| People v Lewis |
| 2010 NY Slip Op 07669 [77 AD3d 579] |
| October 28, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EugeneLewis, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered December 11,2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the thirddegree, and sentencing him, as a second felony drug offender, to a term of 3½ years, unanimouslyreversed, on the law, and the matter remanded for a new trial.
The record establishes that the court received a note from the jury requesting substantive legalinstructions on the elements of the charged crimes. Without reading the note into the record, eitherverbatim or otherwise, the court responded with substantive instructions. There is no indication in therecord that the attorneys ever saw the note, knew of its contents, knew of the court's proposedinstructions, or had an opportunity for input into the court's response.
In the absence of record proof that the trial court complied with its core responsibilities under CPL310.30 to give meaningful notice to counsel following a substantive juror inquiry, a mode ofproceedings error occurred requiring reversal (People v Tabb, 13 NY3d 852 [2009]; People v Kisoon, 8 NY3d 129, 135[2007]; People v O'Rama, 78 NY2d 270, 277 [1991]; cf. People v Ramirez, 15 NY3d 824 [2010]). While "some departuresfrom the procedures outlined in O'Rama may be subject to rules of preservation"(Kisoon, 8 NY3d at 135; see also People v Donoso, — AD3d —, 2010NY Slip Op 07245 [2010]), a failure to fulfill the court's core responsibility on the record is not, andthus defense counsel's failure to object is of no consequence (cf. e.g. People v Kadarko, 14 NY3d 426[2010]; People v Starling, 85 NY2d 509 [1995]).
It is possible that the court showed the note to counsel and that colloquy thereon occurred off therecord. The record, however, lacks any indication that such events took place. Accordingly, we haveno alternative but to reverse (cf. People vFishon, 47 AD3d 591 [2008], lv denied 10 NY3d 958 [2008] [record demonstratedexistence of unrecorded colloquy concerning note]).
Contrary to the People's argument, neither the note nor the court's response was limited to acharge of which defendant was acquitted.
In view of this determination, we find it unnecessary to reach any other issues.Concur—Friedman, J.P., Nardelli, DeGrasse, Freedman and Manzanet-Daniels, JJ.