| People v Giraldo |
| 2014 NY Slip Op 02309 [116 AD3d 711] |
| April 2, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sebastian Giraldo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, MerriTurk Lasky, and Josette Simmons McGhee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered January 4, 2012, convicting him of criminal possession of aweapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was convicted of two counts of criminal possession of a weapon inthe second degree. On appeal, he contends that his counsel was denied prior meaningfulnotice of the content of a particular jury note and an opportunity to suggest appropriateresponses in accordance with CPL 310.30 and People v O'Rama (78 NY2d 270[1991]). We agree.
During deliberations, the jury returned two notes to the Supreme Court. The secondnote read: "Please re-read what constitutes 'guilty or not guilty' under each count. Youpreviously read 4 (?) points under each count and said if we find at least one of the fourpoints correct we should render guilty (?)" The court did not read this note to counselverbatim on the record, but summarized it as a request for instructions as to the elementsof the crimes. Before responding to the jury, the court misquoted the note on the record,stating, "Can you please reread what constitutes guilty or not guilty? You read fourpoints. Under each point if you say you find at least one of the four points correct weshould render a guilty or not guilty." The court then responded to the note by providing areadback of the elements of the offenses. Defense counsel did not object to the court'sprocedure in addressing the jury note.
The Supreme Court mischaracterized the contents of the note to counsel as merelyrequesting a readback of the elements of the charged offenses rather than as indicatingthe jury's apparent erroneous impression that proof of a single element of each crime wassufficient to render a guilty verdict (cf. People v Alcide, 21 NY3d 687, 694 [2013]; Peoplev Starling, 85 NY2d 509, 516 [1995]). In thus mischaracterizing the note, theSupreme Court did not afford defense counsel the opportunity to participate in theformulation of the court's response to the jury's confusion. "Since defense counsel wasnot afforded the opportunity to provide suggestions, [s]he was prevented fromparticipating meaningfully at this critical stage of the proceedings" (People v Lockley, 84 AD3d836, 839 [2011]). "In the absence of record proof that the trial court complied withits core responsibilities under [*2]CPL 310.30, a mode ofproceedings error occurred requiring reversal" (People v Tabb, 13 NY3d 852, 853 [2009]), despite defensecounsel's failure to object to the court's treatment of the jury note (see People v Kisoon, 8 NY3d129, 135 [2007]; People v O'Rama, 78 NY2d at 279-280). Furthermore,meaningful notice of the contents of a jury note must take place on the record (see People v Powell, 101AD3d 756, 758-759 [2012]). Accordingly, contrary to the People's contention, areconstruction hearing to determine whether counsel was provided with the note off therecord would be neither appropriate nor helpful (cf. People v Fenton, 105 AD3d 1057, 1058 [2013];People v Powell, 101 AD3d at 758-759).
In light of the foregoing, the defendant's remaining contention is academic. Mastro,J.P., Balkin, Miller and LaSalle, JJ., concur.