PEOPLE v. JAMES (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of robbery in the second degree (Penal Law § 160.10 [1] ).  Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Sommerville, 159 A.D.3d 1515, 1515–1516, 72 N.Y.S.3d 704 [4th Dept. 2018];  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Contrary to defendant's contention, County Court's handling of two jury notes provides no basis for reversal.  As the People correctly observe, the jury notes at issue related solely to charges of which defendant was acquitted.  Thus, defendant was not prejudiced by any alleged error in the court's handling of those jury notes (see People v. Neree, 142 A.D.3d 1026, 1027, 37 N.Y.S.3d 562 [2d Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016];  see generally People v. Mays, 20 N.Y.3d 969, 970–971, 959 N.Y.S.2d 119, 982 N.E.2d 1252 [2012] ).  Moreover, the court provided the parties with notice of the jury notes and an opportunity to suggest a response (see generally People v. O'Rama, 78 N.Y.2d 270, 276–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ), and defendant was not prejudiced by the fact that the O'Rama steps may have occurred out of sequence (see People v. McMahon, 275 A.D.2d 670, 670, 713 N.Y.S.2d 343 [1st Dept. 2000], lv denied 96 N.Y.2d 761, 725 N.Y.S.2d 288, 748 N.E.2d 1084 [2001];  see also People v. Sykes, 135 A.D.3d 535, 535, 22 N.Y.S.3d 844 [1st Dept. 2016], lv denied 27 N.Y.3d 969, 36 N.Y.S.3d 630, 56 N.E.3d 910 [2016] ).  Finally, defendant's contention that the court erred by marshaling only the evidence introduced by the prosecution during its response to the jury notes is raised for the first time in his reply brief and is thus not properly before us (see People v. Daigler, 148 A.D.3d 1685, 1686, 51 N.Y.S.3d 278 [4th Dept. 2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ).