        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

340
KA 09-01764
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRANCE L. MACK, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY A. KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered June 17, 2009. The judgment convicted
defendant, upon a jury verdict, of gang assault in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of gang assault in the first degree (Penal Law §
120.07). The gang assault resulted in the death of the victim from
two stab wounds. Although a police witness testified that between 75
and 100 people may have seen the incident, only one eyewitness
identified defendant as a participant, and that eyewitness testified
that defendant hit the victim with a bottle and held the victim while
others beat her. Defendant contends, inter alia, that it was
reversible error for County Court to accept the verdict without first
responding to three notes from the jury. We agree, and we therefore
reverse the judgment and grant a new trial.

     The record establishes that the court advised the attorneys at
6:02 p.m. that they could “remain unavailable” until 7:30 p.m., at
which time any “questions or concerns” raised by the jury would be
addressed. During that recess, the jury sent three notes into the
court. The first note stated that “we would like to have the
instructions regarding the importance of a single witness in a case
versus multiple witnesses and the instructions about the meaning of
reasonable doubt read back to us.” The second note contained a
request “to hear [the eyewitness’s] testimony regarding [defendant’s]
leaving of the crime scene” and a request for “more jury request
sheets.” The third note contained a request for a “smoke break.”
Upon reconvening at 7:51 p.m., the court read the notes into the
record in the presence of counsel. The court indicated that it would
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read the requested instructions to the jury and, while determining
whether there was testimony from the eyewitness about defendant
leaving the scene, the court received a further note at 7:54 p.m.
stating that the jury had come to a verdict. The court recessed until
8:10 p.m., at which time it accepted the verdict without any further
mention of the jury notes.

     As a preliminary matter, we conclude that “the core requirements
of CPL 310.30 [were] triggered” inasmuch as the jury requested a
readback of a portion of the testimony of the sole witness who had
identified defendant (People v Kahley, 105 AD3d 1322, 1325), as well
as a readback of certain legal instructions (see People v O’Rama, 78
NY2d 270, 277-278). We agree with defendant that, although defense
counsel failed to object to the court’s procedure of accepting the
verdict without responding to the jury’s notes, the failure of the
court to provide a meaningful response to the substantive requests of
the jury is a mode of proceedings error for which preservation is not
required (see People v Kisoon, 8 NY3d 129, 135; O’Rama, 78 NY2d at
279; cf. People v Geroyianis, 96 AD3d 1641, 1643, lv denied 19 NY3d
996, reconsideration denied 19 NY3d 1102). Indeed, “there are few
moments in a criminal trial more critical to its outcome than when the
court responds to a deliberating jury’s request for clarification of
the law or further guidance on the process of deliberations” (Kisoon,
8 NY3d at 134-135 [internal quotation marks omitted]). The jury may
have resolved the factual issue regarding whether the eyewitness
testified that she saw defendant leave the scene without further
instruction assistance from the court (see People v Sanders, 227 AD2d
506, 506, lv denied 88 NY2d 994). However, the request for a readback
of the instruction on reasonable doubt, the determination of which is
the crux of a jury’s function, and for a readback of the instruction
regarding “the importance a single witness in a case versus multiple
witnesses,” “demonstrates the confusion and doubt that existed in the
minds of the jury with respect to . . . crucial issue[s] . . . The
jury is entitled to the guidance of the court and may not be relegated
to its own unfettered course of procedure” (People v Hall, 101 AD2d
956, 957). We therefore conclude that the court’s failure to respond
to the jury’s notes seeking clarification of those instructions before
the verdict was accepted “seriously prejudiced” defendant (People v
Lourido, 70 NY2d 428, 435; see People v Clark, 108 AD3d 797, 800;
People v Smith, 68 AD3d 1021, 1022; cf. People v Agosto, 73 NY2d 963,
966; People v Lynch, 60 AD3d 1479, 1481, lv denied 12 NY3d 926).

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.

     All concur except LINDLEY, J., who dissents and votes to affirm
in the following Memorandum: I respectfully dissent. In my view, the
jury, by issuing a note stating that it had reached a verdict,
impliedly rescinded its outstanding notes requesting a readback of
certain instructions and certain testimony, and County Court therefore
did not err in concluding that “the jury had resolved its questions
and was no longer in need of the requested information” (People v
Sorrell, 108 AD3d 787, 793; see People v Cornado, 60 AD3d 450, 451, lv
denied 12 NY3d 913; People v Quintana, 262 AD2d 101, 101, lv denied 94
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                                                         KA 09-01764

NY2d 865). In any event, even assuming, arguendo, that the court
erred in failing to respond to the outstanding jury notes, I note that
defendant did not object to the court’s taking of the verdict, and his
contention that the court erred in accepting the verdict without
responding to the jury notes is thus unpreserved for our review (see
generally CPL 470.05 [2]).

     Unlike the majority, I do not perceive the court’s failure to
respond to the outstanding notes to be a mode of proceedings error
that does not require preservation (see People v Geroyianis, 96 AD3d
1641, 1643, lv denied 19 NY3d 996, reconsideration denied 19 NY3d
1102; Cornado, 60 AD3d at 451). Although providing a meaningful
response to notes from the jury is clearly among the court’s “core
responsibilities” under CPL 310.30 (People v Tabb, 13 NY3d 852, 853;
see People v O’Rama, 78 NY2d 270, 277), the statute does not expressly
require the court to respond to a note that is followed by an
announcement from the jury that it has reached a verdict. Nor is
there any case law specifically directing trial courts to respond to
outstanding notes under such circumstances. Unlike in O’Rama and its
progeny, the court here properly read the notes into the record and
solicited input from defense counsel with respect to an appropriate
response. While the court and counsel were discussing how to respond
to the notes, the jury announced that it had reached a verdict.
Despite having full knowledge of all the relevant facts, defense
counsel elected not to object to the court’s taking of the verdict
and, indeed, may well have consented to it during an off-the-record
sidebar discussion.

     As the Court of Appeals has emphasized, “[n]ot every procedural
misstep in a criminal case is a mode of proceedings error,” a term
that is “reserved for the most fundamental flaws” (People v Becoats,
17 NY3d 643, 651; see People v Alcide, 21 NY3d 687, 695). In my view,
the court’s failure to respond to the outstanding jury notes, even if
error, was not so significant or prejudicial as to constitute a
fundamental flaw in the criminal process. I would therefore affirm
the judgment of conviction.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
