| People v Jackson |
| 2013 NY Slip Op 02694 [105 AD3d 607] |
| April 23, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Deshun Jackson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., atsuppression hearing; Ruth Pickholz, J., at jury trial and sentencing), rendered March 31,2009, as amended April 16, 2009, convicting defendant of two counts each of robbery inthe first and second degrees and two counts each of criminal possession of a weapon inthe second and third degrees, and sentencing him, as a second violent felony offender, toan aggregate term of 12 years, unanimously affirmed.
Defendant did not provide a record sufficient to permit review of his claim that thecourt failed to comply with the procedural requirements set forth in People vO'Rama (78 NY2d 270, 277-278 [1991]) in responding to three jury notes. Viewedin light of the presumption of regularity that attaches to judicial proceedings (see People v Velasquez, 1NY3d 44, 48 [2003]), the existing record, to the extent it permits review, does notestablish that the court failed to fulfill its "core responsibility" under People v Kisoon (8 NY3d129, 135 [2007]). There is no evidence that the court prevented defense counselfrom knowing the specific contents of the notes, or from suggesting different responsesfrom those the court provided (see People v Starling, 85 NY2d 509, 516 [1995]).Assuming, without deciding, that the procedure adopted by the court in responding to thejury's notes may have been error, it was not a mode of proceedings error (see People v Kadarko, 14NY3d 426, 429-430 [2010]). Accordingly, defense counsel's failure to object at thattime, when the error could have been cured, renders defendant's claim unpreserved forreview (see People vRamirez, 15 NY3d 824, 826 [2010]), and we decline to review it in the interestof justice.
The jury's first note, which requested certain trial exhibits and a readback of aportion of the testimony of one witness, was ministerial in nature (see People v Ochoa, 14 NY3d180, 188 [2010]; see alsoPeople v Ziegler, 78 AD3d 545 [1st Dept 2010], lv denied 16 NY3d 838[2011]), and "any input by counsel would have been minimal" (People v Snider, 49 AD3d459, 460 [1st Dept 2008], lv denied 11 NY3d 795 [2008]). In any case, withrespect to the part of the note requesting a readback, defendant fails to demonstrate amode of proceedings error since the record shows that the court read that specific requestinto the record in open court and gave [*2]notice of itsintent to comply with the request (see Starling, 85 NY2d at 516). Moreover, therewas no mode of proceedings error with respect to the remaining portion of the first jurynote, which identified specific exhibits requested for review, because beforedeliberations began, defense counsel had expressly agreed to permit the jury to examinethe exhibits in evidence upon request (see People v Green, 82 AD3d 593, 593 [1st Dept 2011],lv denied 17 NY3d 816 [2011]).
As for the second jury note, the court read the note into the record and providednotice of its intended response before recalling the jury into the courtroom, anddefendant's unsupported contention that his counsel was denied the opportunity toparticipate meaningfully in crafting the court's response does not rise to the level requiredfor defendant to overcome the presumption of regularity (see Velasquez, 1 NY3dat 48). To the extent defendant objects, for the first time on appeal, to the substance ofthe supplemental jury charge given in response to the second jury note, such objection isunpreserved (see Starling, 85 NY2d at 516).
Finally, defendant's challenge to the procedure employed by the court in respondingto the third jury note is without merit, since the record reveals that the court read the noteverbatim into the record before advising counsel that it would give the jury "quicksummaries." To the extent this procedure departed from the recommended procedure setforth in O'Rama, such departure does not amount to a mode of proceedings errorand defense counsel's failure to timely voice any objection renders the claim unpreserved.
We have considered and rejected defendant's remaining arguments concerning theO'Rama issues.
The court properly denied defendant's suppression motion. Defendant's argumentsconcerning the initial intrusion into his pocket are similar to arguments this Courtrejected, without elaboration, on a codefendant's appeal (People v Butler, 81 AD3d484, 485 [1st Dept 2011], lv denied 16 NY3d 893 [2011]), and are in anyevent unavailing. Concur—Gonzalez, P.J., Mazzarelli, Moskowitz, Renwick andManzanet-Daniels, JJ.