People v. Pless

244 A.D.2d 971, 665 N.Y.S.2d 495, 1997 N.Y. App. Div. LEXIS 12386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: The contention of defendant that County Court erred in denying him an opportunity to participate in the formulation of responses to two written inquiries from the jury during deliberations is not preserved for our review (see, People v Starling, 85 NY2d 509, 516). The first note from the jury was marked as an exhibit and read aloud in defendant’s presence, and defendant did not object upon being informed of the court’s intended response (see, People v Rivera, 233 AD2d 344, lv denied 89 NY2d 946). Although the court did not seek input from defense counsel before responding to the second note, the court had informed counsel of its intent to deviate from accepted practice before responding to the note, and defendant did not object to the court’s procedure (cf., People v O’Rama, 78 NY2d 270, 278). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We further reject the contentions of defendant that he was denied effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147; People v Trait, 139 AD2d 937, 938, lv denied 72 NY2d 867) and that prosecutorial misconduct on summation warrants reversal (see, People v Waller, 239 AD2d 934). Finally, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Onondaga County Court, Mulroy, J.—Assault, 2nd Degree.) Present—Pine, J. P., Lawton, Wisner, Balio and Fallon, JJ.