The People, etc., respondent, v. Otis Bryant, appellant. (2011)

Argued-January 25, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered November 10, 2008, convicting him of robbery in the second degree (two counts), criminal possession of stolen property in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court's procedure for handling two jury notes violated the procedure enunciated by the Court of Appeals in People v. O'Rama (78 N.Y.2d 270, 277-278) is unpreserved for appellate review (see People v. Ramirez, 15 NY3d 824;  People v. Mateo, 53 AD3d 1111, 1112;  People v. Battle, 15 AD3d 413, 414;  People v. Mitchell, 2 AD3d 145, 148;  People v. Neal, 268 A.D.2d 307;  People v. Burgos, 248 A.D.2d 547), and we decline to reach it in the exercise of our interest of justice jurisdiction.   Since the jury merely requested readbacks of certain testimony and of the definitions of certain crimes, and to be provided with certain evidence, the alleged error did not constitute a mode of proceedings error which would obviate the preservation requirement (see People v. Starling, 85 N.Y.2d 509;  cf.  People v. Cook, 85 N.Y.2d 928).

Additionally, contrary to the defendant's contention, the fact that his codefendant received a lesser sentence following a plea of guilty does not render the defendant's sentence excessive under the circumstances of this case (see People v. Murad, 55 AD3d 754, 756;  People v. Jones, 4 AD3d 796, 797;  cf.  People v. Versaggi, 296 A.D.2d 429, 430).

DILLON, J.P., COVELLO, FLORIO and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court