People v. Fleming

Appellate Division of the Supreme Court of New York

People v. Fleming

2017 NY Slip Op 6804, 153 A.D.3d 1648, 60 N.Y.S.3d 880

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 29, 2017

Docket1080 KA 15-00840

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 6804 (People v. Fleming) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fleming, 2017 NY Slip Op 6804, 153 A.D.3d 1648, 60 N.Y.S.3d 880 (N.Y. Ct. App. 2017).

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Opinion

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 *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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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 *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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Bluebook (online)

2017 NY Slip Op 6804, 153 A.D.3d 1648, 60 N.Y.S.3d 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fleming-nyappdiv-2017.

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