| People v McGhee |
| 2013 NY Slip Op 00770 [103 AD3d 667] |
| February 6, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James McGhee, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered May 11, 2010, convicting him of gang assault in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
During deliberations, the jury sent two notes to the trial justice. The record reflectsthat on both occasions, the Justice disclosed the notes to the prosecutor and defensecounsel for the first time in the presence of the jury, and then immediately provided aformal response. In one of the notes, the jury asked the following question: "Is intentdefined as premeditated desires or actions once engaged?" The Justice responded to thisparticular inquiry by giving a more expanded definition of intent than was providedduring the initial jury instructions, including, among other things, the explanation that"[i]ntent does not require premeditation." Defense counsel did not object to the SupremeCourt's procedure in handling either of the jury notes.
In People v O'Rama (78 NY2d 270 [1991]), the Court of Appeals set forththe procedure for handling communications from the jury in accordance with CPL310.30. "[W]henever a substantive written jury communication is received by the Judge,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 at277-278). "After the contents of the inquiry are placed on the record, counsel should beafforded a full opportunity to suggest appropriate responses" (id. at 278)."[W]hen the jury is returned to the courtroom, the communication should be read in opencourt so that the individual jurors can correct any inaccuracies in the transcription of theinquiry" (id.). "Although some deviations from this procedure may be warranteddepending on the circumstances, where the court fails to fulfill its 'core responsibility'under CPL 310.30 by depriving the defendant of meaningful notice of thecommunication or a meaningful opportunity to participate in the formulation of thecourt's response, the error affects the mode of the proceedings" (People v Lockley, 84 AD3d836, 837 [2011], quoting People v Kisoon, 8 NY3d 129, 135 [2007]; see Peoplev O'Rama, 78 NY2d at [*2]279-280). Errorsaffecting the mode of proceedings need not be preserved, and manifestly prejudice thedefendant (see People v O'Rama, 78 NY2d at 279-280; People vLockley, 84 AD3d at 837).
Here, the jury's request for a further explanation of the element of intent "called for asubstantive response that required careful crafting after hearing argument from both thePeople and the defense" (People v Lockley, 84 AD3d at 839; see People v Tabb, 13 NY3d852, 853 [2009]; People vLewis, 77 AD3d 579 [2010]), and was not a request for a mere ministerialreadback of the previous instruction on intent (cf. People v Starling, 85 NY2d509, 516 [1995]; People vGerrara, 88 AD3d 811, 812 [2011], cert denied 568 US —, 133 SCt 857 [2013]; People vBryant, 82 AD3d 1114 [2011]). "Since defense counsel was not afforded theopportunity to provide suggestions, he was prevented from participating meaningfully atthis critical stage of the proceedings" (People v Lockley, 84 AD3d at 839). "Inthe absence of record proof that the trial court complied with its core responsibilitiesunder CPL 310.30, a mode of proceedings error occurred requiring reversal" (Peoplev Tabb, 13 NY3d at 853), despite defense counsel's failure to object to the SupremeCourt's handling of the jury's notes (see People v Kisoon, 8 NY3d at 135;People v O'Rama, 78 NY2d at 279-280).
In light of this determination, the defendant's remaining contentions regarding theSupreme Court's handling of the jury notes have been rendered academic.
Accordingly, the judgment must be reversed and a new trial ordered.
Since a new trial is required, we note that the Supreme Court improvidentlyexercised its discretion in admitting into evidence exhibit 20, which depicted twoidentical photographs of the victim's head after he died, as defense counsel had offered tostipulate that the victim was the person upon whom the autopsy was later performed(see People v Stevens, 76 NY2d 833, 836 [1990]). Skelos, J.P., Dickerson,Chambers and Hinds-Radix, JJ., concur.
Motion by the appellant to strike stated portions of the respondent's brief on anappeal from a judgment of the Supreme Court, Queens County, rendered May 11, 2010,on the ground that it refers to material dehors the record. By decision and order onmotion of this Court dated August 30, 2012, the motion was held in abeyance andreferred to the panel of Justices hearing the appeal for determination upon the argumentor submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the argument of the appeal, it is
Ordered that the motion is granted, and those portions of the respondent's brief aredeemed stricken and have not been considered in the determination of the appeal (see People v Powell, 101AD3d 756 [2012]). Skelos, J.P., Dickerson, Chambers and Hinds-Radix, JJ., concur.