| People v Surpris |
| 2011 NY Slip Op 02911 [83 AD3d 742] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlainSurpris, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Ilisa T. Fleischerof counsel; Victoria Rosner on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz,J.), rendered March 20, 2007, convicting him of robbery in the first degree, criminal possessionof a weapon in the second degree, and criminal possession of a weapon in the third degree, upona jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing,pursuant to a stipulation in lieu of motions, of the suppression of physical evidence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the CountyCourt, Nassau County, for a new trial.
Contrary to the defendant's contentions, the record supports the County Court's determinationthat the stop of the vehicle in which he was a passenger was based on reasonable suspicion (see People v Jogie, 51 AD3d 1038,1039 [2008]; People v Devorce, 293 AD2d 550 [2002]; People v Flanagan, 224AD2d 633, 633 [1996]). Accordingly, the County Court properly denied suppression of physicalevidence.
The County Court also properly denied that branch of the defendant's motion which was todismiss the first count of the indictment (see CPL 200.50 [7]; People v Iannone,45 NY2d 589, 594-595 [1978]; People v Jogie, 51 AD3d at 1039; People vDudley, 289 AD2d 503, 503-504 [2001]).
The defendant's contentions regarding DNA evidence adduced at trial are unpreserved forappellate review (see CPL 470.05 [2]; People v Diggs, 73 AD3d 1210, 1210 [2010]; People v Howell, 44 AD3d 686,687 [2007]). In any event, the defendant's contentions are without merit (see People v Brown, 13 NY3d332, 340 [2009]; People vRawlins, 10 NY3d 136, 159 [2008], cert denied sub nom. Meekins v New York,557 US —, 129 S Ct 2856 [2009]; People v Thompson, 70 AD3d 866, 866 [2010]; People v Dail, 69 AD3d 873, 875[2010]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).[*2]
However, a new trial is required based on the CountyCourt's failure to comply with CPL 310.30. When a trial court receives a "substantive writtenjury communication" during deliberations, the court must put forth the inquiry on the record andallow counsel a full opportunity to suggest an appropriate response (People v O'Rama, 78NY2d 270, 277 [1991]). The opportunity to respond "is essential to counsel's ability to representthe client's best interests and, further, to ensure the protection of the client's constitutional andstatutory rights at these critical postsubmission proceedings" (id.). A trial court's failureto fulfill its core responsibilities under CPL 310.30 to give meaningful notice to counsel is amode of proceedings error that is exempt from preservation requirements and requires reversal(see People v Tabb, 13 NY3d852, 853 [2009]; People vKisoon, 8 NY3d 129, 135 [2007]).
During deliberations, the jury sent six notes containing substantive inquiries. Although all sixwere marked as court exhibits, only the last five notes were read into the record in the presenceof the defense counsel and the prosecutor. There is no indication that the County Court providednotice to defense counsel and to the prosecutor of the contents of the first jury note. In addition,there is no record of what action the trial court took in response to the first jury note requesting,inter alia, an item that was not admitted into evidence. Given the absence of record proof of theCounty Court's compliance with the requirement, under CPL 310.30, that it provide meaningfulnotice of a substantive jury inquiry, the defendant's conviction must be reversed and a new trialordered (see People v Cruz, 14NY3d 814, 815-816 [2010]; People v Tabb, 13 NY3d at 853; People v Piccione, 78 AD3d 1518,1519 [2010]; People v Lewis, 77AD3d 579, 580 [2010], lv denied 16 NY3d 744 [2011]).
In light of the above determination, the defendant's remaining contentions, including thoseraised in his pro se supplemental brief, need not be reached. Skelos, J.P., Eng, Austin and Cohen,JJ., concur.