| People v Diaz |
| 2017 NY Slip Op 04044 [150 AD3d 538] |
| May 18, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jason Diaz, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Juan M. Merchan, J., at suppression hearing;Ronald A. Zweibel, J., at jury trial and sentencing), rendered April 4, 2013, convicting defendantof two counts of criminal possession of a weapon in the second degree, and sentencing him, as asecond violent felony offender, to concurrent terms of 15 years, unanimously reversed, on thelaw, and the matter remanded for a new trial.
The record does not reflect that the court read or showed a jury note to the parties or affordedthem an opportunity to provide input before the court responded to the note, and it cannot bepresumed that the court complied with CPL 310.30 in a preceding off-the-record conference (see People v Silva, 24 NY3d 294,299-300 [2014]; People v Walston,23 NY3d 986, 990 [2014]). Although defendant's challenge to the court's handling of thenote is concededly unpreserved, the court failed to comply with the core requirements ofPeople v O'Rama (78 NY2d 270 [1991]), which constitutes a mode of proceedings errorrequiring reversal (see id. at 279-280; see also People v Tabb, 13 NY3d 852 [2009]; People v Robinson, 144 AD3d 40[1st Dept 2016]). Since the note, along with all other jury notes in this case, have been lost, it isimpossible to determine whether the court read the note verbatim in court when it gave itssupplemental instruction. Moreover, the phrasing of the court's description of the note isconsistent with it having been a paraphrase or summary of the note. Therefore, the preservationrequirement set forth in People vNealon (26 NY3d 152, 154 [2015]) does not apply.
Since we are remanding for a new trial, we find it unnecessary to consider defendant'sremaining arguments, except that we find that defendant's suppression motion was properlydenied (see e.g. People v Montague, 175 AD2d 54 [1st Dept 1991]).Concur—Tom, J.P., Mazzarelli, Manzanet-Daniels and Webber, JJ.