| People v Lane |
| 2015 NY Slip Op 08771 [134 AD3d 401] |
| December 1, 2015 |
| Appellate Division, First Department |
[*1](December 1, 2015)
| The People of the State of New York,Respondent, v William Lane, Also Known as Gary Rice,Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan ofcounsel), for appellant.
William Lane, appellant pro se.
Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Doris M. Gonzalez, J.), renderedDecember 6, 2010, convicting defendant, after a jury trial, of assault in the first degreeand conspiracy in the fourth degree, and sentencing him, as a persistent violent felonyoffender, to an aggregate term of 25 years to life, unanimously reversed, on the law, andthe matter remanded for a new trial.
During the course of this trial, the jury sent seven notes to the court; it is the trialcourt's handling of two of these notes (the third and fifth note), which concern us on thisappeal. The third note, sent by the jury on October 21, 2010 at 4:30 p.m., consisted ofthree parts. It was sent the same day the jury was charged and began deliberation. In thenote, among other things, the jury asked whether it could start "fresh" the next daybecause they had "a lot of information" to consider. They also asked for extensive readbacks (two days' worth) of certain testimony. The court did not read the third note in itsentirety into the record then, or at any time thereafter. The record is also devoid of anymention that the note was handed over to the attorneys to read. Instead, the court calledthe jury back into the courtroom and paraphrased only some aspects of it, omitting otherrequests of a substantive nature. The next day, October 22, at 1:20 p.m., the jury sent thefifth note stating that it was "deadlocked," indicating some dissension and asking "Whatshould we do? How should we proceed?" Unlike the third note, this one was read intothe record verbatim, but the court did not ask the attorneys for any input as to how itshould respond. No objections were made.
By only paraphrasing some of the content of the third note, and failing to read theprecise content of the that note into the record verbatim at any time, the court violated theprocedures set forth in People v O'Rama (78 NY2d 270, 277-278 [1991]), morerecently reiterated in People v Nealon (26 NY3d 152 [2015]), and previously in People v Silva (24 NY3d 294, 299 [2014], rearg denied24 NY3d 1216 [2015]; see also People v Mendez, 26 NY3d 1004 [2015]). A court does not satisfy its responsibility to provide counsel withmeaningful notice of a jury's substantive inquiry by summarizing the substance of thejurors' note (Nealon, 26 NY3d at 156). The third note, which was a substantive jury inquiry, should not havebeen paraphrased, but read in its entirety so that counsel had meaningful notice of itscontents and, therefore, an opportunity to formulate a proposed response. Althoughcounsel did not object to how the court handled the third note, the court's failure to readthis substantive note into the record verbatim, is a "mode of proceedings error," andgiven this departure, counsel was not required to object to it in order to preserve anyclaim of error for appellate review (Nealon, 26 NY3d at 157). In responding to the fifth note, which was read into the recordverbatim, the court did not elicit any recommendations or input from counsel in [*2]how to respond. Since reversal is required on the basis ofthe court's departure in handling the third note alone (id. at *4, citing People v Walston, 23 NY3d986, 990 [2014]; People vTabb, 13 NY3d 852, 853 [2009]; People v Kisoon, 8 NY3d 129, 135 [2007]), we do notreach the issue of whether the court's departure in handling the fifth note is also a basisfor reversal. Concur—Sweeny, J.P., Andrias, Saxe and Gische, JJ.