| People v Salas |
| 2008 NY Slip Op 00412 [47 AD3d 513] |
| January 24, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JessieSalas, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), forrespondent.
Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered July 7, 2005,convicting defendant, after a jury trial, of criminal mischief in the second degree, and sentencinghim, as a second felony offender, to a term of 2½ to 5 years, unanimously affirmed.
At issue on appeal is whether the court's response to two jury notes violated the principles ofPeople v O'Rama (78 NY2d 270, 277-278 [1991]). In each instance, the record reflectsthat defendant and counsel were present when there was a "pause in the proceedings,"immediately after which the court brought the jury back to the courtroom, read the note into therecord, and responded. Each time, defense counsel made no comment on the court's procedure oron the substance of its response.
We reject defendant's claim that there is a mode of proceedings error which is exempt fromthe preservation requirements. Defendant failed to make a record in the trial court that issufficient to permit appellate review (People v Johnson, 46 AD3d 415 [2007]).
The record demonstrates that the court, at least, fulfilled its "core responsibility" (People v Kisoon, 8 NY3d 129,135 [2007]) to notify counsel of the contents of each note by reading it in open court. The courtdid not prevent counsel from knowing the specific contents of the notes, or from suggestingdifferent responses than those the court provided (compare People v Starling, 85 NY2d509, 516 [1995], with People v Cook, 85 NY2d 928 [1995]). Furthermore, viewed inlight of the presumption of regularity (see People v Velasquez, 1 NY3d 44, 48 [2003]), we conclude thatthe "pause in proceedings" in each instance was an off-the-record disclosure of the note tocounsel, accompanied by an opportunity to be heard. This conclusion is reinforced by the factthat neither note was likely to have required much discussion by counsel. In one instance, thecourt provided a simple readback of testimony, and in the other the court delivered a legalinstruction that was favorable to defendant. Our conclusion is also supported by the fact thatimmediately after the second "pause," the court said "All right, for the record," and read thesecond note into the record, thus implying, given the other circumstances present, the existenceof a prior unrecorded discussion.[*2]
Defendant's claim that his counsel provided ineffectiveassistance with regard to these matters is without merit. Concur—Mazzarelli, J.P.,Andrias, Catterson and McGuire, JJ.