| People v McDonald |
| 2015 NY Slip Op 07040 [131 AD3d 1268] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jason McDonald, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andRhea A. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(McKay, J.), rendered October 5, 2010, convicting him of criminal possession of aweapon in the second degree (two counts) and criminal possession of a weapon in thefourth degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of the effective assistance of counsel.There is no merit to this contention, as the record reveals that the defendant receivedmeaningful representation (see Strickland v Washington, 466 US 668 [1984]; People v Caban, 5 NY3d143, 156 [2005]; People v Benevento, 91 NY2d 708 [1998]; People vBaldi, 54 NY2d 137 [1981]).
Contrary to the defendant's contention, raised in his pro se supplemental brief, theSupreme Court's failure to adhere precisely to the requirements of People vO'Rama (78 NY2d 270 [1991]; see CPL 310.30) in responding to a jury noterequesting readbacks of two witnesses' testimony did not constitute a mode ofproceedings error (see People vAlcide, 21 NY3d 687, 694 [2013]; People v Starling, 85 NY2d 509, 516[1995]; People v Thomas,115 AD3d 995, 996 [2014]; People v Gerrara, 88 AD3d 811, 812 [2011]; cf. People v Morris, 120 AD3d835, 836 [2014], lv granted 24 NY3d 1045 [2014]; People v Nealon, 116 AD3d886, 886-888 [2014], lv granted 23 NY3d 1065 [2014]), and requiredpreservation (see CPL 470.05 [2]; People v Cosme, 99 AD3d 940, 941 [2012]; People vGerrara, 88 AD3d at 812-813). The defendant failed to preserve his claim of errorfor appellate review (see People v Alcide, 21 NY3d at 694; People v Ramirez, 15 NY3d824, 826 [2010]). In any event, the defendant suffered no discernible prejudice fromthe court's handling of the note (see People v Battle, 15 AD3d 413, 414 [2005]; People vTinner, 209 AD2d 457, 458 [1994]).
The defendant's contention that the Supreme Court improperly sentenced him basedon a materially untrue assumption is unpreserved for appellate review (see CPL470.05 [2]; People v Rivera,124 AD3d 917, 918 [2015]). In any event, the contention is without merit, as thecourt's stated grounds for the sentence were supported by the trial evidence (see People v Stewart, 95 AD3d1363, [*2]1365 [2012]; People v Scallero,122 AD2d 350, 352 [1986]; cf. People v Naranjo, 89 NY2d 1047, 1049 [1997];People v Metellus, 46AD3d 578, 579 [2007]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention, raised in his pro se supplemental brief, iswithout merit. Leventhal, J.P., Chambers, Austin and Miller, JJ., concur.