| People v Nash |
| 2011 NY Slip Op 03092 [83 AD3d 872] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ShandNash, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Lois Cullen Valerio,and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary,J.), rendered August 12, 2009, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Pursuant to CPL 310.30, the trial court must make a meaningful response, in the presence ofcounsel and the defendant, to any jury request "for further instruction or information with respectto the law, with respect to the content or substance of any trial evidence, or with respect to anyother matter pertinent to the jury's consideration of the case." In determining whether the trialcourt has responded meaningfully to the jury's request for further instruction, the factors to beevaluated are the form of the jury's question, the particular issue of which inquiry is made, thesupplemental instruction actually given, and the presence or absence of prejudice to thedefendant (see People v Almodovar, 62 NY2d 126, 131-132 [1984]; People vMalloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]; People v Robinson, 78 AD3d 1204[2010]; People v Ariza, 77 AD3d844 [2010], lv denied 15 NY3d 951 [2010]). Here, contrary to the defendant'scontention, the Supreme Court gave meaningful responses to the jury's written requests duringdeliberations.
The defendant's contention that the Supreme Court impermissibly considered two pendingassault charges as a basis for his sentence also is without merit. The record reflects that theassault charges were raised in the context of the defendant's assertion that he was amild-mannered person. In any event, "[i]t was within the court's discretion to consider thedefendant's prior criminal history, including crimes for which he has never been tried orconvicted . . . as long as the information regarding such crimes was reliable andaccurate" (People v Gonzalez, 242 AD2d 306, 306-307 [1997]; see People vBejarano, 287 AD2d 727 [2001]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Dillon, Balkin and Miller, JJ., concur.