| People v Brito |
| 2016 NY Slip Op 00573 [135 AD3d 627] |
| January 28, 2016 |
| Appellate Division, First Department |
[*1](January 28, 2016)
| The People of the State of New York,Respondent, v Jairo Brito, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (AnastasiaHeeger of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Stephen W. Paynter, J.), rendered April17, 2009, convicting defendant, after a jury trial, of burglary in the second degree, andsentencing him to a term of eight years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. Although in performing weight of evidence review, we may consider thejury's verdict on other counts (see People v Rayam, 94 NY2d 557, 563 n [2000]),we conclude that defendant's acquittals of other charges does not undermine theconviction. "Where a jury verdict is not repugnant, it is imprudent to speculateconcerning the factual determinations that underlay the verdict" (People v Horne,97 NY2d 404, 413 [2002]; see also People v Hemmings, 2 NY3d 1, 5 n[2004]).
The court's handling of a note from the deliberating jury asking, without elaboration,to speak "privately" with the judge does not warrant reversal. Defendant did not preservehis claim that the court violated the procedures set forth in People v O'Rama (78NY2d 270 [1991]), and there was no mode of proceedings error. We decline to reviewdefendant's claim in the interest of justice. As an alternative holding, we reject it on themerits.
When the court received the jury's note on the third day of jury deliberations, it hadno way of knowing the subject of the jury's concern, or why it had chosen not to revealthis in the note itself. At that point, the jury's concern could have been a ministerialmatter such as scheduling, and was not necessarily a request for information covered byCPL 310.30. The court disclosed the note to counsel for both sides, who agreed that thejudge could go into the jury room and ask the jurors what they meant by asking to speakto the judge "privately." Thus, while not to be encouraged, the court's private conferencewith the jurors to find out what they wanted was itself essentially ministerial (see People v Ochoa, 14 NY3d180, 187-188 [2010]; People v Williams, 38 AD3d 429, 431 [1st Dept 2007],lv denied 9 NY3d 965 [2007]). The court's statements on the record make it clearthat as soon as the court learned that the jury was making a substantive inquiry, it madeno response, and it conducted all subsequent proceedings in open court. Accordingly, thecourt did not violate defendant's right to be present when it undertook [*2]the ministerial task of seeking clarification of the jury'snote. When the judge returned to the courtroom after speaking to the jury, he stated onthe record in the presence of the defendant, his attorney and the prosecutor that "I went inwith one of the officers and all they wanted to ask me . . . was whether theycould hear the charges again on the burglary counts. So I intend to bring the jury out andread to them once again the burglary charges." The jury was then returned to thecourtroom, and after confirming with the jury that it had "requested to hear what theburglary charges involved, the elements of the burglary charges again," the court rereadits charge. At that point, defense counsel had notice of the jury's request and "knowledgeof the substance of the court's intended response—a verbatim rereading of the[burglary] charge previously given" (People v Starling, 85 NY2d 509, 516[1995]). Thus, counsel's silence and failure to object to this procedure "at a time whenany error by the court could have been obviated by timely objection renders the claimunpreserved and unreviewable" (id.; see also People v Williams, 21 NY3d 932, 935 [2013]; People v Alcide, 21 NY3d687, 694 [2013]; People vRamirez, 15 NY3d 824, 826 [2010]).
We further find that the court provided defendant with "meaningful notice" both ofthe contents of the note requesting to speak to the judge privately and of the jury's oralrequest for reinstruction (seePeople v Nealon, 26 NY3d 152, 156 [2015]; People v Kisoon, 8 NY3d 129, 134 [2007]). The court toldcounsel what the jury had requested, and then reconfirmed this, in open court, in thejury's presence. While the better practice would have been for the court to direct the juryto put its request for reinstruction in a written note, under these circumstances, we findthat the court fulfilled its "core responsibility" under Kisoon (id. at 134)and O'Rama. Therefore, this was not a mode of proceedings error, and thepreservation rule applies (see e.g. People v Nealon, 26 NY3d at 158).Concur—Mazzarelli, J.P., Sweeny, Moskowitz and Kapnick, JJ.