| People v Gough |
| 2016 NY Slip Op 05873 [142 AD3d 673] |
| August 24, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lamont R. Gough, Appellant. |
Seymour W. James, Jr., New York, NY (Michelle Fox and David Crow of counsel),for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, Merri Turk Lasky, and Nancy Fitzpatrick Talcott ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered January 4, 2013, convicting him of criminal sexual act in the firstdegree, burglary in the first degree (two counts), attempted aggravated sexual abuse inthe first degree, assault in the second degree, sexual abuse in the first degree, andunlawful imprisonment in the first degree, upon a jury verdict, and imposingsentence.
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 hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 491-492 [2008]). In any event, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, the defendant correctly contends that the Supreme Court's handling of ajury note failed to comply with CPL 310.30, in accordance with the procedure set forth inPeople v O'Rama (78 NY2d 270 [1991]). In O'Rama, the Court ofAppeals set forth the procedure for handling communications from the jury inaccordance with CPL 310.30. The Court of Appeals held that "whenever a substantivewritten jury communication is received by the Judge, it should be marked as a courtexhibit and, before the jury is recalled to the courtroom, read into the record in thepresence of counsel" (People v O'Rama, 78 NY2d at 277-278). "After thecontents of the inquiry are placed on the record, counsel should be afforded a fullopportunity to suggest appropriate responses. The court should then ordinarily apprisecounsel of the substance of the responsive instruction it intends to give so that counselcan seek whatever modifications are deemed appropriate [*2]before the jury is exposed to any potentially harmfulinformation. Once the jury is returned to the courtroom, the communication should beread in open court" (People vLockley, 84 AD3d 836, 837 [2011]; see People v O'Rama, 78 NY2d at278; People v Stocks, 101AD3d 1049 [2012]). "Although some deviations from this procedure may bewarranted depending on the circumstances, where the court fails to fulfill its 'coreresponsibility' under CPL 310.30 by depriving the defendant of meaningful notice of thecommunication or a meaningful opportunity to participate in the formulation of thecourt's response, the error affects the mode of the proceedings" and need not bepreserved (People v Lockley, 84 AD3d at 837, quoting People v Kisoon, 8 NY3d129, 134-135 [2007]; see People v O'Rama, 78 NY2d at 279-280; Peoplev Stocks, 101 AD3d at 1050). "The purpose of CPL 310.30 and the O'Ramadecision is to maximize the participation of counsel at a time when counsel's input ismost meaningful, that is, before the court gives its formal response to the jury"(People v Lockley, 84 AD3d at 838; see People v Cook, 85 NY2d 928[1995]; People v O'Rama, 78 NY2d at 278).
Here, the jury note requested, among other things, that the Supreme Court "defineclearly 'acting in concert.' " The court did not show the note to the attorneys orread it into the record before formulating a response. In apprising counsel of the contentsof that note, the court omitted the words "define clearly" and stated only, "They wantacting in concert. I will read that back." After the jury returned to the courtroom, thecourt again mischaracterized the note, stating: "[I]t says define acting in concert. Okay, Iam going to read my acting in concert and I will read it slow for you." The court thenreread its instructions on acting in concert.
The jury's request to "define clearly" was not a request for a "mere ministerialreadback" of the Supreme Court's charge (People v Stocks, 101 AD3d at 1051;see People v Thomas, 115AD3d 995, 996 [2014]). Meaningful notice of a jury's note "means notice of theactual specific content of the jurors' request. Manifestly, counsel cannot participateeffectively or adequately protect the defendant's rights if this specific information is notgiven" (People v O'Rama, 78 NY2d at 277; see People v Mack, 27 NY3d 534 [2016]; People v Nealon, 26 NY3d152, 156 [2015]). The court's failure to provide counsel with meaningful notice of asubstantive jury note was a mode of proceedings error (see People v Walston, 23NY3d 986 [2014]), which requires reversal of the judgment and a new trial (seePeople v Patterson, 39 NY2d 288, 295-296 [1976], affd 432 US 197[1977]).
The defendant's contention in his pro se supplemental brief relating to an allegedBrady violation (see Brady v Maryland, 373 US 83 [1963]) isunpreserved for appellate review and, in any event, without merit. The defendant'sremaining contentions, including those raised in his pro se supplemental brief, have beenrendered academic in light of our determination. Mastro, J.P., Cohen, Connolly andBrathwaite Nelson, JJ., concur.