| People v Snider |
| 2008 NY Slip Op 02747 [49 AD3d 459] |
| March 27, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alonza Snider, Also Known as Alonzo Snider,Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered October 30,2006, as amended November 6, 2006, convicting defendant, after a jury trial, of criminalpossession of a controlled substance in the third and fifth degrees, and sentencing him, as asecond felony drug offender, to concurrent terms of four years, unanimously affirmed.
At issue on appeal is whether the court's response to several jury notes violated the principlesof People v O'Rama (78 NY2d 270, 277-278 [1991]). We conclude that defendant failedto make a record that is sufficient to permit appellate review of this issue (see People vKinchen, 60 NY2d 772, 773-774 [1983]), or to overcome the presumption of regularity thatattaches to judicial proceedings (seePeople v Velasquez, 1 NY3d 44, 48 [2003]). The record does not establish that the courtfailed to fulfill its "core responsibility" under People v Kisoon (8 NY3d 129, 135 [2007]). There is no evidencethat the court prevented counsel from knowing the specific contents of the notes, or fromsuggesting different responses than those the court provided (compare People v Starling,85 NY2d 509, 516 [1995], with People v Cook, 85 NY2d 928 [1995]). Accordingly, wereject defendant's claim that there was a mode of proceedings error exempt from preservationrequirements, and we decline to review this unpreserved claim in the interest of justice. As analternative holding, we find no basis for reversal. The notes simply called for readbacks ofportions of the court's charge, which the court provided, and any input by counsel would havebeen minimal. However, as the Court of Appeals stated in Kisoon, "we underscore thedesirability of adherence to the procedures outlined in O'Rama" (8 NY3d at 135).
Defendant's claim that his counsel was ineffective for failing to object to the court'sprocedure in responding to the notes is unreviewable on direct appeal. The record does notestablish that counsel did not have notice of the jury notes and an opportunity to be heard (seePeople v Love, 57 NY2d 998 [1982]).
We decline to invoke our interest of justice jurisdiction to dismiss the noninclusoryconcurrent count of fifth-degree [*2]possession (see e.g.People v Brown, 298 AD2d 158 [2002], lv denied 99 NY2d 556 [2002]).Concur—Friedman, J.P., Gonzalez, McGuire and Moskowitz, JJ.