| People v Cooper |
| 2013 NY Slip Op 04057 [107 AD3d 1054] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JackCooper, Appellant. |
—[*1] Irene C. Graven, Acting District Attorney, Owego (Cheryl Mancini of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered August 8, 2011, upon a verdict convicting defendant of the crime of criminalcontempt in the first degree.
Defendant's wife was issued an ex parte, temporary order of protection by FamilyCourt requiring defendant to, among other things, stay away from her. After drinkingtogether at several bars two days later, defendant and his wife got into an argument andthe police were called. A Tioga County Deputy Sheriff advised defendant that he was thesubject of an order of protection, drove him to the Sheriff's Office and gave him a copyof the order. Hours later, defendant returned to the residence where his wife was staying,the police were called again and defendant was arrested for violating the order ofprotection. After a jury trial, defendant was convicted of criminal contempt in the firstdegree, and County Court sentenced him, as a second felony offender, to a prison term of1½ to 3 years. Defendant appeals.
Early in these proceedings, defendant's trial counsel informed County Court of apotential conflict of interest based upon the prior representation of a prosecution witnessby another attorney in counsel's law firm. Although counsel informed the court thatdefendant had no objection, County Court erred by failing to directly inquire intodefendant's awareness of the potential risks and his willingness to waive any potentialconflict (see People v McDonald, 68 [*2]NY2d1, 8 [1986]; People v Gomberg, 38 NY2d 307, 313-314 [1975]). Under thecircumstances here, however, this failure was harmless, inasmuch as there is noindication that the potential conflict actually affected the conduct of the defense (seePeople v Smart, 96 NY2d 793, 795 [2001]; People v McDonald, 68 NY2d at9; People v Lombardo, 61 NY2d 97, 103 [1984]).
Nor are we persuaded that County Court's handling of a note from the jury requiresreversal. To be sure, upon receipt of a note from a deliberating jury, a trial court isrequired to notify counsel of the contents of the note prior to responding to it and then toprovide a meaningful response to the jury (see CPL 310.30; People vO'Rama, 78 NY2d 270, 276 [1991]). Here, the jury asked for a legal definition of"duly served," an issue that had been raised by defense counsel as part of his motion for atrial order of dismissal and, again, as a requested instruction that he submitted during thecharge conference. Defense counsel argued, in support of both his motion and hisrequested instruction, that "duly served" required proof that the contents of the orderwere read to defendant and defendant understood the conduct prohibited by it. CountyCourt twice rejected counsel's interpretation of "duly served" and, after receipt of thenote, cut short counsel's argument as to the proper response, noting that the issue hadalready been fully discussed. County Court then instructed the jury that "duly served"meant delivery of a copy of the written order that advised defendant of the prohibitedconduct and that it required knowledge of receipt. The jury asked no further questionsand returned a verdict shortly thereafter.
While the better practice would have been for County Court to read the note on therecord prior to responding to it and we do not condone the court's curtailment ofcounsel's argument, the record reflects that counsel was aware of the specific content ofthe note and we are satisfied that counsel had a full opportunity to explain his position asto the meaning of "duly served." Under these circumstances, defense counsel can be saidto have meaningfully participated in the response to the note (see People v Starr,213 AD2d 758, 760-761 [1995], lv denied 85 NY2d 980 [1995]; comparePeople v O'Rama, 78 NY2d at 279). Furthermore, the supplemental instruction wasresponsive to the question and accurately reflected the substantive requirements for afactual finding that a person has been "duly served" (see People v Clark, 95NY2d 773, 775 [2000]; People v Pichardo, 298 AD2d 150, 151 [2002], lvdenied 99 NY2d 562 [2002]).
We have reviewed defendant's remaining contentions and find them to be withoutmerit.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.