| People v Cornado |
| 2009 NY Slip Op 01700 [60 AD3d 450] |
| March 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Famian Cornado, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 26,2007, convicting defendant, after a jury trial, of assault in the second degree, and sentencing himto a term of five years, unanimously affirmed.
The record indicates that shortly before the jury announced that it had reached a verdict, thecourt received a note requesting certain photographs received into evidence and a readback oftestimony. Nothing in the record bears on the issue of whether the court read this note to counsel;the court did not respond to it before accepting the verdict. We conclude that defendant hasfailed to present on this appeal a record that is adequate to permit review of his claim (seePeople v Kinchen, 60 NY2d 772 [1983]) that the court violated the precepts set forth inPeople v O'Rama (78 NY2d 270, 277-278 [1991]). Although this failure alone issufficient to reject defendant's argument, we note that defendant has not established anyprejudice (see People v Agosto, 73 NY2d 963, 966 [1989]). By promptly reaching averdict without any further inquiry, the jury implicitly indicated that it no longer needed theinformation requested (see People v Fuentes, 246 AD2d 474, 475 [1998], lvdenied 91 NY2d 941 [1998]). We also note that the note in question asked for a readback oftestimony about lighting conditions, and the jury had already received a readback on that subject.
Defendant also contends that the court failed to follow the steps set forth in People vO'Rama with respect to two other jury inquiries. Although the court reporter apparently wasnot present when the court informed the parties about the content of this note, it is clear from therecord that the court did disclose the contents of each of these inquiries in open court beforeresponding. Accordingly, it fulfilled its "core responsibility" under People v Kisoon (8 NY3d 129,135 [2007]) and there was no mode of proceedings error exempt from preservation requirements(see e.g. People v Starling, 85 NY2d 509, 516 [1995]; People v Snider, 49 AD3d 459[2008], lv denied 11 NY3d 795 [2008]). We decline to review defendant's unpreservedclaim in the interest of justice. As an alternative holding, we find no basis for reversal. Therecord supports the conclusion that counsel received a suitable opportunity for input into thecourt's responses. Two of the inquiries at issue requested routine readbacks, and these requests[*2]were not likely to require significant input from counsel. Thethird asked whether the jurors could take notes, and the court gave the jury appropriateinstructions on that subject. While we do not find that the court's handling of any of the juryinquiries in this case requires reversal, nevertheless, as the Court of Appeals stated inKisoon, "we underscore the desirability of adherence to the procedures outlined inO'Rama" (8 NY3d at 135).
We find no basis for a reconstruction hearing as to any of the issues presented on appeal.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Friedman,Gonzalez, Sweeny and McGuire, JJ.