State of New York                                              MEMORANDUM
Court of Appeals                                          This memorandum is uncorrected and subject to
                                                        revision before publication in the New York Reports.




 No. 22 SSM 27
 The People &c.,
         Respondent,
      v.
 Zhakariyya Muhammad,
         Appellant.




 Submitted by Mark Zeno, for appellant.
 Submitted by John T. Hughes, for respondent.




 MEMORANDUM:

       The order of the Appellate Division should be affirmed.

       “[T]he question of a defendant’s implied consensual relinquishment or waiver of

 important procedural rights is a factual question in which the findings of the lower court

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must be upheld if there is any support in the record for that conclusion” (People v Brown,

90 NY2d 872, 874 [1997] [internal quotation marks omitted]). Here, the record supports

the Appellate Division’s finding that defense counsel impliedly consented to the

submission of written copies of the court’s entire final instructions to the jury. Defense

counsel not only failed to object when the copies were distributed or while the judge was

delivering the instructions, which discussed the written copies, but also verbally confirmed

to the court, outside the hearing of the jury, that he had no exception to the final jury

instructions, which provided that the jurors may take their written copies with them to

deliberate.

         We reject defendant’s contentions that the trial court abused its discretion by

denying his motion for a mistrial, coerced the verdict, or otherwise improperly responded

to the jury’s final note. Under the circumstances of this case, where the jury requested

additional time to deliberate because it had reached a “critical juncture” in its deliberations,

the trial court’s granting of the request constituted a meaningful response.

         Defendant’s remaining contention is not preserved.

*    *        *   *    *     *     *     *     *     *     *    *     *     *     *     *     *

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a
memorandum. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and
Feinman concur.


Decided January 9, 2020




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