| People v Wiggs |
| 2015 NY Slip Op 05707 [130 AD3d 659] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Iquan Wiggs, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Elizabeth Budnitz of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Daniel Bresnahan, and Deborah E. Wassel of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J.), rendered August 6, 2013, convicting him of robbery in the second degree andmenacing in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's contention that the evidence was legally insufficient to support hisconviction of robbery in the second degree and menacing in the third degree because theprosecution failed to establish his identity as the perpetrator of those crimes isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People vDelgado, 109 AD3d 483 [2013]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), itwas legally sufficient to establish the defendant's identity beyond a reasonable doubt (see People v Delgado, 109AD3d 483 [2013]; People vAmico, 78 AD3d 1190 [2010]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]) we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as toboth crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [1992]).
The defendant, however, correctly contends that the trial court's handling of a jurynote failed to comply with CPL 310.30, in accordance with the procedure set forth inPeople v O'Rama (78 NY2d 270 [1991]). A court's " 'core responsibilityunder the statute is both to give meaningful notice to counsel of the specific content ofthe jurors' 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 Silva, 24 NY3d 294, 298-299 [2014], quoting People v Kisoon, 8 NY3d129, 134 [2007]). "Where the record fails to show that defense counsel was apprisedof the specific, substantive contents of the note . . . preservation is notrequired" (People vWalston, 23 NY3d 986, 990 [2014], citing People v Tabb, 13 NY3d 852 [2009]). Furthermore, "wecannot assume that [such [*2]an] omission was remediedat an off-the-record conference that the transcript does not refer to" (People vWalston, 23 NY3d at 990).
Here, the jury note requested a readback of the defense witnesses' alibi testimony.This note was read for the first time on the record before all parties and the jury.Immediately thereafter, the trial court read a second note from the jury advising that averdict had been reached, at which point the verdict was pronounced. The trial courtfailed to meet its "core responsibilities" (People v Walston, 23 NY3d at 990),since defense counsel was not alerted on the record to the contents of the note and to thecourt's intended response, or nonresponse, prior to calling back the jury (see id.)."[A]lthough a defense counsel who is given notice of the trial court's intended responsemight be expected to object at a time when counsel 'had an opportunity to ask [the court]to alter course' (People v Alcide, 21 NY3d [687,] 694 [(2013)]), counsel here hadno such opportunity because he learned of the trial court's response at the same time thejury heard it" (People vMorris, 120 AD3d 835, 836 [2014]). The defendant was thus deprived of anyopportunity to voice opposition to the trial court's decision to pass over the first note andproceed directly to the verdict without further inquiry.
Accordingly, the judgment must be reversed and a new trial ordered. Skelos, J.P.,Hall, Sgroi and Barros, JJ., concur.