        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1023
KA 14-01612
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JIBRAUN M. MOSTILLER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered July 16, 2014. The judgment convicted
defendant, upon a jury verdict, of burglary 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 burglary in the second degree (see Penal Law § 140.25 [2]),
defendant contends that Supreme 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 certain inquiries made by the jury. We
conclude that defendant failed to preserve his contention for our
review (see generally CPL 470.05 [2]).

     During deliberations, the jury issued a note in which it
requested a readback of certain testimony and, after the court read
the note into the record and complied with the request, one of the
jurors sought permission to ask a question. The court permitted the
juror to ask the question, without objection from defense counsel.
After clarifying the question with the juror and the foreperson, who
posed an additional question, the court asked counsel if they wished
to have the jurors put their questions into a note. Defense counsel
indicated that he did not, because the jurors’ inquiries were on the
record. The court nevertheless directed the foreperson to put the
jury’s inquiries in writing. After receiving the written note, the
court read it into the record outside the presence of the jury,
allowed counsel to inspect it, and then responded to the note. On
appeal, defendant contends that the court committed mode of
proceedings errors by allowing the jurors to make oral requests and
responding to those requests before they were put into writing, and
that the court erred in the manner in which it responded to the oral
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                                                         KA 14-01612

requests.

     “In People v Nealon (26 NY3d 152 [2015]), [the Court of Appeals]
reiterated that a court complies with its responsibility to provide
counsel with meaningful notice of a substantive jury inquiry by
reading the precise content of the note into the record in the
presence of counsel, defendant, and the jury before providing a
response, even if the court departs from the O’Rama procedure . . . by
failing to discuss the note or the court’s intended response with
counsel before recalling the jury into the courtroom . . . That
holding was based upon [the Court’s] precedent requiring preservation
when the trial court departs from the O’Rama procedure but counsel
nevertheless has meaningful notice of the jury note” (People v Mack,
27 NY3d 534, 539). Thus, “[t]he only errors that require reversal in
the absence of preservation are those that go to the trial court’s
‘core responsibilities’ under CPL 310.30, such as giving notice to
defense counsel and the prosecutor of the contents of a jury note”
(People v Kahley, 105 AD3d 1322, 1323, quoting People v Tabb, 13 NY3d
852, 853). Here, defense counsel was present in court when the jurors
made their oral requests, and defense counsel acceded to the procedure
used by the court. Additionally, the court directed the jury to
submit its questions in the form of a jury note, read the note into
the record in the presence of defense counsel, and permitted defense
counsel to inspect it before responding. Consequently, we conclude
that the court did not violate its core O’Rama responsibilities (see
People v Barnes, 139 AD3d 1371, 1372, lv denied 28 NY3d 926) and,
therefore, preservation was required (see People v Brito, 135 AD3d
627, 628-629, lv denied 27 NY3d 1066; People v Simmons, 97 AD3d 842,
843, lv denied 20 NY3d 935; People v Peller, 8 AD3d 1123, 1123-1124,
lv denied 3 NY3d 679). 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]).

     Contrary to defendant’s further contention, the court properly
admitted evidence that, contemporaneously with the commission of the
crime herein, a screen had been pried off of a window of the house
adjacent to the scene of the crime. It is well settled that “evidence
relevant to prove some fact in the case, other than the defendant’s
criminal propensity, is not rendered inadmissible simply because it
may also reveal that the defendant has committed other crimes” (People
v Allweiss, 48 NY2d 40, 46-47; see People v Molineux, 168 NY 264, 291-
294). Therefore, “evidence of uncharged crimes may be relevant to
show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan,
or (5) identity of the defendant” (People v Alvino, 71 NY2d 233, 242),
and “[i]t has long been settled that the Molineux rule contains an
‘exception thereto [ ] that permits such evidence when the
transactions in respect to which evidence was given were all
intimately connected in point of time, place[,] and circumstance with
that for which the accused was indicted, so that they formed a
continuous series of transactions, each throwing light upon the other,
upon the question of knowledge, intent, and motive’ ” (People v
Larkins, 128 AD3d 1436, 1439, lv denied 27 NY3d 1001). Based on that
well-settled law, we agree with the People that the evidence, which
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                                                            KA 14-01612

circumstantially established that defendant attempted to enter the
neighboring house unlawfully at approximately the same time of the
commission of the crime herein, was properly admitted to show
defendant’s intent, lack of mistake, and motive with respect to the
crime herein (see People v Davis, 166 AD2d 928, 929, lv denied 77 NY2d
960).

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction
inasmuch as his “motion for a trial order of dismissal was not
specifically directed at the same alleged shortcoming[s] in the
evidence raised on appeal” (People v Brown, 96 AD3d 1561, 1562, lv
denied 19 NY3d 1024 [internal quotation marks omitted]; see People v
Abon, 132 AD3d 1235, 1235-1236, lv denied 27 NY3d 1127; see generally
People v Gray, 86 NY2d 10, 19). In any event, inasmuch as there is a
“valid line of reasoning and permissible inferences” that could lead
reasonable persons to the conclusion reached by the jury based on the
evidence presented at trial (People v Bleakley, 69 NY2d 490, 495), we
conclude that defendant’s contention is without merit (see People v
Maier, 140 AD3d 1603, 1603-1604, lv denied 28 NY3d 933; People v
Pierce, 106 AD3d 1198, 1199-1201). Furthermore, viewing the evidence
in light of the elements of burglary in the second degree as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).

     Finally, the sentence is not unduly harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
