| People v Roberites |
| 2014 NY Slip Op 02159 [115 AD3d 1291] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JesseRoberites, Appellant. |
—[*1] Jesse Roberites, defendant-appellant pro se. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.),rendered June 9, 2009. The judgment convicted defendant, upon a jury verdict, of arsonin the third degree and insurance fraud in the second degree.
It is hereby ordered that the judgment so appealed from is reversed on the law and anew trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of arson in the third degree (Penal Law § 150.10) and insurance fraud inthe second degree (§ 176.25). The conviction stems from defendant's efforts toobtain the proceeds of an insurance policy covering his residence, which was damagedby a fire.
Defendant contends in his main and pro se supplemental briefs that the evidence islegally insufficient to support the conviction and that the verdict is against the weight ofthe evidence. We reject those contentions. Viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a valid line of reasoning and permissible inferences to support thejury's finding that defendant committed the crimes of which he was convicted based onthe evidence presented at trial (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Furthermore, viewing the evidence in light of the elements of the crimes ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant contends in his pro se supplemental brief that County Court failed toapprise him of a jury note requesting exhibits, and that such failure constitutes a mode ofproceedings error requiring reversal of the judgment, even if unpreserved (see Peoplev O'Rama, 78 NY2d 270, 279-280 [1991]; see also CPL 310.30). We agree.CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them"[a]ny exhibits received in evidence at the trial which the court, after according theparties an opportunity to be heard upon the matter, in its discretion permits them totake" (emphasis added). CPL 310.30 provides that, "[a]t any time during its deliberation,the jury may request the court for further instruction or information with respect to thecontent or substance of any trial evidence . . . Upon such a request, thecourt must direct that the jury be returned to the courtroom and, after notice to both thepeople and counsel for the defendant, and in the presence of the defendant, mustgive such requested information or instruction as the court deems proper" (emphasisadded). Here, as part of its instructions to the jury, the court informed the jurors that"[e]xhibits that were received in evidence are available, upon your request, for yourinspection and consideration." The court, however, neither elicited on the record whetherdefendant, who proceeded pro se at trial, waived his right to be present when such arequest was made nor informed defendant on the record that the exhibits would be givento the jury without reconvening. Prior to receiving the jury's verdict, the court indicatedthat it had received a jury note "that has been marked as a Court Exhibit which was justthe jury requesting certain items of evidence that had already been admitted and receivedin evidence, that they were provided with those items pursuant to discussions we had andwhat they were told before deliberations." We note that those "discussions" do not appearto have been transcribed, and no agreement by defendant to forego the right to be presentfor the receipt of jury notes appears in the record before us. Inasmuch as the court failedto obtain defendant's express agreement waiving his right to be present for the reading ofthe jury note at issue, we conclude that the court committed a mode of proceedings errorwhen it provided exhibits to the jury in response to a jury note without notice todefendant, thereby requiring reversal of the judgment and a new trial (cf. People v King, 56 AD3d1193, 1194 [2008], lv denied 11 NY3d 926 [2009]; People v Mitchell, 46 AD3d480, 480 [2007], lv denied 10 NY3d 842 [2008]; People v Knudsen, 34 AD3d496, 497 [2006]).
In view of our decision, we do not address defendant's remaining contentions in hismain and pro se supplemental briefs.
All concur except Smith, J.P., who dissents and votes to affirm in the followingmemorandum.
Smith, J.P. (dissenting). I disagree with the majority's conclusion that County Courtcommitted a mode of proceedings error in its handling of a note from the jury requestingthe exhibits that were received in evidence. In view of defendant's failure to preserve theissue for our review, I respectfully dissent and would affirm the judgment.
