| People v Fenton |
| 2013 NY Slip Op 02761 [105 AD3d 1057] |
| April 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mtume Fenton, Also Known as Champagne,Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered March 10, 2010, convicting him of criminal possession of a weaponin the second degree and reckless endangerment in the first degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to theSupreme Court, Queens County, for a new trial on the counts of the indictment chargingthe defendant with criminal possession of a weapon in the second degree and recklessendangerment in the first degree.
The defendant's contention that the evidence was legally insufficient to establish hisguilt beyond a reasonable doubt is unpreserved for appellate review (see People v Hawkins, 11NY3d 484 [2008]) and, in any event, is without merit. Viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt of criminalpossession of a weapon in the second degree and reckless endangerment in the firstdegree beyond a reasonable doubt. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
Nonetheless, the judgment of conviction must be reversed and a new trial held, basedon the Supreme Court's failure to comply with CPL 310.30 (see generally People vO'Rama, 78 NY2d 270 [1991]). Contrary to the People's contention, the SupremeCourt failed to fulfill its core responsibilities under CPL 310.30, thereby committing amode of proceedings error that is exempt from preservation requirements and requiresreversal (see People v Tabb,13 NY3d 852, 853 [2009]; People v Powell, 101 AD3d 756, 758-759 [2012]; People v Curry, 101 AD3d743, 745 [2012]; People vSurpris, 83 AD3d 742, 744 [2011]; People v Lewis, 77 AD3d 579, 580 [2010]). Although,during the pendency of this appeal, the People moved in the Supreme Court to resettlethe record, so as to demonstrate that the Supreme Court did, in fact, reveal the contents ofcertain jury notes to counsel and formulate the proper responses in an off-the-recordconversation, resettlement is not an appropriate remedy under the [*2]circumstances presented here (see People v Powell,101 AD3d at 758-759). In any event, even if resettlement were appropriate, a showingthat the contents of the jury notes were revealed to and discussed with counsel off therecord would be of no avail to the People, since this procedure would not satisfy therequirements for compliance with CPL 310.30 as set forth by the Court of Appeals inPeople v O'Rama (78 NY2d at 277-278). "Specifically, the Court of Appeals hasheld that 'whenever a substantive written jury communication is received by the Judge,' itshould be 'read into the record in the presence of counsel,' and that, '[a]fter the contentsof the inquiry are placed on the record, counsel should be afforded a full opportunity tosuggest appropriate responses' " (People v Powell, 101 AD3d at 759, quotingPeople v O'Rama, 78 NY2d at 277-278). These requirements were not satisfiedhere. Accordingly, we remit the matter to the Supreme Court, Queens County, for a newtrial on the counts of the indictment charging the defendant with criminal possession of aweapon in the second degree and reckless endangerment in the first degree. Since thedefendant was acquitted of the counts of the indictment charging him with attemptedmurder in the second degree and assault in the first degree, the constitutional protectionagainst double jeopardy precludes a retrial on those counts (see People vGonzalez, 61 NY2d 633, 635 [1983]).
The defendant's remaining contentions are academic in light of our determination.Angiolillo, J.P., Dickerson, Miller 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 March 10,2010. By decision and order on motion of this Court dated October 12, 2012, the motionwas held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or 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 to strike stated portions of the respondent's brief is grantedand those portions have not been considered in the determination of the appeal.Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.