| People v Dupleasis |
| 2010 NY Slip Op 09770 [79 AD3d 1777] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Hillery M. Dupleasis, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered January 7, 2009. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree, criminal possession of a weapon in the second degree, burglary in the firstdegree (two counts) and robbery in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on counts two through seven of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, murder in the second degree (Penal Law § 125.25 [3]). Viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). We agree with defendant, however, thatreversal is required because Supreme Court failed to comply with CPL 310.30 during jurydeliberations. Indeed, the court failed to fulfill its "core responsibility under the statute" inresponding to a note from the jury at that time (People v Kisoon, 8 NY3d 129, 134 [2007]). "It is well settled that a'substantive written jury communication . . . should be . . . read intothe record in the presence of counsel' before the jury is summoned to the courtroom in responsethereto" (People v Piccione, 78AD3d 1518, 1519 [2010], quoting People v O'Rama, 78 NY2d 270, 277-278[1991]), and here the court responded to the jury's note in writing without providing noticethereof to the prosecutor or defense counsel. In light of our decision, we do not addressdefendant's remaining contentions except to note that, in view of the date on which the crimeswere committed, the court erred in imposing the DNA databank fee (see People v McCullen, 63 AD3d1708, 1710 [2009], lv denied 13 NY3d 747). Present—Scudder, P.J., Smith,Green, Pine and Gorski, JJ.