Opinion
09-30-2015
The PEOPLE, etc., respondent, v. Jason McDONALD, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se.Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered October 5, 2010, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was deprived of the effective assistance of counsel. There is no merit to this contention, as the record reveals that the defendant received meaningful representation (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
Contrary to the defendant's contention, raised in his pro se supplemental brief, the Supreme Court's failure to adhere precisely to the requirements of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; see CPL 310.30 in responding to a jury note requesting readbacks of two witnesses' testimony did not constitute a mode of proceedings error (see People v. Alcide, 21 N.Y.3d 687, 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 ; People v. Thomas, 115 A.D.3d 995, 996, 982 N.Y.S.2d 584 ; People v. Gerrara, 88 A.D.3d 811, 812, 930 N.Y.S.2d 646 ; cf. People v. Morris, 120 A.D.3d 835, 836, 991 N.Y.S.2d 454, lv. granted 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 ; People v. Nealon, 116 A.D.3d 886, 886–888, 985 N.Y.S.2d 91, lv. granted 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 ), and required preservation (see CPL 470. 05[2]; People v. Cosme, 99 A.D.3d 940, 941, 952 N.Y.S.2d 269 ; People v. Gerrara, 88 A.D.3d at 812–813, 930 N.Y.S.2d 646 ). The defendant failed to preserve his claim of error for appellate review (see People v. Alcide, 21 N.Y.3d at 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; People v. Ramirez, 15 N.Y.3d 824, 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 ). In any event, the defendant suffered no discernible prejudice from the court's handling of the note (see People v. Battle, 15 A.D.3d 413, 414, 790 N.Y.S.2d 477 ; People v. Tinner, 209 A.D.2d 457, 458, 618 N.Y.S.2d 110 ).
The defendant's contention that the Supreme Court improperly sentenced him based on a materially untrue assumption is unpreserved for appellate review (see CPL 470.05[2] ; People v. Rivera, 124 A.D.3d 917, 918, 998 N.Y.S.2d 898 ). In any event, the contention is without merit, as the court's stated grounds for the sentence were supported by the trial evidence (see People v. Stewart, 95 A.D.3d 1363, 1365, 943 N.Y.S.2d 302 ; People v. Scallero, 122 A.D.2d 350, 352, 504 N.Y.S.2d 318 ; cf. People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 ; People v. Metellus, 46 A.D.3d 578, 579, 846 N.Y.S.2d 623 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention, raised in his pro se supplemental brief, is without merit.
LEVENTHAL, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.