People v Fleming

People v Fleming 2017 NY Slip Op 06804 Decided on September 29, 2017 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
1080 KA 15-00840

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

JOHN FLEMING, DEFENDANT-APPELLANT.

SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered April 21, 2015. The judgment convicted defendant, upon a jury verdict, of predatory sexual assault against a child and sexual abuse in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of predatory sexual assault against a child (Penal Law

§ 130.96) and sexual abuse in the second degree (§ 130.60 [2]), defendant contends that County Court failed to comply with the requirements of CPL 310.30, as set forth in People v O'Rama (78 NY2d 270, 276-277), in responding to an inquiry by the jury during deliberations. We conclude that defendant failed to preserve his contention for our review (see generally CPL 470.05 [2]), and we reject his assertion that preservation was not required under these circumstances (see People v Williams, 142 AD3d 1360, 1362, lv denied 28 NY3d 1128). It is well settled that "[c]ounsel's knowledge of the precise content of the [jury] note . . . removes the claimed error from the very narrow class of mode of proceedings errors for which preservation is not required" (People v Morris, 27 NY3d 1096, 1098) and, here, the court "read the precise content of the note into the record in the presence of counsel, defendant, and the jury" (id. at 1097; see People v Nealon, 26 NY3d 152, 154). We likewise reject defendant's further contention that the court's response to a juror's one-word inquiry was a mode of proceedings error. "Defense counsel was aware of the content of the juror['s] comment[], which [was] made out loud in open court, and did not object to anything the judge or prosecutor did in response" (People v Mays, 20 NY3d 969, 971; see People v Mostiller, 145 AD3d 1466, 1467-1468, lv denied 29 NY3d 951). Therefore, the court did not violate its core O'Rama responsibilities, and preservation was required (see Mostiller, 145 AD3d at 1467-1468). We decline to exercise our power to review defendant's O'Rama contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Entered: September 29, 2017

Mark W. Bennett

Clerk of the Court