People v. Van

161 A.D.2d 326, 555 N.Y.S.2d 91, 1990 N.Y. App. Div. LEXIS 5291

Opinion

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered April 17, 1989, convicting defendant, after a jury trial, of two counts of attempted robbery in the second degree and sentencing him, as a second violent felony offender, to two concurrent prison terms of 2 Vi to 5 years, is unanimously affirmed.

On appeal, defendant raises a single claim, arguing that he was absent at a material stage of the proceedings when the court, during a lunch recess, received a note from the deliberating jury requesting a report which was not in evidence. The court directed the clerk to advise the jury that the report was not in evidence. However, when the parties returned, counsel was advised of what had transpired and requested that the jury be advised that they could have reread certain testimony which related to this record. This was done and defendant did not object to this procedure at trial.

.We conclude that by not only failing to object, but by specifically requesting another communication with the jury, defendant has waived this claim for review. Even if we were to review in the interest of justice, however, while the advisable procedure would have been to wait for all parties to return, the jury’s request, coupled with the court’s response, raised no issues affecting any "substantial right” of defendant, and the communication between court and jury outside of defendant’s presence was not such "a material part of the

trial” requiring reversal (People v Mullen, 44 NY2d 1, 5). Concur—Murphy, P. J., Ross, Asch and Wallach, JJ.