People v Holman

People v Holman 2008 NY Slip Op 00420 [47 AD3d 518] January 24, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

The People of the State of New York, Respondent,
v
Jeffrey Holman, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York City (Risa Gerson of counsel), and Bryan Cave LLP, New York (Kathryn E. Gebert of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered August 22, 2005, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.

It was within the trial court's discretion to permit jurors to submit written questions to witnesses, striking those it deemed improper and posing the rest to the witnesses (People v Miller, 8 AD3d 176 [2004], affd 6 NY3d 295 [2006]; People v Bacic, 202 AD2d 234, 235 [1994], lv denied 83 NY2d 1002 [1994]), and issues relating to jurors' questions are subject to normal preservation requirements (People v Starks, 216 AD2d 120, 121 [1995], affd 88 NY2d 18 [1996]). On appeal, defendant argues that juror-initiated questions in general are improper, and that the particular questions asked here were prejudicial or show that the jury commenced deliberations prematurely. Since defendant consented to both the general procedure and the particular questions, these arguments are expressly waived, and we decline to review them in the interest of justice. As an alternative holding, we also reject these claims on the merits. Concur—Tom, J.P., Saxe, Friedman and Buckley, JJ.