People v. Rojas , 21 N.Y.S.3d 27 ( 2015 )

People v Rojas (2015 NY Slip Op 08639)

People v Rojas

2015 NY Slip Op 08639

Decided on November 24, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 24, 2015
Tom, J.P., Acosta, Saxe, Moskowitz, Feinman, JJ.

14031 4615/10

[*1] The People of the State of New York, Respondent,

v

Jose Rojas, Defendant-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered March 16, 2012, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 15 years, unanimously affirmed.

Since defendant's claim under People v O'Rama (78 NY2d 270 [1991]) involves jury notes that the court read into the record before responding, thereby providing counsel with notice of their contents, defendant's claim requires preservation (see People v Nealon, __ NY3d __, 2015 NY Slip Op 07781 [2015]; People v Williams, 21 NY3d 932, 934-935 [2013]), and we decline to review this unpreserved claim in the interest of justice.

The prosecutor's summation argument suggesting a possible motive for defendant's otherwise senseless attack on the victim does not warrant reversal (see generally People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1992]; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1998], lv denied 81 NY2d 884 [1993]). It was permissible for the prosecutor to draw a reasonable, evidence-based inference that defendant, while in an intoxicated state, may have mistaken the victim for another woman who had been connected to a prior altercation.

The court did not err in allowing the deliberating jury to view a surveillance video, already in evidence, on a laptop computer supplied by the prosecutor. Under the circumstances, this was the functional equivalent of providing a DVD player for use in the jury room, and there is nothing to indicate that the use of a computer resulted in any prejudice.

Defendant did not preserve his challenge to the procedure by which the court adjudicated the second of his two applications under Batson v Kentucky (476 US 79 [1986]), and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 24, 2015

CLERK