| People v Anderson |
| 2014 NY Slip Op 02509 [116 AD3d 499] |
| April 10, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Adrian Anderson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedJune 15, 2011, convicting defendant, after a jury trial, of attempted robbery in the firstdegree and criminal possession of a weapon in the third degree, and sentencing him, as asecond violent felony offender, to an aggregate term of 15 years followed by five years'postrelease supervision, unanimously affirmed.
Defendant failed to preserve his challenge to the court's handling of a jury noteasking about the possible consequences of a split jury. The court read the note in opencourt, essentially verbatim, before appropriately apprising the jury that their question waspremature and that the court would await the jury's verdict or next communication. Thejury then resumed deliberations, and defense counsel raised no objection, either to thecourt's procedure or the substance of the response. Although the court did not complyprecisely with the procedure outlined in People v O'Rama (78 NY2d 270[1991]), no mode of proceedings error occurred and defendant therefore was required topreserve the objection. Defense counsel was on notice of both "the contents of the[jury's] note and the court's response, and failed to object at that time, when the errorcould have been cured" (Peoplev Ramirez, 15 NY3d 824, 826 [2010]; see also People v Alcide, 21 NY3d 687, 694 [2013]; People v Williams, 21 NY3d932, 934-935 [2013]; People v Ippolito, 20 NY3d 615, 624-625 [2013]).
It was not until the next morning, after the jury had resumed deliberations, thatdefense counsel complained about what had occurred. However, counsel's belatedobjection did not suffice to preserve this claim. It was too late for the court to remedy anyperceived error because the jury reached a verdict while the court and the parties werediscussing the issue. Accordingly, the claim is unpreserved and we decline to review it inthe interest of justice.
Furthermore, it is difficult to understand how the court's short instruction, whichsimply declined to discuss the consequences of a split jury before there actually was one,was improper or could have coerced the jurors into reaching a verdict. There was noindication in the note that the jurors were hung and there was no reason to give anAllen charge. We further note that the jury did not immediately render a verdictafter the court responded to the jury, undermining any [*2]contention that the court's innocuous response coerced averdict (compare People vAponte, 2 NY3d 304 [2004]). Although the better practice would have been forthe court to apprise defense counsel of its proposed response prior to responding to thejury note, the court was made aware, albeit belatedly, of the response defense counselthought was necessary. The court had no obligation to do anything further when counselcomplained the next morning because the response the court originally gave wasappropriate.
Defendant also failed to preserve his claim that the court's ruling limitingcross-examination of a police officer violated his right to present a defense and had theeffect of forcing defendant to testify. At the time the court made its ruling, defensecounsel voiced no protest and simply continued questioning the officer without makingan offer of proof or other argument (see People v Martich, 30 AD3d 305 [1st Dept 2006], lvdenied 7 NY3d 868 [2006]). Defense counsel did not raise an objection until afterthe officer had left the stand and another witness had finished testifying. Even then, afterexplaining the basis of the objection, counsel did not ask the court for permission torecall the officer. Nor did counsel advance the current appellate claim that the court'sruling would prejudice defendant by compelling him to testify. Accordingly, the claim isunpreserved, and we decline to review it in the interest of justice.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Friedman, Renwick, Moskowitz and Richter, JJ.