| People v Alejandro |
| 2015 NY Slip Op 02906 |
| Decided on April 7, 2015 |
| Appellate Division, First 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 April 7, 2015
Friedman, J.P., Acosta, Moskowitz, Richter, Kapnick, JJ.
14723 2186/08
v
Jesus Alejandro, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 28, 2011, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 23 years to life, unanimously affirmed.
Defendant's challenge to the court's jury instruction concerning the requirement of unanimity is unpreserved. We do not find any mode-of-proceedings error exempt from preservation requirements (see People v Thomas, 50 NY2d 467, 472 [1980]), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find no basis for reversal, because the court, which followed the Criminal Jury Instructions, sufficiently conveyed to the jury the principle that unanimity was required in order to reject defendant's extreme emotional disturbance defense. The absence of an exception to the charge did not deprive defendant of effective assistance of counsel, since nothing in the instruction caused defendant any prejudice in light of the charge as a whole (see People v Parra, 58 AD3d 479 [1st Dept 2009], lv denied 12 NY3d 820 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 7, 2015
CLERK