| People v Morris |
| 2017 NY Slip Op 01007 [147 AD3d 873] |
| February 8, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shane Morris, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y.Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered July 14, 2010, convicting him of assault in the first degree and criminal possession of aweapon in the second degree (two counts), upon a jury verdict, and imposing sentence. Bydecision and order dated August 27, 2014, this Court reversed the judgment, on the law, andordered a new trial (see People vMorris, 120 AD3d 835 [2014]). By opinion and order dated June 7, 2016, the Court ofAppeals reversed the decision and order of this Court and remitted the matter to this Court forconsideration of the facts and issues raised but not determined on the appeal to this Court (see People v Morris, 27 NY3d1096 [2016]).
Ordered that, upon remittitur from the Court of Appeals, the judgment is reversed, as amatter of discretion in the interest of justice, and a new trial is ordered.
The defendant was convicted of assault in the first degree and criminal possession of aweapon in the second degree (two counts) arising from the shooting of the complainant during anargument over a broken door. During deliberations, the jury sent the court a note stating: "We thejury request a readback of Gary Richards' testimony." Richards was a witness who was with thecomplainant at the time that he was shot. Without first reading the note to counsel outside of thepresence of the jury, the trial court, with all parties and the jury present, stated on the record thatthe jury had requested a "read-back of Gary Richards' testimony." It then stated "[w]e areprepared to give it to you right now. This is direct examination of Gary Richards by [theprosecutor]." At that point, the direct examination testimony of Richards was read back to thejury and then the trial court instructed the jury to return to their deliberations. Thecross-examination of Richards was not read back to the jury.
In our prior decision and order, we reversed the judgment and ordered a new trial, concludingthat the trial court had failed to provide meaningful notice and a meaningful response inaccordance with the procedure set forth in People v O'Rama (78 NY2d 270, 277-278[1991]) in handling the jury note and that these O'Rama errors were mode of proceedingserrors that did not need to be preserved (see People v Morris, 120 AD3d 835 [2014]). The Court of Appealsreversed, holding that the O'Rama errors did not constitute mode of proceedings errors,and remitted this matter to this Court for consideration of the facts and issues raised but notdetermined (see People v Morris, 27 NY3d [*2]at1098-1099).
Although the defendant's contentions regarding the jury note are unpreserved for appellatereview, as no objections were raised (see CPL 470.05 [2]), we reach them in the exerciseof our interest of justice jurisdiction (see CPL 470.15 [6] [a]). Under the circumstances ofthis case, the trial court's failure to meaningfully respond to the jury note requesting a readback ofRichards' testimony deprived the defendant of a fair trial (see CPL 310.30; People vO'Rama, 78 NY2d at 276-277). " '[A] request for a reading of testimony generally ispresumed to include cross-examination which impeaches the testimony to be read back, and anysuch testimony should be read to the jury unless the jury indicates otherwise' " (People v Clark, 108 AD3d 797,799 [2013], quoting People v Jones, 297 AD2d 256, 257 [2002]; see People vFaulkner, 195 AD2d 384, 385 [1993]). Richards was the only witness to the argument andthe shooting, other than the complainant and the defendant. Richards' cross-examinationtestimony included testimony that was relevant to the defense, directly impeached significantportions of his direct examination testimony, and was detrimental to the prosecution. As a result,the trial court's readback of only Richards' direct examination testimony in response to the jury'srequest seriously prejudiced the defendant (see People v Lourido, 70 NY2d 428, 435[1987]; People v Clark, 108 AD3d at 800; People v Smith, 68 AD3d 1021, 1022 [2009]). Dillon, J.P.,Leventhal, Hall and Cohen, JJ., concur.