The People, etc., respondent, v. Kourtney Feurtado, appellant.

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

The People, etc., respondent, v. Kourtney Feurtado, appellant.

2011–06500 (Ind.No. 10396/09)

Decided: December 26, 2013

WILLIAM F. MASTRO, J.P. MARK C. DILLON DANIEL D. ANGIOLILLO CHERYL E. CHAMBERS, JJ. Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Matthew J. Benjamin of counsel), for respondent.

Argued—September 13, 2013

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered June 13, 2011, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to establish that he was prejudiced by the loss of certain Rosario material (see People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866), and thus, the Supreme Court properly declined to give an adverse inference charge with respect to the content of that material (see CPL 240.75;  People v. Brown, 71 AD3d 1043;  People v. DiFiore, 46 AD3d 835;  Matter of Benjamin J., 10 AD3d 608).

The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial when the Supreme Court participated in the readbacks of certain testimony to the jury by assuming the role of a witness or inquiring counsel (see CPL 470.05[2];  People v. Alcide, 21 NY3d 687).   In any event, under the circumstances of this case, any error the court may have committed by participating in the readbacks was harmless and did not deprive the defendant of a fair trial (see People v. Crimmins, 36 N.Y.2d 230, 237;  People v. Facey, 104 AD3d 788, 789).

The defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712;  People v. Baldi, 54 N.Y.2d 137, 147).

The defendant's contention that the Supreme Court should have afforded him youthful offender treatment is without merit (see CPL 720.10[2][a][ii];  [3] [i];  cf.  People v. Tyquan S., 54 AD3d 1062).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

MASTRO, J.P., DILLON, ANGIOLILLO and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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