Initially, I note that I agree with the majority's resolution of the issues concerning thelegal sufficiency and weight of the evidence. With respect to the jury note at issue, thefacts are set forth by the majority. Briefly, during its final jury instructions, the courtinformed the jurors that it would provide them with any item that had been received inevidence upon their request. Defendant did not object. Later, the court informed theparties that the jury had asked to see certain pieces of evidence, and that those items hadbeen provided pursuant to the court's discussions with the parties and the juryinstructions. Defendant contends that the court thereby failed to comply with theprocedures set forth in People v O'Rama (78 NY2d 270 [1991]), and that suchfailure constituted a mode of proceedings error requiring reversal of the judgment,notwithstanding his failure to preserve it.
The O'Rama procedures are based on the principle that "CPL 310.30. . . imposes two separate duties on the court following asubstantive juror inquiry: the duty to notify counsel and the duty to respond"(id. at 276 [emphasis added]). The failure to follow those procedures whenconfronted with a jury note that raises a substantive inquiry is a mode of proceedingserror that does not require preservation (see id. at 279). Only substantiveinquiries, however, require adherence to the O'Rama procedures. "Section 310.30does not require notice to defendant in every instance of communication from the jury tothe court" (People v Lykes, 81 NY2d 767, 769 [1992]). Where, as here, adefendant contends that a jury note contained a substantive question, and thus requiredadherence to the O'Rama procedures, this Court's "inquiry ultimately focuses onwhether the matter discussed was merely ministerial and, thus, 'wholly unrelated to thesubstantive legal or factual issues of the trial.' . . . [The issue is ministerialwhere] the challenged [*2]discussion . . .[bears] no substantial relationship to the defendants' opportunity to defend against thecharges" (People v Hameed, 88 NY2d 232, 241 [1996], cert denied 519US 1065 [1997]).
In the note at issue, the jury merely requested certain items that had been admitted inevidence for their use during deliberations. Thus, the record reveals that the jury inquirywas purely ministerial in nature, containing only a request to view evidence. "Since thenote[ ] [was] not substantive, any failure by the trial court to comply with CPL 310.30did not constitute a mode of proceeding[s] error" (People v Gerrara, 88 AD3d 811, 812 [2011], lvdenied 18 NY3d 957 [2012], cert denied 568 US —, 133 S Ct 857[2013]; see People vBryant, 82 AD3d 1114, 1114 [2011], lv denied 17 NY3d 792 [2011]; cf. People v Lockley, 84 AD3d836, 838 [2011], lv denied 17 NY3d 807 [2011]).
Consequently, I conclude that "[d]efendant's reliance on [O'Rama] ismisplaced. The note sent by the jury simply requested [some of the evidence], which boththe jury and [defendant] were apprised was available for inspection upon request; thenote did not request any substantive information to implicate the notice proceduresoutlined in O'Rama. Indeed, other than the production of [that evidence], the notecalled for no other response" (People v Damiano, 87 NY2d 477, 487 [1996]; see People v Green, 37 AD3d1131, 1131 [2007], lv denied 8 NY3d 946 [2007]; see also People vRosado, 262 AD2d 62, 62 [1999], lv denied 93 NY2d 1045 [1999]).Inasmuch as no mode of proceedings error occurred and O'Rama was notimplicated, defendant was required to object to the procedure used by the court and,having failed to do so, he failed to preserve his contention for our review (seeCPL 470.05 [2]). I would decline to exercise this Court's power to reviewdefendant's contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Defendant also failed to preserve for our review his related contention that the courtviolated CPL 310.20 (1), which permits a deliberating jury to take with them "[a]nyexhibits received in evidence at the trial which the court, after according the parties anopportunity to be heard upon the matter, in its discretion permits them to take." Iconclude that the case law governing CPL 310.30 is equally applicable here, and thus Ireject defendant's contention that the court's response to the jury's request to take theexhibits into the jury room was a mode of proceedings error. Therefore, in the absence ofa proper objection, defendant's contention is not preserved for our review (seeCPL 470.05 [2]), and I would decline to exercise this Court's power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
I have examined defendant's remaining contentions and conclude that none requiresmodification or reversal of the judgment. Present—Smith, J.P., Fahey, Valentinoand Whalen, JJ.