| People v Mack |
| 2014 NY Slip Op 03075 [117 AD3d 1450] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTerrance L. Mack, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey A. Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered June 17, 2009. The judgment convicted defendant, upon a jury verdict, of gangassault in the first 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 gang assault in the first degree (Penal Law § 120.07). The gangassault resulted in the death of the victim from two stab wounds. Although a policewitness testified that between 75 and 100 people may have seen the incident, only oneeyewitness identified defendant as a participant, and that eyewitness testified thatdefendant hit the victim with a bottle and held the victim while others beat her.Defendant contends, inter alia, that it was reversible error for County Court to accept theverdict without first responding to three notes from the jury. We agree, and we thereforereverse the judgment and grant a new trial.
The record establishes that the court advised the attorneys at 6:02 p.m. that theycould "remain unavailable" until 7:30 p.m., at which time any "questions or concerns"raised by the jury would be addressed. During that recess, the jury sent three notes intothe court. The first note stated that "we would like to have the instructions regarding theimportance of a single witness in a case versus multiple witnesses and the instructionsabout the meaning of reasonable doubt read back to us." The second note contained arequest "to hear [the eyewitness's] testimony regarding [defendant's] leaving of the crimescene" and a request for "more jury request sheets." The third note contained a requestfor a "smoke break." Upon reconvening at 7:51 p.m., the court read the notes into therecord in the presence of counsel. The court indicated that it would read the requestedinstructions to the jury and, while determining whether there was testimony from theeyewitness about defendant leaving the scene, the court received a further note at 7:54p.m. stating that the jury had come to a verdict. The court recessed until 8:10 p.m., atwhich time it accepted the verdict without any further mention of the jury notes.
As a preliminary matter, we conclude that "the core requirements of CPL 310.30[were] [*2]triggered" inasmuch as the jury requested areadback of a portion of the testimony of the sole witness who had identified defendant(People v Kahley, 105AD3d 1322, 1325 [2013]), as well as a readback of certain legal instructions (seePeople v O'Rama, 78 NY2d 270, 277-278 [1991]). We agree with defendant that,although defense counsel failed to object to the court's procedure of accepting the verdictwithout responding to the jury's notes, the failure of the court to provide a meaningfulresponse to the substantive requests of the jury is a mode of proceedings error for whichpreservation is not required (seePeople v Kisoon, 8 NY3d 129, 135 [2007]; O'Rama, 78 NY2d at 279;cf. People v Geroyianis, 96AD3d 1641, 1643 [2012], lv denied 19 NY3d 996 [2012],reconsideration denied 19 NY3d 1102 [2012]). Indeed, "there are few momentsin a criminal trial more critical to its outcome than when the court responds to adeliberating jury's request for clarification of the law or further guidance on the processof deliberations" (Kisoon, 8 NY3d at 134-135 [internal quotation marksomitted]). The jury may have resolved the factual issue regarding whether the eyewitnesstestified that she saw defendant leave the scene without further instruction assistancefrom the court (see People v Sanders, 227 AD2d 506, 506 [1996], lvdenied 88 NY2d 994 [1996]). However, the request for a readback of the instructionon reasonable doubt, the determination of which is the crux of a jury's function, and for areadback of the instruction regarding "the importance a single witness in a case versusmultiple witnesses," "demonstrates the confusion and doubt that existed in the minds ofthe jury with respect to . . . crucial issue[s] . . . The jury isentitled to the guidance of the court and may not be relegated to its own unfetteredcourse of procedure" (People v Hall, 101 AD2d 956, 957 [1984]). We thereforeconclude that the court's failure to respond to the jury's notes seeking clarification ofthose instructions before the verdict was accepted "seriously prejudiced" defendant(People v Lourido, 70 NY2d 428, 435 [1987]; see People v Clark, 108 AD3d797, 800 [2013]; People vSmith, 68 AD3d 1021, 1022 [2009]; cf. People v Agosto, 73 NY2d 963,966 [1989]; People vLynch, 60 AD3d 1479, 1481 [2009], lv denied 12 NY3d 926[2009]).
We have reviewed defendant's remaining contentions and conclude that they arewithout merit.
All concur except Lindley, J., who dissents and votes to affirm in the followingmemorandum.
Lindley, J. (dissenting). I respectfully dissent. In my view, the jury, by issuing a notestating that it had reached a verdict, impliedly rescinded its outstanding notes requestinga readback of certain instructions and certain testimony, and County Court therefore didnot err in concluding that "the jury had resolved its questions and was no longer in needof the requested information" (People v Sorrell, 108 AD3d 787, 793 [2013]; see People v Cornado, 60AD3d 450, 451 [2009], lv denied 12 NY3d 913 [2009]; People vQuintana, 262 AD2d 101, 101 [1999], lv denied 94 NY2d 865 [1999]). Inany event, even assuming, arguendo, that the court erred in failing to respond to theoutstanding jury notes, I note that defendant did not object to the court's taking of theverdict, and his contention that the court erred in accepting the verdict withoutresponding to the jury notes is thus unpreserved for our review (see generallyCPL 470.05 [2]).
Unlike the majority, I do not perceive the court's failure to respond to the outstandingnotes to be a mode of proceedings error that does not require preservation (see People v Geroyianis, 96AD3d 1641, 1643 [2012], lv denied 19 NY3d 996 [2012],reconsideration denied 19 NY3d 1102 [2012]; Cornado, 60 AD3d at451). Although providing a meaningful response to notes from the jury is clearly amongthe court's "core responsibilities" under CPL 310.30 (People v Tabb, 13 NY3d 852, 853 [2009]; see People vO'Rama, 78 NY2d 270, 277 [1991]), the statute does not expressly require the courtto respond to a note that is followed by an announcement from the jury that it hasreached a verdict. Nor is there any case law specifically directing trial courts to respondto outstanding notes under such circumstances. Unlike in O'Rama and itsprogeny, the court here properly read the notes into the record and solicited input fromdefense counsel with respect to an appropriate response. While the court and counselwere discussing how to respond to the notes, the jury announced that it had reached averdict. Despite having full knowledge of all the [*3]relevant facts, defense counsel elected not to object to thecourt's taking of the verdict and, indeed, may well have consented to it during anoff-the-record sidebar discussion.
As the Court of Appeals has emphasized, "[n]ot every procedural misstep in acriminal case is a mode of proceedings error," a term that is "reserved for the mostfundamental flaws" (People vBecoats, 17 NY3d 643, 651 [2011]; see People v Alcide, 21 NY3d 687, 695 [2013]). In myview, the court's failure to respond to the outstanding jury notes, even if error, was not sosignificant or prejudicial as to constitute a fundamental flaw in the criminal process. Iwould therefore affirm the judgment of conviction. Present—Scudder, P.J.,Peradotto, Carni and Lindley, JJ.