| People v Smith |
| 2015 NY Slip Op 08646 [133 AD3d 548] |
| November 24, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Sentell Smith, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Alan S. Axelrod ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedFebruary 13, 2013, convicting defendant, after a jury trial, of conspiracy in the fourth andfifth degrees, criminal sale of a firearm in the first degree, criminal possession of aweapon in the third degree, 10 counts of criminal sale of a firearm in the third degree andseven counts of criminal possession of a weapon in the second degree, and sentencinghim, as a second felony offender, to an aggregate term of 42 years, unanimouslyreversed, on the law, and the matter remanded for a new trial.
The court failed to meet its core responsibilities under People v O'Rama (78NY2d 270, 277 [1991]) to provide defense counsel with "meaningful notice" of a jurynote and to provide the jury with a "meaningful response." The note requested "copies ofall the telephone conversations recorded and copies of all the video recordings" and "acopy of the transcript of the court proceedings that we are allowed to see."
As to its duty to provide notice to counsel, while the court stated that defense counselwas "aware" of the note, it made that statement at a time when counsel was out of thecourtroom. Prior to the lunch recess, the court instructed the court officer to apprise thejury "that the written documents they request are not available to a jury under anycircumstances," without consulting with defense counsel about this response, andwithout defense counsel being present.
While the court did read the full substance of the note after the lunch recess, therecord fails to show that defense counsel had returned by that time. In fact, the transcriptstrongly suggests counsel was not there because the court had allowed defense counseladditional time for lunch. "Where a trial transcript does not show compliance withO'Rama's procedure as required by law, we cannot assume that the omission wasremedied at an off-the-record conference that the transcript does not refer to" (People v Walston, 23 NY3d986, 990 [2014]).
The court also failed to give the jury a "meaningful response" to its request. First,when the jury returned to the courtroom, the court did not read the note into the record,and instead stated, "Unless anybody has forgotten what you've asked for, I will not readthe notes now in order to save time." Then, while the court correctly informed the jurythat it could not receive a transcript of court proceedings, and also provided it with avideo playback of at least some of the matter requested in the note, there is no record thatthe jury was ever supplied with "copies of all of the telephone conversations recorded,"and the court never addressed this aspect of the request anywhere in the record.
Although not all the O'Rama violations are mode of proceedings errors, here,where the exact wording of the juror note was never read in the presence of counsel so anobjection could be made, preservation is not required (People v Nealon, 26 NY3d 152 [2015]). Since we are ordering a new trial, wefind it unnecessary to reach any other issues except for defendant's challenge to his [*2]predicate status, which we reject. Concur—Acosta,J.P., Saxe, Richter, Gische and Kapnick, JJ.