In People v. Ramirez, 15 N.Y.3d 824, 909 N.Y.S.2d 1, 935 N.E.2d 791 (2010) as well, the conclusion that there had been no mode of proceedings error rested upon the circumstance that “defense counsel had notice of the contents of the note and the court's response ” (id. at 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791 [emphasis supplied]).Summary of this case from People v. Nealon
No. 207 SSM 40.
Decided September 16, 2010.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 26, 2009. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Edwin Torres, J.), which had convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the first and third degrees, and criminally using drug paraphernalia in the second degree (three counts).
The Appellate Division found that the evidence supported the conclusion that defendant was a participant in a drug-selling operation and a joint possessor of the contraband at issue. Police executing a search warrant found throughout the premises indicia of a large-scale operation. Although nothing was in open view, it was the type of premises where a reasonable jury could conclude that only trusted members of the operation would be permitted to enter. Defendant and his codefendant were the only persons present, and when the police entered defendant attempted to flee and tried to destroy his own cell phone, the records of which ultimately provided evidence of his connection to the codefendant. Moreover, defendant was carrying nearly one thousand dollars in cash and a pager.
The Appellate Division also rejected defendant's assertion that the trial court did not provide defense counsel with notice of a jury note and an opportunity to be heard regarding the court's response.
People v Ramirez, 60 AD3d 560, affirmed.
Schlather, Stumbar, Parks Salk, LLP, Ithaca ( Diane V. Bruns of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City ( Grace Vee of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.  Contrary to defendant's argument, the Appellate Division properly concluded that the verdict was supported by legally sufficient evidence. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have inferred that defendant constructively possessed the drugs and drug paraphernalia located in an apartment in which defendant himself was found ( see generally People v Contes, 60 NY2d 620, 621).
Moreover, although the record is silent as to whether Supreme Court showed the jury note to counsel as required in People v O'Rama ( 78 NY2d 270), defense counsel had notice of the contents of the note and the court's response, and failed to object at that time, when the error could have been cured. Accordingly, defendant's claim is unpreserved for review ( see People v Starling, 85 NY2d 509, 516; see also People v Kadarko, 14 NY3d 426, 429-430).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, in a memorandum.