions of law or procedure and, therefore, defendant's presence was not required (see People v Vargas, 88 NY2d at 375; People v Rodriguez, 85 NY2d at 590-591).
Defendant's contention that his conviction should be reversed due to the People's failure to turn over notes that the prosecuting attorney made during a witness interview is unpreserved since defense counsel requested no remedy or sanction with regard to the nondisclosure of the purported Rosario material (see e.g. People v Rogelio, 79 NY2d 843 [1992]; People v Perdomo, 280 AD2d 617 [2001]), and we decline to review this issue in the interest of justice.
Defendant also contends that the Justice Court improperly restricted his counsel's cross-examination of a witness regarding his immigration status. While extrinsic proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, cross-examination aimed at establishing a motive to fabricate must proceed upon some good-faith basis (see People v Garcia, 47 AD3d 830, 831 [2008]). Since defense counsel did not establish a reasonable basis to believe that the witness was, in fact, in this country illegally, the trial court did not improvidently exercise its discretion in precluding this line of questioning (see id.). In any event, since the inference of a motive to fabricate was remote and speculative, the court properly declined to permit questioning about the witness's immigration status.
Defendant's contention that he was deprived of a fair trial due to comments made by the prosecutor during his opening statement and as a result of questions posed and comments made by the prosecutor during his re-direct examination of a witness is unpreserved for appellate review since defendant did not object to one of the challenged comments, made only general one-word objections to the rest of the comments, and did not move for a mistrial or request curative instructions when his objections were sustained (see People v Rivera, 73 NY2d 941, 942 [1989]; People v Ford, 69 NY2d 775, 776 [1987]; People v Gillespie, 36 AD3d 626 [2007]). In addition, defendant contends that he was deprived of a fair trial due to the prosecutor's questioning of a police officer regarding probable cause. Although the trial court should not have allowed the police officer to answer such questions, there is no significant probability that defendant would have been acquitted but for said error (see People v Crimmins, 36 NY2d 230 [1975]).
Furthermore, giving much deference to the jury's verdict, particularly with respect to its credibility determinations (see People v Mateo, 2 NY3d 383, 410 [2004]; see also People v Romero, 7 NY3d 633, 644-645 [2006]), even as we conduct our own review of the evidence (see People v Danielson, 9 NY3d 342 [2007]), we find that the verdict was not against the weight of the evidence. The jury accepted the complainant's version of the events, and from complainant's testimony it may be concluded that defendant intentionally assaulted the complainant. Defendant's remaining contentions have no merit.
Accordingly, the judgment of conviction is affirmed.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: July 08, 2010
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
