PEOPLE v. RIVERA

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose RIVERA, a/k/a A. Ramus, a/k/a Tiote Ortiz, Defendant-Appellant.

Decided: December 23, 1997

Before MURPHY, P.J., and MILONAS, WALLACH, RUBIN and MAZZARELLI, JJ. Jean Joyce, for respondent. Dawn E. Scott, for defendant-appellant.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered September 11, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and convicting her, upon her plea of guilty, of violation of probation, and sentencing her, as a second felony offender, to two concurrent terms of 6 to 12 years, concurrent with a term of 3 1/2 to 7 years for violation of probation, unanimously affirmed.

Defendant's claim of error is unpreserved since defense counsel and defendant were present when the court read the jury notes into the record, but no request was made for a preview of the court's intended responses or any opportunity to help formulate such responses (see, People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;  People v. DeRosario, 81 N.Y.2d 801, 803, 595 N.Y.S.2d 372, 611 N.E.2d 273;  People v. Martinez, 225 A.D.2d 474, 639 N.Y.S.2d 380, lv. denied 88 N.Y.2d 989, 649 N.Y.S.2d 396, 672 N.E.2d 622).   Furthermore, defendant failed to object to the court's responses to the notes from individual jurors and therefore defendant's claim that the court responded to them inappropriately is unpreserved, and we decline to review it in the interest of justice (People v. Jackson, 209 A.D.2d 247, 248, 618 N.Y.S.2d 340, lv. denied 85 N.Y.2d 974, 629 N.Y.S.2d 734, 653 N.E.2d 630;  People v. Almodovar, 196 A.D.2d 718, 601 N.Y.S.2d 914, lv. denied, 82 N.Y.2d 890, 610 N.Y.S.2d 157, 632 N.E.2d 467, cert. denied 511 U.S. 1131, 114 S.Ct. 2143, 128 L.Ed.2d 871).   Were we to review it, we would find that the court responded appropriately to both notes and that the notes did not suggest that either of the jurors possessed a state of mind that would prevent such juror from rendering an impartial verdict (People v. Rodriguez, 71 N.Y.2d 214, 219, 524 N.Y.S.2d 422, 519 N.E.2d 333).

MEMORANDUM DECISION.