PEOPLE v. ROSADO (1999)

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered June 5, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 8 1/313 to 25 years and 5 to 15 years, respectively, unanimously affirmed.

 Although the court did not notify defense counsel prior to complying with the deliberating jury's request for chalk and a ruler, reversal pursuant to People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, is not mandated because the jury's note did not request any substantive information (see, People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607).   Defendant's claim that the jury may have made improper use of these materials is waived (see, People v. Ayers, 214 A.D.2d 459, 625 N.Y.S.2d 206, lv. denied 86 N.Y.2d 732, 631 N.Y.S.2d 612, 655 N.E.2d 709;  see also, People v. Argibay, 45 N.Y.2d 45, 52-53, 407 N.Y.S.2d 664, 379 N.E.2d 191), as well as being unreviewable (see, People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786) because defendant objected to any attempt by the court to question or instruct the jurors about this subject.   Under these circumstances, the court properly exercised its discretion in denying defendant's motion for a mistrial, the only remedy he requested when the situation came to light (People v. Ayers, supra ).

MEMORANDUM DECISION.