| People v Sydoriak |
| 2014 NY Slip Op 06004 [120 AD3d 840] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyson Sydoriak, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered May 4, 2011, convicting him of attempted murder in the seconddegree, upon his plea of guilty, and attempted robbery in the first degree (two counts),attempted robbery in the second degree, criminal possession of a weapon in the seconddegree, attempted criminal possession of a controlled substance in the second degree, andattempted criminal possession of a controlled substance in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence adduced at trial in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
However, a new trial is required because of the trial court's failure to comply withCPL 310.30 in accordance with the procedure set forth in People v O'Rama (78NY2d 270 [1991]). During deliberations, the jury sent several notes to the trial court,three of which are at issue on this appeal. In a note marked as court exhibit 15, the jurymade several requests, beginning with the following question: "Can the jury come to adecision on some but not all counts and not be 'a hung jury?' " Without firstreading the note to counsel outside the presence of the jury, the trial court, with all partiesand the jury present, read the quoted portion of the note into the record, and thenimmediately responded to the jury's question by stating: "Well there are provisions in thelaw that deal with this, however, we haven't gotten to the point at which those provisionshave any relevance at this time." The jury subsequently sent the court two more notes,which were marked as court exhibits 16 and 17. Once again, without any consultationwith counsel, the trial court called the jury into the courtroom, and addressed these twonotes as follows: "Okay. I have both notes. One, please repeat the definition of murder inthe second degree. Two, please repeat the first five sentences of that definition, and three,please repeat 2. I assume you are talking about 2, number 2, in the verdict [*2]sheet, again, with the elements again. All right. And thenthe second note is please read back Lockwood's testimony regarding why Fresh a/k/aKenneth Robinson started shooting." The court then immediately provided theinstructions and the readback which it understood the jury to have requested.
Although the defendant failed to object to the manner in which the trial courthandled the three jury notes in question, under the circumstances of this case, theO'Rama error is not subject to the preservation requirement (see People v Walston, 23NY3d 986, 989-990 [2014]). " '[T]he trial court's core responsibility underthe statute is both to give meaningful notice to counsel of the specific content of thejurors' request—in order to ensure counsel's opportunity to frame intelligentsuggestions for the fairest and least prejudicial response—and to provide ameaningful response to the jury' " (People v Alcide, 21 NY3d 687, 692 [2013], quoting People v Kisoon, 8 NY3d129, 134 [2007]; see People v Walston, 23 NY3d at 988-989). "A court'sfailure to supply a meaningful notice or response constitutes error affecting the mode ofproceedings, and therefore presents a question of law for appellate review even in theabsence of a timely objection" (People v Alcide, 21 NY3d at 692). While a timelyobjection to an alleged O'Rama error may be required where "defense counsel. . . [has] knowledge of the substance of the court's intended response"(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 counselknew how the trial court would respond to the jury's inquiry, in court exhibit 15, as towhether it could return a partial verdict. Nor is it evident from the record that defensecounsel was aware of how the court would interpret the phrase "please repeat 2" in courtexhibit 16, or that counsel was aware of which testimony the court would deem to berelevant to "why Fresh, a/k/a Kenneth Robinson started shooting," as requested in courtexhibit 17. Rather, as far as the record reveals (see People v Tabb, 13 NY3d 852 [2009]), defense counselfirst learned of the trial court's response at the same time the jury heard it (see Peoplev Morris, 120 AD3d 835 [2014] [decided herewith]). By failing to apprisecounsel of the contents of the notes and the substance of its intended responses 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 Morris, 120 AD3d 835 [2014] [decided herewith]; People v Lockley, 84 AD3d836, 839 [2011]).
In light of our determination, we need not reach the defendant's remainingcontentions. Skelos, J.P., Lott, Roman and Cohen, JJ., concur.