| People v Morris |
| 2014 NY Slip Op 06000 [120 AD3d 835] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shane Morris, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andSharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered July 14, 2010, convicting him of assault in the first degree andcriminal possession of a weapon 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 allegedly shot the complainant in the face during an argument over abroken door. The defendant was convicted of assault in the first degree and two counts ofcriminal possession of a weapon in the second degree.
During deliberations, the jury sent the court a note stating: "We the jury request areadback of Gary Richards' testimony." Richards was a witness who was with thecomplainant at the time that he was shot. Without first reading the note to counseloutside of the presence of the jury, the trial court, with all parties and the jury present,stated on the record that the jury had requested a "read-back of Gary Richards'stestimony." It then stated "[w]e are prepared to give it to you right now. This is directexamination of Gary Richards by [the prosecutor]." At that point, the direct examinationtestimony of Richards was read back to the jury and then the trial court instructed the juryto return to their deliberations. The cross-examination of Richards was not read back tothe jury.
On appeal, the defendant contends that the trial court's procedure for handling thejury note requesting a readback of Richards's testimony violated the procedure forcomplying with CPL 310.30 set forth in People v O'Rama (78 NY2d 270,277-278 [1991]). Although the defendant failed to object to the manner in which the trialcourt handled the note, under the circumstances of this case, the O'Rama error isnot subject to the preservation requirement (see People v Walston, 23 NY3d 986, 989-990 [2014])." '[T]he trial court's core responsibility under the statute is both to givemeaningful notice to counsel of the specific content of the jurors' request—inorder to ensure counsel's opportunity to frame intelligent suggestions for the fairest andleast prejudicial response—and to provide a meaningful response to thejury' " (People vAlcide, 21 NY3d 687, 692 [2013], quoting People v Kisoon, 8 NY3d 129, 134 [2007]; see Peoplev Walston, 23 NY3d at 988-989). "A court's failure to supply a meaningful notice orresponse constitutes error affecting the mode of proceedings, and therefore presents aquestion of law for appellate review even in the absence of a timely objection"(People v Alcide, 21 NY3d at 692). While a timely objection to an allegedO'Rama error may be required where the jury requests a readback and "defensecounsel . . . [has] knowledge of the substance of the court's intendedresponse" (People v Starling, 85 NY2d 509, 516 [1995]; see People v Ramirez, 15NY3d 824, 825 [2010]), here, it is not evident from the record that defense counselwas aware that the trial court would give only part of a witness's testimony in response toa jury note, such as the one at issue here, requesting a readback. By failing to apprisecounsel of the content of the note and the substance of its intended response beforecalling in the jury, the trial court "failed to meet its core responsibilities of providingdefense counsel with meaningful notice and an opportunity to provide input so that thecourt could give the jury a meaningful response" (People v Walston, 23 NY3d at990; see People v Lockley,84 AD3d 836, 839 [2011]).
Furthermore, by providing the jury with only a partial readback, the trial courtviolated its separate obligation under CPL 310.30 to provide a "meaningful response" tothe jury (People v Kisoon, 8 NY3d at 134). While defense counsel did not objectto the partial readback, this error, too, is not subject to the preservation rule, since it isevident from the record that the trial court failed to satisfy this core responsibility (seeid. at 134-135). Although a defense counsel who is given notice of the trial court'sintended response might be expected to object at a time when counsel "had anopportunity to ask [the court] to alter course" (People v Alcide, 21 NY3d at 694),counsel here had no such opportunity because he learned of the trial court's response atthe same time the jury heard it. The trial court failed to meaningfully respond to the notewhen it failed to include in the readback the cross-examination of Richards, whichincluded testimony that was detrimental to the prosecution and relevant to the defense.Among other things, Richards's testimony on cross-examination revealed that he wasintoxicated when he was interviewed by the police on the night of the incident. Richardsalso testified on cross-examination that he truthfully told the police on the night of theincident that the complainant had a dispute with an unknown male, even though Richardstestified on direct examination that he had seen the defendant on approximately a dozenprior occasions. Further, Richards testified on cross-examination that the complainantwas holding a bag containing a 40-ounce bottle of beer while he was arguing with thedefendant, despite testifying on direct examination that the complainant had nothing inhis hands. As a result, the trial court's failure to provide the jury with Richards'stestimony on cross-examination during the readback seriously prejudiced the defendant(see People v Clark, 108AD3d 797, 800 [2013]; People v Lewis, 262 AD2d 584, 584 [1999]; see also People v Smith, 68AD3d 1021, 1022 [2009]; People v Brown, 262 AD2d 569, 569[1999]).
The defendant's contention that the trial court's instructions to the jury on the issue ofreasonable doubt were constitutionally inadequate is without merit because theinstructions, on the whole, conveyed the correct standard to be employed by the jury(see People v Fields, 87 NY2d 821, 823 [1995]; People v King, 73 AD3d1083, 1084 [2010]; Peoplev Coles, 62 AD3d 1022, 1023 [2009]; People v Love, 37 AD3d 618, 619 [2007]; People v Sanchez, 29 AD3d608 [2006]; People v Reyes, 207 AD2d 362, 362-363 [1994]). However, thetrial court is cautioned to rely on the most recent version of New York's Criminal JuryInstructions rather than recite from older versions. Dillon, J.P., Leventhal, Hall andCohen, JJ., concur.