| People v Williams |
| 2014 NY Slip Op 00038 [113 AD3d 1116] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Derek Williams, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered June 9, 2010. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree and robbery in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Erie County, for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon a jury verdictof robbery in the first degree (Penal Law § 160.15 [3]) and robbery in the seconddegree (§ 160.10 [2] [a]), defendant contends, inter alia, that Supreme Court failedto fulfill its "core responsibility" under CPL 310.30 in responding to a jury note (People v Kisoon, 8 NY3d129, 134 [2007]; see generally People v O'Rama, 78 NY2d 270, 276-279[1991]).
The law on this issue is well settled. CPL 310.30 (1) provides that, when adeliberating jury sends a note requesting further instruction or information, "the courtmust direct that the jury be returned to the courtroom and, after notice to both the[P]eople and counsel for the defendant, and in the presence of the defendant, must givesuch requested information or instruction as the court deems proper." In O'Rama(78 NY2d at 277-278), the Court of Appeals provided more detailed instructions for thehandling of jury notes, and the Court subsequently indicated that a trial court's failure tofulfill its "core responsibilities under CPL 310.30," such as giving notice to defensecounsel and the People of the contents of a jury note, requires reversal even in theabsence of preservation (Peoplev Tabb, 13 NY3d 852, 853 [2009]). We have previously stated, however, that"the core requirements of CPL 310.30 are triggered only by a 'substantive juror inquiry'(O'Rama, 78 NY2d at 280)[, and] . . . that a request by the jury for areadback of the entire testimony of a witness is not a substantive inquiry" (People v Kahley, 105 AD3d1322, 1325 [2013]).
Here, the record contains Court exhibit 5, a note from the jury seeking a readback ofthe entire testimony of a witness, but the transcript of the proceedings do not indicate thatthe court responded to that request. The People contend that the court clerk's notesestablish that the court responded to the jury's request in defendant's presence, and thusthat there was no O'Rama violation. Those notes were not included in thestipulated record on appeal, however, and we thus cannot determine from the recordwhether defendant and his attorney were notified of the [*2]contents of the jury note at issue. We therefore hold thecase, reserve decision and remit the matter to Supreme Court for a reconstruction hearingon that issue (see Kahley, 105 AD3d at 1324-1325; see generally People v Cruz,42 AD3d 901, 901 [2007]; People v Russo, 283 AD2d 910, 910-911 [2001],lv dismissed 96 NY2d 867 [2001]). Present—Smith, J.P., Fahey, Lindley,Sconiers and Whalen, JJ.