| People v Hinton |
| 2009 NY Slip Op 02836 [61 AD3d 481] |
| April 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dashaun Hinton, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered March 6,2007, convicting defendant, after a jury trial, of burglary in the second degree, and sentencinghim to a term of 3½ years, unanimously affirmed.
Defendant failed to make a record sufficient to permit review of his claim (see People vKinchen, 60 NY2d 772, 773-774 [1983]) that the court did not provide defense counsel withnotice of two jury notes and an opportunity to be heard regarding the court's responses (seePeople v O'Rama, 78 NY2d 270 [1991]). Viewed in light of the presumption of regularitythat attaches to judicial proceedings (see People v Velasquez, 1 NY3d 44, 48 [2003]), the existingrecord, to the extent it permits review, demonstrates that the court satisfied its "coreresponsibility" under People vKisoon (8 NY3d 129, 135 [2007]) to disclose jury notes and permit comment bycounsel. Accordingly, there was no mode of proceedings error exempt from preservationrequirements (see People v Starling, 85 NY2d 509, 516 [1995]). There is no evidencethat the court prevented counsel from knowing the specific contents of the notes, or fromsuggesting different responses from those the court provided. On the contrary, the court, at least,revealed the full contents of each note in the presence of counsel and the jury immediately priorto responding.
We decline to review defendant's unpreserved claim in the interest of justice. As analternative holding, we find no basis for reversal. The record supports the conclusion thatcounsel received a suitable opportunity for input into the court's responses. The first of theinquiries at issue required essentially ministerial responses that were not likely to requiresignificant input from counsel (seePeople v Snider, 49 AD3d 459, 460 [2008], lv denied 11 NY3d 795 [2008]).The other inquiry at issue announced that the jury had reached a verdict on two of the threecounts submitted, and the court responded by simply accepting the partial verdict withoutobjection from defense counsel.
While we do not find that the court's handling of any of the jury inquiries in this caserequires reversal, nevertheless, as the Court of Appeals stated in Kisoon, "we underscorethe desirability of adherence to the procedures outlined in O'Rama" (8 NY3d at 135).[*2]
Defendant's challenge to the content of the Allencharge (Allen v United States, 164 US 492 [1896]) that the court delivered inresponse to another jury note is unpreserved, and we decline to review it in the interest of justice.As an alternative holding, we also reject it on the merits (see People v Alvarez, 86 NY2d761, 763 [1995]). Concur—Tom, J.P., Andrias, Buckley and DeGrasse, JJ.