Opinion
02-01-2017
The PEOPLE, etc., respondent, v. Kenneth NEALON, appellant.
Lynn W.L. Fahey, New York, NY (Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Christopher J. Blira–Koessler, and Jessica L. Zellner of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Christopher J. Blira–Koessler, and Jessica L. Zellner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered September 21, 2009, convicting him of robbery in the first degree, robbery in the second degree, assault in the second degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. By decision and order dated April 16, 2014, this Court reversed the judgment, on the law, and ordered a new trial (see People v. Nealon, 116 A.D.3d 886, 985 N.Y.S.2d 91 ). On October 27, 2015, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of the facts and issues raised but not determined on the appeal to this Court (see People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). Justice Maltese has been substituted for former Justice Lott (see 22 NYCRR 670.1 [c] ).
ORDERED that, upon remittitur from the Court of Appeals, the judgment is affirmed.
The defendant's contention that the Supreme Court's handling of certain jury notes violated the procedure set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review (see People v. Morris, 27 N.Y.3d 1096, 1098, 36 N.Y.S.3d 52, 55 N.E.3d 1025 ; People v. Nealon, 26 N.Y.3d 152, 161–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). Under the circumstances, we decline to reach this contention in the exercise of our interest of justice jurisdiction (see People v. Bedeau, 129 A.D.3d 853, 853, 9 N.Y.S.3d 883 ).
The defendant's contention that the prosecutor made improper comments during summation which deprived him of a fair trial is also unpreserved for appellate review (see People v. Rodney, 96 A.D.3d 880, 946 N.Y.S.2d 245 ; People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244 ; People v. Livigni, 288 A.D.2d 323, 324, 732 N.Y.S.2d 875 ), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. Jones, 139 A.D.3d 878, 880, 31 N.Y.S.3d 191 ; People v. Ellis, 133 A.D.3d 777, 778, 19 N.Y.S.3d 752 ).
RIVERA, J.P., MILLER, HINDS–RADIX and MALTESE, JJ., concur.