The People, etc., respondent, v. Michael Dell'Aera, appellant. (2011)

Argued—April 26, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered April 14, 2010, convicting him of robbery in the second degree, robbery in the third degree, and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the County Court's jury charge regarding intent is without merit (see CJI2d [NY] Culpable Mental States—Intent).   The County Court was not required to provide the charge in the precise language requested by the defendant (see People v. Samuels, 99 N.Y.2d 20, 25–26;  People v. Dory, 59 N.Y.2d 121, 129;  People v. Maldonado, 127 A.D.2d 855;  People v. Compitiello, 118 A.D.2d 720).   Where, as here, the Trial Judge sufficiently explained all the applicable legal principles to the jury, he was not bound to use the specific language requested (see People v. Maldonado, 127 A.D.2d at 855;  People v. Dory, 59 N.Y.2d at 129).   Furthermore, the County Court's charge did not alter the People's theory as presented in the indictment or the facts as presented at trial (see People v. Charles, 61 N.Y.2d 321, 326–330;  People v. Kaminski, 58 N.Y.2d 886, 887;  People v. Faber, 64 AD3d 788;  People v. Jean, 146 A.D.2d 803, 804, affd 75 N.Y.2d 744).

The defendant's remaining challenge to the adequacy of the County Court's response to a jury note requesting clarification of the concept of reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 71 AD3d 795, 796), and, in any event, is without merit (see People v. Malloy, 55 N.Y.2d 296, 303, cert denied 459 U.S. 847;  People v. Steinberg, 79 N.Y.2d 673, 684;  People v. Chase, 225 A.D.2d 789, 790;  People v. Walton, 220 A.D.2d 548).

COVELLO, J.P., ENG, CHAMBERS and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court