| People v Bonner |
| 2010 NY Slip Op 09789 [79 AD3d 1790] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darin Bonner,Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered July 13, 2009. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of robbery inthe first degree (Penal Law § 160.15 [3]) and criminal possession of a weapon in the thirddegree (§ 265.02 [1]), defendant contends that Supreme Court failed to comply with CPL310.30 and the procedures outlined in People v O'Rama (78 NY2d 270, 277-278 [1991])in responding to a second note from the jury during its deliberations. Although defendantcorrectly concedes that he failed to preserve that contention for our review (see CPL470.05 [2]), he nevertheless contends that the court's alleged error, which involved failing toadvise the attorneys of the contents of the note before summoning the jurors to the courtroom soas to respond to the note, is a mode of proceedings error for which preservation is not required(see generally People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197[1977]). We reject that contention. Where, as here, the court fulfills its "core responsibility"under CPL 310.30 by marking the note as a court exhibit and summarizing its contents on therecord in open court before responding to it, preservation is required (People v Kisoon, 8 NY3d 129,135 [2007]; see People v Starling, 85 NY2d 509, 516 [1995]; People v Samuels, 24 AD3d 1287[2005], lv denied 7 NY3d 817 [2006]). Under the circumstances of this case, we declineto exercise our power to address defendant's contention concerning the court's response to thesecond jury note as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Furthermore, viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Althoughdefendant was not in possession of the victim's stolen property when he was arrested shortly afterthe robbery, the victim testified that her purse was taken by the other robber, who was notapprehended, and defendant [*2]possessed an unusual knife thatmatched the description of the knife used in the robbery. The victim also identified defendant in ashowup identification procedure and at trial as the person who put the knife to her throat, anddefendant admitted that he lived on the same street where the robbery occurred, withinapproximately 500 feet thereof. Even assuming, arguendo, that a different verdict would not havebeen unreasonable, we conclude that the jury did not "fail[ ] to give the evidence the weight itshould be accorded" (id.; seePeople v VanDyne, 63 AD3d 1681 [2009], lv denied 14 NY3d 845 [2010]).
Finally, in view of defendant's prior felony conviction and the fact that defendant could havebeen sentenced to a term of imprisonment of up to 25 years, we conclude that the term ofimprisonment of 10 years imposed by the court is not unduly harsh or severe.Present—Martoche, J.P., Centra, Fahey, Lindley and Sconiers, JJ.