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People v. Fleming

153 A.D.3d 1648 Court N.Y. App. Div. Decision date 2017-09-29 English

Judges Present — Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.

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p. 1648
The People of the State of New York, Respondent, v John Fleming, Appellant.
[60 NYS3d 880]

Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered April 21, 2015. The judgment convicted defendant, upon a jury verdict, of predatory sexual assault against a child and sexual abuse 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 predatory sexual assault against a child (Penal Law § 130.96) and sexual abuse in the second degree (§ 130.60 [2]), defendant contends that County Court failed to comply with the requirements of CPL 310.30, as set forth in People v O’Rama ( 78 NY2d 270 , 276-277 [1991]), in responding to an inquiry by the jury during deliberations. We conclude that defendant failed to preserve his contention for our review (see generally CPL 470.05 [2]), and we reject his assertion that preservation was not required under these circumstances (see People v Williams, 142 AD3d 1360 , 1362 [2016], lv denied 28 NY3d 1128 [2017]). It is well settled that “[c]ounsel’s knowledge of the precise content of the [jury] note . . . removes the claimed error from the very narrow class of mode of proceedings errors for which preservation is not required” (People v Morris, 27 NY3d 1096 , 1098 [2016]) and, here, the Court “read the precise content of the note into the record in the presence of counsel, defendant, and the jury” (id. at 1097; see People v

p. 1649
Nealon, 26 NY3d 152 , 154 [2015]). We likewise reject defendant’s further contention that the court’s response to a juror’s one-word inquiry was a mode of proceedings error. “Defense counsel was aware of the content of the juror[⅛] comment! ], which [was] made out loud in open court, and did not object to anything the judge or prosecutor did in response” (People v Mays, 20 NY3d 969 , 971 [2012]; see People v Mostiller, 145 AD3d 1466 , 1467-1468 [2016], lv denied 29 NY3d 951 [2017]). Therefore, the court did not violate its core O’Rama responsibilities, and preservation was required (see Mostiller, 145 AD3d at 1467-1468 ). We decline to exercise our power to review defendant’s O’Rama contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Present — Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.

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