People v. Philyaw

2023 NY Slip Op 00244

Opinion

People v Philyaw (2023 NY Slip Op 00244)

People v Philyaw

2023 NY Slip Op 00244

Decided on January 19, 2023

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 and Entered: January 19, 2023
Before: Renwick, J.P., Webber, Moulton, González, Rodriguez, JJ.

Ind No. 2622/17 Appeal No. 17122 Case No. 2018-04363

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

v

Najre Philyaw, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Emily N. Gault of counsel), for respondent.

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered December 13, 2018, convicting defendant, after a jury trial, of criminal possession of stolen property in the fifth degree, and sentencing him to a term of one year, unanimously affirmed.

The court meaningfully responded to a jury note by rereading the elements of the crime and reminding the jury to avoid speculation and render a verdict based solely upon the evidence (see People v Steinberg, 79 NY2d 673, 684 [1992]; People v Malloy, 55 NY2d 296, 301 [1982], cert denied 459 US 847 [1982]). The additional instruction tracked the applicable Penal Law provisions and was sufficient to address the concern that the note appeared to be raising as to the intent element of criminal possession of stolen property (see People v Lewis, 5 NY3d 546, 551 [2005]). Nor has defendant demonstrated that he was prejudiced by any claimed error in the court's response (see People v Lourido, 70 NY2d 428, 435 [1987]). The court informed the jury that it could seek additional clarification if rereading the charge was insufficient, and the jury did not send any further notes regarding that charge (see People v Almodovar, 62 NY2d 126, 132 [1984]; People v Stokes, 149 AD3d 510, 511 [1st Dept 2017], lv denied 29 NY3d 1097 [2017]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 19, 2023