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BECAUSE THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT DID NOT ADDRESS DEFENDANT’S OBJECTION TO THE TRIAL JUDGE’S PROHIBITING DEFENDANT FROM COMMUNICATING WITH HIS ATTORNEY DURING OVERNIGHT RECESSES WHEN DEFENDANT WAS ON THE STAND (FOURTH DEPT).

The Fourth Department determined the defendant did not preserve for appeal his objection to the trial judge’s prohibiting defendant from communicating with his lawyer during overnight recesses when defendant was testifying. The legitimacy of the objection was not addressed:

Defendant … contends in his main brief that the court committed reversible error by depriving him of the constitutional right to counsel when it prohibited him from communicating with defense counsel about his testimony during overnight recesses while defendant was in the midst of testifying in his defense. Defendant failed to preserve that contention for our review inasmuch as defense counsel was ” present and available to register a protest’ to [the] restriction on communication that would [have] provide[d] the court with an opportunity to rectify its error” but did not make a timely protest … . Under the circumstances of this case, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . Contrary to defendant’s related contention in his main brief, we conclude under the circumstances of this case that defense counsel’s failure to timely object to the prohibition on communication was not so “egregious and prejudicial as to compromise . . . defendant’s right to a fair trial” … . People v Tetro, 2020 NY Slip Op 01973, Fourth Dept 3-20-20

 

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