Opinion
04-07-2015
The PEOPLE of the State of New York, Respondent, v. Jesus ALEJANDRO, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 28, 2011, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 23 years to life, unanimously affirmed.
Defendant's challenge to the court's jury instruction concerning the requirement of unanimity is unpreserved. We do not find any mode-of-proceedings error exempt from preservation requirements (see People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find no basis for reversal, because the court, which followed the Criminal Jury Instructions, sufficiently conveyed to the jury the principle that unanimity was required in order to reject defendant's extreme emotional disturbance defense. The absence of an exception to the charge did not deprive defendant of effective assistance of counsel, since nothing in the instruction caused defendant any prejudice in light of the charge as a whole (see People v. Parra, 58 A.D.3d 479, 870 N.Y.S.2d 335 [1st Dept.2009], lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ).
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, RICHTER, KAPNICK, JJ., concur.