| People v Cotton |
| 2015 NY Slip Op 02780 [127 AD3d 778] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marcus Cotton, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A.Grob, Arieh Schulman, and Solomon Neubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered April 18, 2011, convicting him of murder in the second degree,attempted murder in the second degree, and criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
CPL 310.30 requires that trial courts give notice to the People and the defense beforeresponding to a note from a deliberating jury (see People v Silva, 24 NY3d 294, 298 [2014]; People v Walston, 23 NY3d986, 988-989 [2014]; People v O'Rama, 78 NY2d 270, 276 [1991]). Acourt's " 'core responsibility under the statute is both to give meaningful notice tocounsel of the specific content of the jurors' request—in order to ensure counsel'sopportunity to frame intelligent suggestions for the fairest and least prejudicialresponse—and to provide a meaningful response to the jury' " (Peoplev Silva, 24 NY3d at 298-299, quoting People v Kisoon, 8 NY3d 129, 134 [2007]). Meaningfulnotice means notice of the "actual specific content of the jurors' request" (People vO'Rama, 78 NY2d at 277; see People v Walston, 23 NY3d at 989), and "acourt must read a jury note 'verbatim' so that the parties have 'the opportunity toaccurately analyze the jury's deliberations and frame intelligent suggestions for thecourt's response' " (People v Silva, 24 NY3d at 299, quoting People vKisoon, 8 NY3d at 135).
"Although not every violation of CPL 310.30 is immune from normal preservationprinciples, a failure to apprise counsel about the specific contents of a substantive notefrom a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies asa mode of proceedings error," which does not require preservation (People vSilva, 24 NY3d at 299-300 [citations omitted]).
Here, the trial court's failure to share the entire contents of a substantive note fromthe jury constituted a mode of proceedings error requiring reversal (see People vWalston, 23 NY3d at 990; see also People v Morris, 120 AD3d 835 [2014]; People v Sydoriak, 120 AD3d840 [2014]).
[*2] While defensecounsel's failure to review a surveillance video in its entirety is troublesome, in light ofour determination, we need not reach the defendant's claim of ineffective assistance ofcounsel or the defendant's remaining contentions, including those raised in his pro sesupplemental brief. Rivera, J.P., Austin, Roman and Barros, JJ., concur.