| People v Woodrow |
| 2011 NY Slip Op 07758 [89 AD3d 1158] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gerald C.Woodrow, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Lehmann, J.), renderedSeptember 7, 2010, upon a verdict convicting defendant of the crimes of sexual abuse in the seconddegree and endangering the welfare of a child.
Defendant was arrested in the Town of Windsor, Broome County and later indicted on one counteach of sexual abuse in the first degree, sexual abuse in the second degree, forcible touching andendangering the welfare of a child. These charges arose from allegations that, among other things, hetouched or rubbed the vagina of an 11-year-old child and later gave her money in an effort to influenceher not to report the incident. Following a jury trial, he was convicted of sexual abuse in the seconddegree and endangering the welfare of a child. County Court sentenced him to prison terms of one yearfor each conviction, to run consecutively. Defendant appeals.
During deliberations, the jury sent the following note: "Charges (1) Can't come to unanimousdecision (2) Can't come to unanimous decision (3) Not Guilty (4) Can't come to unanimous decision."Outside the presence of the jury, County Court told defendant and the attorneys that "in sum orsubstance [the note] indicates that they could not come to a unanimous verdict on three of the fourcounts." The court proposed that it would give an Allen charge and direct the jury to "tryagain," and then asked defense counsel and the prosecutor, in turn, whether they wished to be heard.Both declined. When the jurors returned to the courtroom, the court [*2]said, "I have received your latest note. In sum or substance it indicatesthat you cannot agree on [three] of the four counts I am told." The court then administered theAllen charge. Defendant contends that by failing to read the note into the record verbatim, thecourt committed a mode of proceedings error requiring reversal (see CPL 310.30; People v Tabb, 13 NY3d 852, 853[2009]; People v Lewis, 77 AD3d579, 579-580 [2010], lv denied 16 NY3d 744 [2011]).
It is well settled that "[w]hen presented with a substantive inquiry from a jury, the trial court is'obligated to give [the] defendant and defense counsel meaningful notice of the precise contents of thejury's note and an advance opportunity to suggest appropriate responses' " (People v Carpenter, 52 AD3d 1050,1050 [2008], lv denied 11 NY3d 735 [2008], cert denied 556 US —, 129 SCt 1613 [2009],quoting People v King, 277 AD2d 708, 711 [2000], lv denied 96NY2d 802 [2001]; see CPL 310.30; People v O'Rama, 78 NY2d 270, 276-278[1991]). This obligation is a "core responsibility" of the court, and thus no objection is required topreserve the question for appellate review (People v Kisoon, 8 NY3d 129, 135 [2007]; see People vStarling, 85 NY2d 509, 516 [1995]). The Court of Appeals has outlined procedures to befollowed in responding to a jury's inquiry, establishing that the proper course is to read the note into therecord verbatim (see People v O'Rama, 78 NY2d at 277-278). However, the Court alsoacknowledged that departures might be appropriate in some circumstances, stating that its intent "[was]not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelinescalculated to maximize participation by counsel at a time when counsel's input is most meaningful, i.e.,before the court gives its formal response" (id. at 278). A court's decision to paraphrase a noteor even to withhold part of its contents does not necessarily constitute a mode of proceedings errorwhere sufficiently specific information about the note's contents is provided to constitute meaningfulnotice to counsel, with an opportunity to respond (see People v Kadarko, 14 NY3d 426, 429-430 [2010]; People v Jones, 82 AD3d 1582,1582-1583 [2011], lv denied 17 NY3d 797 [2011]; People v Donoso, 78 AD3d 129, 135 [2010], lv denied 15NY3d 952 [2010]).
Here, defense counsel was explicitly advised that County Court was summarizing the jury's note,but did not ask to have the note read verbatim or request further clarification (compare People vStevens, 216 AD2d 676, 679 [1995], lv denied 87 NY2d 908 [1995]). The court'sparaphrase closely tracked the language repeated three times in the jury's note—"Can't come tounanimous decision." Further, the court revealed to counsel that the jury had reached unanimity on oneof the four counts, although withholding the information that the jury had also revealed the verdict itwould render. The better practice would surely have been to advise counsel that this information wasbeing withheld; nonetheless, even without this knowledge, defense counsel had sufficient informationregarding the state of the jury's deliberations to request a partial verdict, had he thought such a coursemore appropriate than the court's proposal to administer an Allen charge (see CPL310.70; compare People v Bowman, 79AD3d 1368, 1370 [2010], lv denied 16 NY3d 828 [2011]). Thus, no prejudice resultedfrom counsel's lack of knowledge that the jury had prematurely revealed part of its verdict to the court(compare People v King, 277 AD2d at 711).[FN*]The court's summarization was sufficiently specific "to ensure counsel's opportunity to frame intelligentsuggestions for the fairest and least prejudicial response" (People v Kisoon, 8 NY3d at 134).We therefore find that the error was not a mode of [*3]proceedingserror, as the court fulfilled its core responsibility (see People v Kadarko, 14 NY3d at429-430; People v Jones, 82 AD3d at 1582-1583; People v Donoso, 78 AD3d at135), and preservation was required. Further, for the reasons set forth above, reversal is not warrantedin the interest of justice (see People vAlmonte, 81 AD3d 564, 565 [2011], lv denied 16 NY3d 892 [2011]).
Defendant next contends that County Court imposed a harsh and excessive sentence by directinghis prison terms to run consecutively rather than concurrently. In view of the disturbing nature of thecrimes, defendant's continued efforts after conviction to blame the 11-year-old victim rather thanaccepting responsibility for his actions, and his criminal history, we find no extraordinary circumstancesor abuse of discretion requiring reduction in the interest of justice (see People v Smith, 84 AD3d 1592, 1592-1593 [2011]; People v Dolan, 51 AD3d 1337, 1341[2008], lv denied 12 NY3d 757 [2009]).
Spain, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Notably, the jury's ultimate verdicton the third count of the indictment—forcible touching—was an acquittal, as the noteindicated that it would be.