PEOPLE v. ROBINSON (2008)

Judgment, Supreme Court, Bronx County (Robert Torres, J.), rendered March 3, 2006, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of imprisonment of 25 years to life, unanimously affirmed.

Defendant's claim that the court failed to respond properly to a jury note (see People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ) is based on facts that are similar to those set forth in People v. Mitchell, 46 A.D.3d 480, 849 N.Y.S.2d 209 [2007] and People v. Johnson, 46 A.D.3d 415, 416-417, 848 N.Y.S.2d 103 [2007].   As in those cases, the circumstances establish that the jury's request for “all the evidence” referred to exhibits and not testimony, so that the court clerk's ministerial compliance with that request, in accordance with the parties' prior stipulation, was proper.

Defendant did not preserve any of his challenges to the prosecutor's summation and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   Nothing in the summation deprived defendant of a fair trial.