People v. Hofaker

Crew III, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered November 30, 1999, upon a verdict convicting defendant of the crimes of arson in the second degree and arson in the third degree. Defendant was indicted in May 1999 and charged with two [613] counts of arson and one count of willfully setting forest land on fire. Following trial and after submission of the case to the jury, County Court was advised that the jury had reached a verdict with regard to the first two counts of the indictment— arson in the second and third degrees—but requested further instructions and a reading of evidence with regard to the remaining count. Rather than complying with the jury’s request, the court took a partial verdict as to the first and second counts of the indictment and, upon the People’s motion, dismissed the third count thereof. Defendant thereafter was sentenced as a second felony offender to a determinate term of 12 years in prison on his conviction of the first count of the indictment and to an indeterminate term of 3 to 6 years as to the second count of the indictment, said sentences to run consecutively to one another. Defendant now appeals. The various arguments raised by defendant do not warrant extended discussion. As for defendant’s contention that County Court improperly' accepted a verdict on the first two counts of the indictment without first responding to the jury’s request for further legal instructions and a read back, the record makes plain that the jury’s request in this regard related only to the third count of the indictment. In view of the fact that such count was dismissed, the court’s failure to comply with the jury’s request cannot be said to have seriously prejudiced defendant (see, People v Agosto, 73 NY2d 963, 966; People v Stewart, 210 AD2d 161, lv denied 85 NY2d 980). Nor are we persuaded that there was legally insufficient evidence to support the underlying convictions or that such were against the weight of the evidence. Based upon our review of the record as a whole, we find no basis upon which to disturb the jury’s verdict. Defendant’s remaining contentions have been examined and found to be lacking in merit. Cardona, P.J., Spain, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed.