PEOPLE v. JESURUM (2024)

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered September 28, 2022, convicting defendant, after a jury trial, of two counts of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of five years, unanimously affirmed.

Even assuming defendant preserved his objection to the court's supplemental instruction, we find that the court responded meaningfully to the jury's request for further instruction (see People v. Almodovar, 62 N.Y.2d 126, 131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984]).

Defendant's argument regarding an alleged variance between the indictment and the trial evidence is also unpreserved, and we decline to address it in the interest of justice.  As an alternative holding, we find no material variance that would require reversal.

Defendant further did not preserve his claim that the court's refusal to instruct the jury that law-abiding citizens could lawfully carry firearms for the purpose of self-defense, in accordance with New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), violated his rights to a fair trial, to due process, and to present a defense.  We decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits, as Bruen does not support the requested charge.

The challenged portions of the prosecutor's opening statement and summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motions made in regard to these matters.  To the extent that any aspects of the prosecutor's remarks could be viewed as improper, the court's curative instructions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981]).