| People v Alejandro |
| 2015 NY Slip Op 02906 [127 AD3d 434] |
| April 7, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jesus Alejandro, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), renderedNovember 28, 2011, convicting defendant, after a jury trial, of murder in the seconddegree, and sentencing him to a term of 23 years to life, unanimously affirmed.
Defendant's challenge to the court's jury instruction concerning the requirement ofunanimity is unpreserved. We do not find any mode-of-proceedings error exempt frompreservation requirements (see People v Thomas, 50 NY2d 467, 472 [1980]), andwe decline to review this unpreserved claim in the interest of justice. As an alternativeholding, we find no basis for reversal, because the court, which followed the CriminalJury Instructions, sufficiently conveyed to the jury the principle that unanimity wasrequired in order to reject defendant's extreme emotional disturbance defense. Theabsence of an exception to the charge did not deprive defendant of effective assistance ofcounsel, since nothing in the instruction caused defendant any prejudice in light of thecharge as a whole (see People vParra, 58 AD3d 479 [1st Dept 2009], lv denied 12 NY3d 820 [2009]).Concur—Friedman, J.P., Acosta, Moskowitz, Richter and Kapnick, JJ.