People v. Chibatto , 148 A.D.3d 553 ( 2017 )

People v Chibatto (2017 NY Slip Op 01997)

People v Chibatto

2017 NY Slip Op 01997

Decided on March 21, 2017

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 March 21, 2017
Acosta, J.P., Renwick, Manzanet-Daniels, Webber, Gesmer, JJ.

3453 5228/12

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

v

Robert Chibatto, Defendant-Appellant.

Seymour W. James, Jr., Legal Aid Society, New York (David Crow and Ursula Bentele of counsel), and Dechert, LLP, New York (Diana Wang of counsel), for appellant.

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

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered September 8, 2014, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the persistent felony offender adjudication and sentence, and sentencing defendant, as a second felony offender, to a term of 2 to 4 years, and otherwise affirmed.

While the court did not comply with the protocols for handling a jury note laid out in People v O'Rama (78 NY2d 270, 276 [1991]), the on-the-record statements of the court and parties make clear that there had been an off-the-record conference regarding the note, and those on-the-record statements indicate that the court had apprised the parties of the entire contents of the note during the off-the-record conference (see People v Walston, 23 NY3d 986, 989 [2014]). Accordingly, defendant's claim that the court violated the O'Rama procedures required preservation under the circumstances, and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find that defendant was not prejudiced by the lack of full compliance with the O'Rama procedures.

The court providently exercised its discretion when it gave the jury an unrequested supplemental instruction after deliberations had begun, and defendant has not shown any prejudice (see People v Echevarria, 136 AD3d 589 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]). The instruction, which the court had inadvertently omitted, was legally correct, and the court avoided any prejudice by advising the jury to draw no inference from the fact that the instruction was being delivered belatedly.

We find that sentencing defendant as a persistent felony offender was an improvident exercise of discretion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 21, 2017

CLERK