| People v Mendez |
| 2014 NY Slip Op 02520 [116 AD3d 513] |
| April 10, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edwin Mendez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedJanuary 10, 2012, convicting defendant, after a jury trial, of assault in the second degree,and sentencing him, as a second violent felony offender, to a term of seven years,unanimously affirmed.
Although the record is silent regarding the court's responses to three jury notesrequesting materials not in evidence, reversal is not required. None of these notes weresubstantive inquiries that required compliance with the procedures mandated by CPL310.30 (see People v O'Rama, 78 NY2d 270 [1991]). Instead, these notes onlynecessitated the ministerial actions of informing the jury that none of the items theyrequested were in evidence (seePeople v Ziegler, 78 AD3d 545 [1st Dept 2010], lv denied 16 NY3d 838[2011]). Furthermore, defendant's claims are unreviewable for lack of a sufficient record(see People v Kinchen, 60 NY2d 772, 773-774 [1983]). "[A] presumption ofregularity attaches to judicial proceedings and may be overcome only by substantialevidence" (see People vJohnson, 46 AD3d 415, 417 [1st Dept 2007], lv denied 10 NY3d 812[2008]). Accordingly, there was no mode of proceedings error (see People vStarling, 85 NY2d 509, 516 [1995]).
Under the circumstances of the case, defendant received a sufficient opportunity todemonstrate, in connection with his justification defense, his knowledge of prior violentacts by his opponents in the altercation at issue, and the court's limitations on suchevidence were reasonable exercises of discretion (see People v Miller, 39 NY2d543, 552-553 [1976]). In the context of the particular justification defense actuallypresented by defendant, the prior violent acts had very little probative value (seeid.). To the extent any of the court's restrictions could be viewed as erroneous, wefind them to be harmless (see People v Crimmins, 36 NY2d 230 [1975]).Defendant did not preserve his claims that certain prior acts of prosecution witnesseswere admissible to impeach their credibility, or that any of the court's evidentiary rulingsimpaired his constitutional right to present a defense (see People v Lane, 7 NY3d 888, 889[*2][2006]; see also People v Padro, 75 NY2d 820[1990]), and we decline to review these claims in the interest of justice. As an alternativeholding, we reject them on the merits (see Crane v Kentucky, 476 US 683,689-690 [1986]). Concur—Friedman, J.P., Moskowitz, Freedman, Gische andClark, JJ.