JONES, CYRESS, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
74
KA 09-01202
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CYRESS JONES, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JOHN PATRICK
FEROLETO OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 27, 2009. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts), robbery in the first degree and robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury
verdict of two counts of burglary in the first degree (Penal Law §
140.30 [2], [4]) and one count each of robbery in the first degree (§
160.15 [4]) and robbery in the second degree (§ 160.10 [2] [a]),
defendant contends that Supreme Court failed to comply with CPL 310.30
in responding to three notes from the jury during its deliberation.
Defendant failed to preserve for our review his contention with
respect to the second and third jury notes. We conclude that the
court provided defense counsel with notice of the content thereof and
with the substance of the court’s intended response (cf. People v
Cook, 85 NY2d 928, 931), and defendant failed to object at that time
(see People v Starling, 85 NY2d 509, 516; People v Cooley, 48 AD3d
1091, lv denied 10 NY3d 861; see also People v DeRosario, 81 NY2d 801,
803). Contrary to defendant’s contention, the court was not required
to read the contents of those notes verbatim into the record (see
generally People v Kadarko, 14 NY3d 426, 428-429). We conclude that
defendant waived his contention with respect to the first jury note by
consenting to allow the court to respond to requests for exhibits
without consulting the attorneys (see People v Ming Yuen, 222 AD2d
613, lv denied 88 NY2d 851). In any event, that contention is without
merit (see id.).
Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
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KA 09-01202
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).
Entered: March 25, 2011 Patricia L. Morgan
Clerk of the Court