| People v Alvarez |
| 2008 NY Slip Op 06937 [54 AD3d 612] |
| September 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v CesarAlvarez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 21,2004, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencinghim to a term of 20 years, unanimously affirmed.
Since the court's reference to numerical majorities did not result in a constitutionallydeficient jury instruction, counsel's failure to object to that reference did not deprive defendant ofeffective assistance. Although the court employed language that we disapproved in People v Johnson (11 AD3d 224[2004]), it did so only in the context of the requirement of a unanimous verdict. The jury couldnot have been misled as to the People's burden, which the court consistently defined as beyond areasonable doubt (see People vHenderson, 50 AD3d 525 [2008]; People v Gortspujuls, 44 AD3d 368 [2007], lv denied 9NY3d 1006 [2007]).
The court's adverse inference charge concerning the prosecution's loss or destruction ofcertain notes of a witness interview was sufficient to prevent any prejudice to defendant (seePeople v Martinez, 71 NY2d 937, 940 [1988]), and the court properly exercised its discretionin declining to include the additional language requested by defendant.
The record does not establish that defendant's sentence was based on any improper criteria,and we perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Andrias,Saxe, Friedman and Acosta, JJ.