Opinion
No. 135.
Argued June 3, 2010.
decided June 24, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 4, 2009. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Edwin Torres, J.), which had convicted defendant, upon a jury verdict, of attempted assault in the first degree, criminal possession of a weapon in the second degree, and assault in the second degree.
In a prosecution arising out of an altercation between defendant and the victim, who was ultimately shot, the jury sent the court a note during deliberations requesting clarification of the element of intent for the charge of attempted assault in the first degree. The court replied with a supplemental instruction which included a hypothetical example. Defense counsel excepted to the instruction, asserting that the example was too close to the factual scenario being considered by the jury.
People v Simmons, 66 AD3d 292, affirmed.
Office of the Appellate Defender, New York City ( Valerie A. Koffman, Richard M. Greenberg and Joseph M. Nursey of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City ( Aaron Ginandes and Grace Vee of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed. Although certain phrases in the trial court's supplemental instruction were inartfully worded, we are unpersuaded that the trial court's response to a jury note, which inquired about the element of intent, usurped the role of the jurors. Viewing the problematic language in the broader context of the supplemental instruction and the jury charge as a whole, the court conveyed the proper legal standards and repeatedly advised the jury that it was the exclusive arbiter of the facts.
Order affirmed in a memorandum.