| People v Thomas |
| 2014 NY Slip Op 02090 [115 AD3d 995] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jermaine Thomas, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andMerri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J.), rendered April 18, 2011, convicting him of criminal possession of a weaponin the second degree (four counts) and conspiracy in the fourth degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
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. The Court of Appeals held that "whenever a substantive written jurycommunication 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 ofcounsel" (People v O'Rama, 78 NY2d at 277-278). "After the contents of theinquiry are placed on the record, counsel should be afforded a full opportunity to suggestappropriate responses. The court should then ordinarily apprise counsel of the substanceof the responsive instruction it intends to give so that counsel can seek whatevermodifications are deemed appropriate before the jury is exposed to any potentiallyharmful information. Once the jury is returned to the courtroom, the communicationshould be read in open court" (People v Lockley, 84 AD3d 836, 837 [2011]; seePeople v O'Rama, 78 NY2d at 278; People v Stocks, 101 AD3d 1049, 1050 [2012])."Although some deviations from this procedure may be warranted depending on thecircumstances, where the court fails to fulfill its 'core responsibility' under CPL 310.30by depriving the defendant of meaningful notice of the communication or a meaningfulopportunity to participate in the formulation of the court's response, the error affects themode of the proceedings" (People v Lockley, 84 AD3d at 837, quoting People v Kisoon, 8 NY3d129, 134-135 [2007]; see People v O'Rama, 78 NY2d at 279-280; Peoplev Stocks, 101 AD3d at 1050). "The purpose of CPL 310.30 and the O'Ramadecision is to maximize the participation of counsel at a time when counsel's input ismost meaningful, that is, before the court gives its formal response to the jury"(People v Lockley, 84 AD3d at 838; see People v Cook, 85 NY2d 928,931 [1995]; People v O'Rama, 78 NY2d at 278).[*2]
Here, during jury deliberations, the jury sentseveral notes to the Supreme Court. As relevant to the instant appeal, the jury sent a noterequesting "to have the law read back to us in the matter of venue for the geographicaljurisdiction" with regard to the two conspiracy counts of which the defendant wascharged. In the presence of the defendant, counsel, and the jury, the Supreme Court readthe contents of that jury note and advised the jury on the law relating to venue. None ofthe parties objected to this procedure for handling that readback. With regard to that jurynote, the defendant's contention on appeal that the Supreme Court violated the procedureset forth in O'Rama is unpreserved for appellate review, "as . . .defense counsel had notice of a jury note and 'failed to object . . . when theerror could have been cured' " (People v Williams, 21 NY3d 932, 935 [2013], quoting People v Ramirez, 15 NY3d824, 826 [2010]; seePeople v Alcide, 21 NY3d 687, 693-694 [2013]; People v Ippolito, 20 NY3d615, 624-625 [2013]; People v Starling, 85 NY2d 509, 516 [1995]).
However, in a subsequent note, the jury requested "clarification on the counts ofcriminal possession of a weapon in the second degree." Notwithstanding the foregoing,in the presence of the defendant, counsel, and the jury, the Supreme Courtmischaracterized that note as asking "to have read to us the counts of" criminalpossession of a weapon in the second degree. In apprising counsel of the contents of thatnote, the Supreme Court omitted the word "clarification." The court proceeded to providethe jury with certain legal instructions on the counts of criminal possession of weapon inthe second degree. The jury's request for "clarification" was not a request for a "mereministerial readback" of the Supreme Court's charge (People v Stocks, 101 AD3dat 1051). Meaningful notice of a jury's note "means notice of the actual specific contentof the jurors' request. Manifestly, counsel cannot participate effectively or adequatelyprotect the defendant's rights if this specific information is not given" (People vO'Rama, 78 NY2d at 277). Under these circumstances, the Supreme Court's mode ofproceedings error requires reversal of the judgment and a new trial (see People vPatterson, 39 NY2d 288, 295-296 [1976]).
The defendant's contention that the Supreme Court's closure of the courtroom duringthe testimony of an undercover officer deprived him of his right to a public trial iswithout merit (see People vEchevarria, 21 NY3d 1, 19 [2013], cert denied 571 US —, 134 SCt 823 [2013]; People v Frost, 100 NY2d 129, 137 [2003]; People vRamos, 90 NY2d 490, 494 [1997], cert denied 522 US 1002 [1997]).
The defendant's contentions raised in Points III and IV of his brief are without merit.The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ., concur.