| People v Pichardo |
| 2010 NY Slip Op 09660 [79 AD3d 1649] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Carlos Pichardo, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Dennis M. Kehoe, A.J.),rendered June 4, 2007. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the first degree and criminal possession of a controlledsubstance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant previously was convicted after a jury trial of criminal possessionof a controlled substance in the first degree (Penal Law § 220.21 [1]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]), and we reversedthat judgment of conviction based on a Bruton violation (People v Pichardo, 34 AD3d 1223[2006], lv denied 8 NY3d 926 [2007]). Defendant now appeals from a judgmentconvicting him of the same crimes following a second jury trial.
We reject defendant's contention that Supreme Court erred in allowing court personnel tocommunicate with the jury outside defendant's presence in two instances. The first instanceoccurred following the opening statements of the People and defense counsel. A court officerinformed the court that a juror had asked the court officer whether the court "could give theapplicable law prior to the trial beginning." In the presence of the attorneys and defendant, thecourt stated that it did not intend to do so, but invited comments from the attorneys beforeinforming the jury of its decision. Defense counsel stated that he had no objections to the court'sintended response and declined the court's offer to address the court officer to whom the jurorhad spoken. Even assuming, arguendo, that defendant was not required to preserve for our reviewhis present challenge to that communication between the court officer and the juror (cf. People v Kadarko, 14 NY3d426, 429-430 [2010]; People v Starling, 85 NY2d 509, 516 [1995]; People v Donoso, 78 AD3d 129,133 [2010]), and further assuming, arguendo, that CPL 310.30 applies under such circumstances(cf. People v Hameed, 88 NY2d 232, 239-241 [1996], cert denied 519 US 1065[1997]), we discern no error in the court's handling of this matter. Although defendant contendsthat the court officer improperly "spoke" to the juror, nothing in CPL 310.30 requires that thejuror's request or the court's response to that request be in writing (see People v O'Rama,78 NY2d 270, 277-278 [1991]). The court officer did not respond to the juror but, rather, [*2]simply informed the court of the juror's request. The court thenproperly notified defendant of the juror's request and gave defendant and his attorney therequisite opportunity to be heard before responding to the juror's request (see id. at276-277).
The second instance in which court personnel communicated with the jury outsidedefendant's presence occurred during jury deliberations, when the jury handed a court officer awritten note requesting, inter alia, "interpret notes written in Spanish." The court officer, withoutnotifying the court, told the jury that he "wasn't exactly sure what that meant." The jury then sentout a second note, requesting that two notes attached to the jury's note be translated. The courtdiscussed that request with the attorneys in defendant's presence and indicated that it intended todeny the request. Defendant did not object to the court officer's initial response to the jury or tothe court's intended response to the second note. Defendant now contends (hereafter, theO'Rama contention) that reversal is required because neither he nor his attorney wasnotified of the contents of the first note or was permitted to respond to it before the court officersought clarification from the jury (see id.). Defendant also contends (hereafter, theAhmed contention) that reversal is required because the court officer engaged in ajudicial function outside defendant's presence (see People v Ahmed, 66 NY2d 307[1985], rearg denied 67 NY2d 647 [1986]).
Although defendant concedes that he failed to preserve either of those contentions for ourreview, he nevertheless contends that preservation is not required because the alleged errorsimplicate the organization of the court or the mode of proceedings prescribed by law. We rejectthat contention. With respect to defendant's O'Rama contention, we note that, "[i]nO'Rama and its progeny, the Court of Appeals has made it abundantly clear that it wasnot the Court's intention 'to mandate adherence to a rigid set of procedures, but rather [the Courtintended] to delineate a set of guidelines calculated to maximize participation by counsel at atime when counsel's input is most meaningful, i.e., before the court gives its formal response' "(Donoso, 78 AD3d at 132, quoting O'Rama, 78 NY2d at 278). It is wellestablished that "a defendant need not object to the trial court's improper handling of a jury notein order to challenge the court's procedure on appeal if the court's actions had the effect of'preventing defense counsel from participating meaningfully in this critical stage of the trial' "(id. at 133). "[T]he Court of Appeals has held[, however,] that when defense counsel isgiven notice of the substance of the contents of a jury note and has knowledge of the substance ofthe court's intended response, counsel must object in order to preserve the claim for appellatereview" (id.; see Kadarko, 14 NY3d at 429-430; Starling, 85 NY2d at516; cf. People v Kisoon, 8 NY3d129, 135 [2007]). Here, defense counsel was notified of the contents of both notes and wasgiven an opportunity to participate meaningfully before the court gave its formal response to thejury. We thus conclude that defendant was required to preserve the O'Rama contention.
We likewise conclude that defendant was required to preserve the Ahmed contentionfor our review. In People v Kelly (5NY3d 116, 118 [2005]), a court officer, without the knowledge of or permission from thecourt, "agreed to the jury's request that he place the bayonet [in question] in his waistband (as thedefendant had worn it) and draw it from its sheath." The jurors then asked whether the bayonethad slid easily out of the sheath, and he replied in the affirmative (id.). Defendant and hisattorney were subsequently notified of that event, and the court instructed the jury to disregardthe demonstration and the court officer's answer to the jury's question (see id.). No furtherobjections were made at that time, but the court thereafter denied defendant's motion pursuant toCPL 440.40 based on an Ahmed contention (see id. at 118-119). Defendant thenappealed both from the order denying his CPL article 440 motion and the judgment, and thisCourt affirmed both the order and judgment (11 AD3d 133 [2004]). Upon granting leave toappeal (3 NY3d 758 [2004]), the Court of Appeals determined that preservation of defendant'scontention was required inasmuch as the contention did not raise a "mode of the proceedingserror . . . [because] the judge delegated nothing" (Kelly, 5 NY3d at 120).Rather, "[t]he very opposite took place. The [*3]court officer'sdemonstration to the jury was unauthorized, and when learning of it, the court took hold of theproceedings and summoned the lawyers to discuss the options" (id.). Here, as inKelly, the court officer acted without delegation from the court; the court informeddefendant of the event upon learning of it; and the court gave defendant an opportunity torespond. We thus conclude that, as in Kelly, preservation of defendant's Ahmedcontention is required (cf. People v Khalek, 91 NY2d 838 [1997]).
In any event, we conclude that both the O'Rama and Ahmed contentions arelacking in merit. As the Court of Appeals has recognized, "not every communication with adeliberating jury requires the participation of the court or the presence of the defendant"(People v Bonaparte, 78 NY2d 26, 30 [1991]). Here, the communications by the courtofficer with the jury were merely ministerial communications (see generally id. at 30-31),requiring neither defendant's presence (see e.g. People v Lykes, 81 NY2d 767, 769[1993]; People v Harris, 76 NY2d 810, 812 [1990]) nor the court's involvement (seeCPL 310.10; see e.g. People v Alicea, 272 AD2d 241 [2000], lv denied 95NY2d 863 [2000]; People v Hodges, 173 AD2d 644 [1991], lv denied 78 NY2d1011 [1991]; cf. People v Torres, 72 NY2d 1007 [1988]).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Green, Pine and Gorski, JJ.