People v. Rosado

Jun 8, 1999
Versions:262 A.D.2d 62
691 N.Y.S.2d 452
1999 N.Y. App. Div. LEXIS 6419

—Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered June 5, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 8Vs to 25 years and 5 to 15 years, respectively, unanimously affirmed.

Although the court did not notify defense counsel prior to complying with the deliberating jury’s request for chalk and a ruler, reversal pursuant to People v O’Rama (78 NY2d 270) is not mandated because the jury’s note did not request any substantive information (see, People v Damiano, 87 NY2d 477, 487). Defendant’s claim that the jury may have made improper use of these materials is waived (see, People v Ayers, 214 AD2d 459, lv denied 86 NY2d 732; see also, People v Argibay, 45 NY2d 45, 52-53), as well as being unreviewable (see, People v Kinchen, 60 NY2d 772) because defendant objected to any attempt by the court to question or instruct the jurors about this subject. Under these circumstances, the court properly exercised its discretion in denying defendant’s motion for a mistrial, the only remedy he requested when the situation came to light (People v Ayers, supra). Concur — Williams, J. P., Wallach, Andrias and Friedman, JJ.