Opinion
3391, 4888/12.
03-15-2017
The PEOPLE of the State of New York, Respondent, v. Jimmy TORRES, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel) and Jenner & Block LLP, New York (Brian J. Fischer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel) and Jenner & Block LLP, New York (Brian J. Fischer of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
SWEENY, J.P., RENWICK, MAZZARELLI, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Daniel McCullough, J.), rendered April 22, 2013, convicting defendant, after a jury trial, of auto stripping in the second degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence supports the inference that defendant was the person who broke the window of the victim's car.
The only one of defendant's challenges to the prosecutor's summation that is even arguably preserved is his claim that the prosecutor mischaracterized certain evidence relating to a car alarm. However, we find that any minor misstatement in this regard was not prejudicial. Defendant's remaining claims regarding the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The remarks were fair responses to defense counsel's summation arguments and were based on reasonable inferences drawn from the evidence, and there was nothing so egregious as to warrant a new trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
There was no mode of proceedings error regarding a note from the deliberating jury requesting to see photographs that had been received in evidence. At the outset of deliberations, the court made the routine and unremarkable statement that the attorneys had consented to the exhibits being delivered to the jury in the attorneys' absence. If defense counsel had disagreed with the court's statement, she had the opportunity to say so, and her silence constituted advance consent, satisfying any requirement of an opportunity to be heard. Moreover, the note requesting photographs came only about 10 minutes later, and it is unclear whether the attorneys had even left the courtroom. In any event, delivery to the jury room of requested exhibits in evidence was ministerial (see People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 [1996] ; People v. Jackson, 105 A.D.3d 607, 608, 963 N.Y.S.2d 254 [1st Dept.2013]. lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ; People v. Ziegler, 78 A.D.3d 545, 911 N.Y.S.2d 331 [1st Dept.2010], lv. denied 16 N.Y.3d 838, 921 N.Y.S.2d 203, 946 N.E.2d 191 [2001] ).