| People v Stocks |
| 2012 NY Slip Op 08771 [101 AD3d 1049] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vernon Stocks, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered December 11, 2008, convicting him of robbery in the second degree (two counts), upona jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's contention that the People failed to present legally sufficient evidence ofphysical injury to sustain his conviction of robbery in the second degree under count two of theindictment (see Penal Law § 160.10 [2] [a]) is unpreserved for appellate review(see People v Hawkins, 11 NY3d484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620 [1983]), we find that it was legally sufficient to establish physical injury (see PenalLaw § 10.00 [9]; People vChiddick, 8 NY3d 445, 447-448 [2007]; People v Valencia, 50 AD3d 1163, 1164 [2008]). Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
However, a new trial is required based on the Supreme Court's failure to comply with CPL310.30. In People v O'Rama (78 NY2d 270 [1991]), the Court of Appeals set forth theprocedure for handling communications from the jury in accordance with CPL 310.30. The Courtof Appeals held that "whenever a substantive written jury communication is received by theJudge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom,read into the record in the presence of counsel" (People v O'Rama, 78 NY2d at 277-278)."After the contents of the inquiry are placed on the record, counsel should be afforded a fullopportunity to suggest appropriate responses. The court should then ordinarily apprise counsel ofthe substance of the responsive instruction it intends to give so that counsel can seek whatevermodifications are deemed appropriate before the jury is exposed to any potentially harmfulinformation. Once the jury is returned to the courtroom, the communication should be read inopen court" (People v Lockley, 84AD3d 836, 837 [2011]; see People v O'Rama, 78 NY2d at 278). "Although somedeviations from this procedure may be [*2]warranted dependingon the circumstances, where the court fails to fulfill its 'core responsibility' under CPL 310.30 bydepriving the defendant of meaningful notice of the communication or a meaningful opportunityto participate in the formulation of the court's response, the error affects the mode of theproceedings" (People v Lockley, 84 AD3d at 837, quoting People v Kisoon, 8 NY3d 129,134-135 [2007]; see People v O'Rama, 78 NY2d at 279-280). "The purpose of CPL310.30 and the O'Rama decision is to maximize the participation of counsel at a timewhen counsel's input is most meaningful, that is, before the court gives its formal response to thejury" (People v Lockley, 84 AD3d at 838; see People v Cook, 85 NY2d 928, 931[1995]; People v O'Rama, 78 NY2d at 278).
Here, there is no evidence appearing on the face of the record that the Supreme Court readthe contents of a note from the jury into the record and provided counsel a full opportunity tosuggest appropriate responses (seePeople v Surpris, 83 AD3d 742, 744 [2011]). Rather, the record demonstrates that theSupreme Court violated the procedure set forth in O'Rama by reading the contents of thejury note for the first time in front of the jury and immediately providing a response (seePeople v Lockley, 84 AD3d at 838). Significantly, in one part of the note, the jury asked forclarification as to the difference between the two counts of robbery in the second degree. Thiswas not a request for a mere ministerial readback of the Supreme Court's charge (cf. People vStarling, 85 NY2d 509, 516 [1995]; People v Snider, 49 AD3d 459 [2008]). Instead, that portion of thejury's note requested a substantive response (see People v Lockley, 84 AD3d at 838).Since defense counsel was not afforded the opportunity to provide suggestions for the SupremeCourt's response to the jury's substantive inquiry, the defendant was prevented from participatingmeaningfully at this critical stage of the proceeding (see People v O'Rama, 78 NY2d at279; People v Lockley, 84 AD3d at 838).
Since the jury's note contained a substantive inquiry, the Supreme Court's failure to providecounsel an opportunity to participate meaningfully in formulating its response was a mode ofproceedings error that requires reversal (see People v Tabb, 13 NY3d 852, 853 [2009]; People vSurpris, 83 AD3d at 744; People vLewis, 77 AD3d 579, 580 [2010]). Accordingly, we reverse the judgment and order anew trial.
We note that the Supreme Court improperly precluded, on hearsay grounds, testimonyregarding the contents of a conversation between the defendant and his purported accomplice thatwas relevant to the defendant's state of mind (see People v Kass, 59 AD3d 77, 86-87 [2008]). Since thistestimony was offered for a nonhearsay purpose, it should have been admitted at trial. Skelos,J.P., Hall, Austin and Hinds-Radix, JJ., concur.
Motion by the appellant, inter alia, to strike stated portions of the respondent's brief on anappeal from a judgment of the Supreme Court, Queens County, rendered December 11, 2008. Bydecision and order on motion of this Court dated June 26, 2012, that branch of the motion whichwas to strike stated portions of the respondent's brief was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is,[*3]
Ordered that the branch of the motion which was to strikestated portions of the respondent's brief is granted, and those portions of the respondent's briefhave not been considered (see People v Powell, 101 AD3d 756, 2012 NY Slip Op 08342[2012]). Skelos, J.P., Hall, Austin and Hinds-Radix, JJ., concur.