| People v Gedeon |
| 2018 NY Slip Op 04751 [162 AD3d 1065] |
| June 27, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dario Gedeon, Appellant. |
Seymour W. James, Jr., New York, NY (Steven R. Berko of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J. Twersky ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil JonFiretog, J.), rendered May 31, 2011, convicting him of murder in the second degree (felonymurder), attempted robbery in the first degree, and criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was charged with murder in the second degree, and multiple counts ofattempted robbery in the first degree and criminal possession of a weapon in the second degree,for his involvement in a failed robbery attempt during which an accomplice shot and killed anemployee of the intended target, a used car dealership. After a trial, at which one of theaccomplices testified, a jury found the defendant guilty of one count of each crime.
The defendant contends that the Supreme Court erred in refusing to instruct the jury on theaffirmative defense to felony murder (see Penal Law § 125.25 [3]). Viewingthe trial evidence in the light most favorable to the defendant (see People v Butts, 72NY2d 746, 750 [1988]), there is no reasonable view of the evidence that would permit the jury tofind that each and every one of the elements of the affirmative defense was established by apreponderance of the evidence (see Penal Law § 25.00 [2]; People vBornholdt, 33 NY2d 75 [1973]). Accordingly, the court properly denied the charge request(see People v Woodard, 96 AD3d1619, 1619-1620 [2012]; People v Jackson, 208 AD2d 862 [1994]; People vButler, 201 AD2d 662, 663 [1994]; People v Gourdine, 154 AD2d 255, 256[1989]).
[*2] However, the defendant's convictionsmust be vacated and a new trial ordered as a result of the Supreme Court's failure to comply withCPL 310.30, in accordance with the procedures set forth in People v O'Rama (78 NY2d270 [1991]) for the handling of jury notes. "Criminal Procedure Law § 310.30imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberatingjury: the court must provide counsel with meaningful notice of the content of the note, and thecourt must provide a meaningful response to the jury" (People v Mack, 27 NY3d 534, 536 [2016]; see People vO'Rama, 78 NY2d at 276-277). A trial court's failure to provide meaningful notice to counselfalls within the narrow class of mode of proceedings errors for which preservation is not required(see People v Mack, 27 NY3d at 536; People v Walston, 23 NY3d 986, 989-990 [2014]; People vO'Rama, 78 NY2d at 279). Moreover, "[i]n the absence of record proof that the trial courtcomplied with its core responsibilities under CPL 310.30, a mode of proceedings error occur[s]requiring reversal" (People v Tabb,13 NY3d 852, 853 [2009]; see People v Mack, 27 NY3d at 538; People vWalston, 23 NY3d at 990).
Here, on the morning of the first day of deliberations, the Supreme Court received three notesfrom the jury requesting, among other things, "Judge's reading of charges of 1st degree &the 4 things we must prove to reach a guilty [verdict] . . . Same thing for 2nd Degree. . . Definition of unreasonable doubt." The jury also requested the transcript of thetestifying accomplice's testimony. The court did not read the contents of these notes into therecord, and there is no indication in the record that the entire contents of the notes otherwise wereshared with counsel. Rather, after receiving the notes, the court explained its intended responsesto defense counsel and the prosecutor, and then, in the presence of the jury, provided a readbackof the requested charges. The court also directed the jury to provide a new note clarifying whatportion of the accomplice testimony it wanted read back. The court thereafter received twoadditional notes from the jury. One requested the portion of the accomplice's testimonyconcerning "conversation where someone was identified as having the money in the car lot." Theother requested "From the charge: definition of 'acting in consort [sic]' and 'attempted' (a crime)."The court again did not read the contents of these notes into the record, but rather stated, in thepresence of defense counsel, the prosecutor, and the jury, "All right, ladies and gentlemen. We'regoing to read back the testimony that you requested and then I will give you the charge on actingin concert and intent." At the court's direction, the court reporter read back a portion of theaccomplice's testimony to the jury, after which the court proceeded to read back the requestedcharges as previously given.
Meaningful notice of the content of a jury note "means notice of the actual specific content ofthe jurors' request" (People v O'Rama, 78 NY2d at 277; see People v Mack, 27NY3d at 538; People v Nealon, 26NY3d 152, 156 [2015]). Where the record fails to establish that the trial court providedcounsel with "meaningful notice of the precise content of a substantive juror inquiry, a mode ofproceedings error occurs, and reversal is therefore required even in the absence of an objection"(People v Nealon, 26 NY3d at 157; see People v Tabb, 13 NY3d at 853). Becausethe record here fails to establish that the Supreme Court provided counsel with meaningful noticeof the precise content of the subject jury notes, we must reverse the defendant's convictions andorder a new trial.
Since there must be a new trial, we note that, although unpreserved for appellate review, asthe People concede, the defendant correctly contends that the Supreme Court should haveinstructed the jury on the statutory corroboration requirement with regard to the accomplice'stestimony (see CPL 60.22; People v Sage, 23 NY3d 16, 23 [2014]). Leventhal, J.P.,Hinds-Radix, LaSalle and Brathwaite Nelson, JJ., concur.