| People v Kalinowski |
| 2011 NY Slip Op 03771 [84 AD3d 1739] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RobinKalinowski, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedFebruary 25, 2009. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her upon ajury verdict of murder in the second degree (Penal Law § 125.25 [1]) and, in appeal No. 2,defendant appeals from a judgment convicting her upon her plea of guilty of conspiracy in thesecond degree (§ 105.15). With respect to appeal No. 1, defendant contends that she isentitled to a new trial based on County Court's failure to comply with CPL 310.30 in handling thefirst note from the jury. We agree. At the commencement of jury deliberations, the attorneys andthe court agreed that, if the jury requested certain items of evidence, the court would provide thejury with the evidence without first reassembling the parties in the courtroom. The first jury noteread: "The jury would like further clarification of the path of the bullet. Does the autopsy reportclarify the exact path of the bullet wound in the decedent['s] head—if so, can we pleasehear/see the path of the wound and/or autopsy report." The court did not read the jury note intothe record, nor did it respond to the note on the record. In fact, there is no indication in the recordthat defendant or her attorney was even apprised of the note or its content. Thus, it is clear thatthe court failed to comply with the mandates of CPL 310.30 (see generally People vO'Rama, 78 NY2d 270, 276-278 [1991]).
We reject the contention of the People that the court's handling of the jury note was properpursuant to the stipulation entered at the commencement of jury deliberations. The jury did notmerely request the autopsy report or another exhibit in its first note. Rather, as defendantcorrectly notes, the note can fairly be interpreted as requesting a readback of the testimony of theChief Medical Examiner, who testified extensively concerning the path of the bullet in thevictim's head. At the very least, the note is ambiguous as to whether the jury was requesting areadback of certain testimony, as opposed to or in addition to the autopsy report, and we [*2]conclude that the court should therefore have notified the attorneysof the note and afforded them an opportunity to be heard with respect to an appropriate response.Although defendant did not object to the court's handling of the first jury note, preservation is notrequired because the court failed to comply "with its core responsibilities under CPL 310.30" andthereby committed a mode of proceedings error (People v Tabb, 13 NY3d 852, 853 [2009]; see People v Kisoon, 8 NY3d 129,135 [2007]; see generally O'Rama, 78 NY2d at 276-277).
Defendant further contends in appeal No. 1 that the indictment should be dismissed becausethe evidence is legally insufficient to establish that she intended to kill the victim. We reject thatcontention inasmuch as the People presented ample evidence of defendant's intent to kill.Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we also reject defendant's contention that the verdict is against the weightof the evidence. Even assuming, arguendo, that a different verdict would not have beenunreasonable, we cannot conclude that the jury failed to give the evidence the weight it should beaccorded (see People v Kalen, 68AD3d 1666, 1667 [2009], lv denied 14 NY3d 842 [2010]; see generally People vBleakley, 69 NY2d 490, 495 [1987]). Because defendant is entitled to a new trial based onthe court's failure to comply with CPL 310.30, we need not address her remaining contentions inappeal No. 1.
With respect to appeal No. 2, defendant contends that, in the event that she is entitled to anew trial on the murder charge, her plea of guilty to conspiracy in the second degree must bevacated. We reject that contention. Defendant was charged with conspiracy in the second degreeand criminal solicitation in the second degree (Penal Law § 100.10) based on her efforts tohire someone to kill her former paramour so that he would be unable to testify at the murder trial.After defendant was convicted of murder and sentenced to a term of imprisonment of 25 years tolife, defendant pleaded guilty to conspiracy in the second degree and the court promised tosentence her to a concurrent term of imprisonment. Defendant was informed prior to sentencingthat her conspiracy conviction would stand even in the event that she was successful on herappeal from the judgment convicting her of murder, and defense counsel acknowledged thatdefendant was aware of the same when she pleaded guilty. Defendant therefore is not entitled tovacatur of her plea inasmuch as reversal of the murder conviction and removal of the sentenceimposed thereupon does not nullify "a benefit that was expressly promised and was a materialinducement to the guilty plea" (People vRowland, 8 NY3d 342, 345 [2007]; see generally People v Pichardo, 1 NY3d 126, 129-130 [2003]).Present—Smith, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.