PEOPLE v. BOBADILLA

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

The PEOPLE, etc., Respondent, v. Rafael BOBADILLA, Appellant.

Decided: October 26, 1998

Before ROSENBLATT, J.P., and COPERTINO, SULLIVAN and ALTMAN, JJ. Maria Barous Hartofilis, Astoria, for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Sharon Y. Brodt, and Stephen A. Malito, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered October 1, 1996, convicting him of robbery in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The People were properly sanctioned for their delay in turning over the complainant's Grand Jury testimony by permitting the defendant to recall that witness for further cross-examination without any redirect examination (see People v. Hunt, 244 A.D.2d 956, 665 N.Y.S.2d 170;  see also, People v. Turcios-Umana, 153 A.D.2d 707, 544 N.Y.S.2d 682).   Dismissal was not warranted, since the delay did not substantially prejudice the defendant (see People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134;   People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011;  People v. Leon, 186 A.D.2d 587, 588 N.Y.S.2d 384).

 The defendant further contends that the trial court committed reversible error when it allowed the jury to continue to deliberate while a readback was being prepared in response to a jury note.   This claim is unpreserved for appellate review inasmuch as the defendant raised no objection to the procedure used by the court (see, CPL 470.05[2];  People v. Starling, 85 N.Y.2d 509, 626 N.Y.S.2d 729, 650 N.E.2d 387).   In any event, reversal is not warranted.   While awaiting the readback, the jury sent out the second note stating that it had reached a verdict.   Before taking the verdict, the court gave the jury the opportunity to hear the requested testimony.   By declining the court's offer, the jury foreperson indicated that the jurors had resolved the factual dispute by themselves and no longer needed to hear that testimony (see People v. Sanders, 227 A.D.2d 506, 643 N.Y.S.2d 365;  People v. Chandler, 110 A.D.2d 970, 487 N.Y.S.2d 887).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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