| People v Webster |
| 2017 NY Slip Op 06198 [153 AD3d 733] |
| August 16, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Leroy Webster, Appellant. |
Lynn W. L. Fahey, New York, NY (Kathleen Whooley of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, andMichael Brenner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered September 26, 2013, convicting him of murder in the second degree, criminalpossession of a weapon in the second degree, and attempted aggravated assault upon a policeofficer, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of attemptedaggravated assault upon a police officer and the sentence imposed thereon; as so modified, thejudgment is affirmed, and a new trial is ordered on count three of the superseding indictmentcharging the defendant with attempted aggravated assault upon a police officer.
The defendant's challenge to the legal sufficiency of the evidence to support his conviction ofattempted aggravated assault upon a police officer is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of that crime beyond a reasonabledoubt (see People v Danielson, 9NY3d 342, 349 [2007]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we are satisfied that the verdict of guilt on that count was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
However, the defendant's conviction of attempted aggravated assault upon a police officermust be vacated as a result of the Supreme Court's violation of the procedure outlined inPeople v O'Rama (78 NY2d 270 [1991]) for the handling of jury notes. Duringdeliberations, the court received, among others, two jury notes requesting the testimony of thepolice officer who was the subject of the attempted aggravated assault upon a police officerconviction, and a "definition for attempted aggravated assault upon a police officer,"respectively. The court did not provide defense counsel with notice of the content of either note,but rather stated, in the presence of defense counsel, the prosecutor, and the jury, "We'vereceived your notes. We are ready for the read back." At the court's direction, the court reporterread back a portion of the record to the jury, after which the court took a short recess. Afterreconvening, and in the presence of defense counsel, the prosecutor, and the jury, the courtstated, "I give you the charge now on Attempted Aggravated Assault on a [*2]Police Officer," and proceeded to read back the charge it had givenfor that crime.
In People v O'Rama, the Court of Appeals set forth the procedure for handlingcommunications from the jury in accordance with CPL 310.30. "The Court of Appeals held that'whenever a substantive written jury communication is received by the Judge, it should bemarked as a court exhibit and, before the jury is recalled to the courtroom, read into the record inthe presence of counsel' " (People v Gough, 142 AD3d 673, 674 [2016], quoting People vO'Rama, 78 NY2d at 277-278). " 'After the contents of the inquiry are placed on therecord, counsel should be afforded a full opportunity to suggest appropriate responses. The courtshould then ordinarily apprise counsel of the substance of the responsive instruction it intends togive so that counsel can seek whatever modifications are deemed appropriate before the jury isexposed to any potentially harmful information. Once the jury is returned to the courtroom, thecommunication should be read in open court' " (People v Gough, 142 AD3d at674, quoting People v Lockley, 84AD3d 836, 837 [2011]; see Peoplev Silva, 24 NY3d 294, 299 [2014]). Where a trial court fails to provide counsel "withmeaningful notice of the precise content of a substantive juror inquiry, a mode of proceedingserror occurs, and reversal is therefore required even in the absence of an objection" (People v Nealon, 26 NY3d 152,157 [2015]; see People v Morris, 27NY3d 1096 [2016]; People vAlcide, 21 NY3d 687, 692 [2013]; People v Tabb, 13 NY3d 852, 853 [2009]; People v Kisoon, 8 NY3d 129, 134[2007]; People v O'Rama, 78 NY2d at 279).
Here, although the defendant failed to object to the manner in which the Supreme Courthandled the two notes, under the circumstances of this case, the court violated O'Ramaand committed a mode of proceedings error, obviating the need for preservation, by failing toprovide the defendant with notice of the "precise contents" of the notes prior to giving itsresponses (People v Nealon, 26 NY3d at 157; cf. People v Morris, 27 NY3d 1096 [2016]; People v Alcide, 21 NY3d 687[2013]; People v Ramirez 15 NY3d824 [2010]; People v Starling, 85 NY2d 509 [1995]). Consequently, reversal of thedefendant's conviction of attempted aggravated assault upon a police officer is required,regardless of whether the court fulfilled its responsibility under CPL 310.30 to provide the jurywith a meaningful response to its requests.
The sentences imposed on the convictions of murder in the second degree and criminalpossession of a weapon in the second degree were not excessive (see People v Suitte, 90AD2d 80 [1982]). The defendant's contention regarding the sentence imposed on the convictionof attempted aggravated assault upon a police officer need not be reached in light of ourdetermination.
The defendant's remaining contentions are without merit. Eng, P.J., Leventhal, Sgroi andMaltese, JJ., concur.