| People v Smith |
| 2009 NY Slip Op 09500 [68 AD3d 1021] |
| December 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shaun Smith, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Jennifer Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered November 20, 2007, convicting him of criminal possession of a controlled substance inthe fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and a new trial is ordered.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7 NY3d 633 [2006]).
However, the trial court failed to meaningfully respond to a jury note seeking the testimonyof two of the police officers who testified at the trial. The note requested the testimony of thepolice officers "pertaining to how long they were together" prior to an encounter with anunidentified woman who, according to the arresting officer, informed them that the defendantwas in possession of cocaine. The trial court determined, over the defendant's objection, thatonly one of the officers had testified regarding the issue encompassed by the jury note. However,the arresting officer had testified that he was "by [him]self" prior to the encounter with theunidentified woman. Under the circumstances of this case, the trial court's failure to provide thejury with this additional testimony during the read back seriously prejudiced the defendant andconstituted reversible error (see CPL 310.30; People v Caisson, 8 NY3d 129,134 [2007]; People v O'Rama, 78 NY2d 270, 277 [1991]; People v Ageist, 73NY2d 963, 966 [1989]; People v Laired, 70 NY2d 428, 435 [1987]; People vHamilton, 140 AD2d 1001 [1988]; see also People v Tabb, 13 NY3d 852 [2009]).
Additionally, although not preserved for appellate review because no objection was raised(see CPL 470.05 [2]; People v Baldwin, 272 AD2d 476 [2000]), under thecircumstances of this case, reversal of the defendant's conviction in the exercise of our interest ofjustice jurisdiction and a new trial are required because the trial court seriously prejudiced thedefendant by completely failing to respond to another jury note requesting a readback of thecross-examination testimony of the arresting officer with respect to the issue of whether he"planted evidence" (see People v Lourido, 70 NY2d at 435; People v Tavares,212 AD2d 646 [1995]; People v Colon, 151 AD2d 146, 152 [1989], cert denied508 US 923 [1993]). Skelos, J.P., Eng, Belen and Austin, JJ., concur.