THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BENJAMIN RIVERA, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

KA 07-00779

Decided: March 25, 2011

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ. MULDOON & GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT. BENJAMIN RIVERA, DEFENDANT-APPELLANT PRO SE. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Monroe County Court (Alex R. Renzi, J.), entered March 14, 2007.   The order denied defendant's motions pursuant to CPL 440.10 to vacate the judgment convicting defendant of murder in the second degree.

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

Addressing first appeal No. 2, we affirm the judgment.   Defendant contends that, in its jury instructions, the trial court misstated an element of felony murder such that reversal is required.   The felony murder statute provides in relevant part that “[a] person is guilty of murder in the second degree when ․ [, a]cting either alone or with one or more other persons, he commits or attempts to commit [an enumerated felony], and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants” (Penal Law § 125.25[3] [emphasis added] ).   In its main charge and its supplemental instructions, the trial court erroneously used the phrase “in the course of or in furtherance of such crime,” thereby replacing the term “and” with “or.”   Defendant, however, failed to preserve that contention for our review because he never objected to the error (see People v. Griffin, 48 AD3d 1233, 1236, lv denied 10 NY3d 840).   Defendant further contends that the trial court violated CPL 310.30 by responding to a question from a juror without first consulting with counsel.   Because defense counsel was aware of both the inquiry from the juror and the trial court's response thereto, she was required to object to the trial court's procedure in responding to the question in order to preserve defendant's contention for our review, and she failed to do so (see People v. Ramirez, 15 NY3d 824, 825-826;  People v. Peller, 8 AD3d 1123, 1123-1124, lv denied 3 NY3d 679).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).

Patricia L. Morgan

Clerk of the Court