| People v Weaver |
| 2011 NY Slip Op 08060 [89 AD3d 1477] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lester Weaver,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered July 2,2007. The judgment convicted defendant, upon a jury verdict, of falsifying business records in the firstdegree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and anew trial is granted.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of falsifyingbusiness records in the first degree (Penal Law § 175.10) and petit larceny (§ 155.25).We reject defendant's contention that the evidence adduced at trial is legally insufficient to support hisconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewed in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), theevidence established that defendant knowingly returned unpurchased merchandise at a T.J. Maxx storein exchange for store credit in the form of a gift card. Defendant then used the fraudulently obtainedstore credit to purchase several other items of merchandise before he left the store. Contrary todefendant's contention, the "indictment 'fairly apprised defendant' of the theory of the People's case. . . , and the slight variation in that theory [at trial] did not affect defendant's liability forthe crimes charged" (People v Wright,16 AD3d 1173, 1174 [2005], lv denied 5 NY3d 771 [2005]; see People v Osborne, 63 AD3d 1707,1708 [2009], lv denied 13 NY3d 748 [2009]).
We agree with defendant, however, that County Court failed to comply with CPL 310.20 (1) and310.30 in handling the fourth note from the jury received during deliberations, which requested accessto a surveillance videotape that had been admitted in evidence. In response to the jury's first noteseeking two specified statements and "a list of the evidence," the court sent all of the admitted evidenceto the jury with the exception of the videotape. In its third note, the jury asked "to see the video," andthe court directed that the jury be returned to the courtroom, whereupon the videotape was played.The jury's fourth note read: "We request to view the video in an atmosphere where it can be discussedby jury as a group [and] we can control what sections of video we watch." The court did not read thejury note into the record, nor did it respond to the note on the record. In fact, there is no indication inthe record that defendant or his attorney were even apprised of the note or its contents.[*2]
CPL 310.20 (1) provides that jurors may take with them intodeliberations "[a]ny exhibits received in evidence at the trial which the court, after according the partiesan opportunity to be heard upon the matter, in its discretion permits them to take." The court failed tocomply with CPL 310.20 (1) in that it did not afford defendant the opportunity to be heard regardingthe jurors' request to view the videotape "in an atmosphere where it can be discussed by [the] jury as agroup [and] we can control what sections of video we watch" (cf. People v Damiano, 87NY2d 477, 487 [1996]; People vMitchell, 46 AD3d 480 [2007], lv denied 10 NY3d 842 [2008]), which requiresreversal. In addition, CPL 310.30 provides that, when a deliberating jury requests information withrespect to any trial evidence, "the court must direct that the jury be returned to the courtroom and, afternotice to both the people and counsel for the defendant, and in the presence of the defendant, must givesuch requested information or instruction as the court deems proper." The court failed to comply withCPL 310.30 in that it did not give notice of the jury's request to counsel for defendant or give anyresponse to the jury. "In the absence of record proof that the trial court complied with its coreresponsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal" (People v Tabb, 13 NY3d 852, 853[2009]; see People v Kisoon, 8 NY3d129, 135 [2007]; see generally People v O'Rama, 78 NY2d 270, 276-277 [1991]).Under the circumstances of this case, we reject the People's contention that the court's errors in failingto comply with CPL 310.20 (1) and CPL 310.30 are harmless (see People v Cook, 85 NY2d928, 930-931 [1995]). In light of our conclusion that reversal is required, we need not addressdefendant's remaining contentions. Present—Centra, J.P., Fahey, Peradotto, Lindley andMartoche, JJ.