PEOPLE v. PHILYAW (2023)

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered December 13, 2018, convicting defendant, after a jury trial, of criminal possession of stolen property in the fifth degree, and sentencing him to a term of one year, unanimously affirmed.

The court meaningfully responded to a jury note by rereading the elements of the crime and reminding the jury to avoid speculation and render a verdict based solely upon the evidence (see People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992];  People v. Malloy, 55 N.Y.2d 296, 301, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982]).  The additional instruction tracked the applicable Penal Law provisions and was sufficient to address the concern that the note appeared to be raising as to the intent element of criminal possession of stolen property (see People v. Lewis, 5 N.Y.3d 546, 551, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005]).  Nor has defendant demonstrated that he was prejudiced by any claimed error in the court's response (see People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987]).  The court informed the jury that it could seek additional clarification if rereading the charge was insufficient, and the jury did not send any further notes regarding that charge (see People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984];  People v. Stokes, 149 A.D.3d 510, 511, 52 N.Y.S.3d 326 [1st Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264[2017]).