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

367
KA 05-02660
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE GOMEZ, ALSO KNOWN AS JIM RAY, ALSO KNOWN
AS BOLO, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered November 16, 2005. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
attempted assault in the second degree, assault in the second degree,
criminal possession of a weapon in the third degree, criminal mischief
in the fourth degree, petit larceny and tampering with physical
evidence.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on counts
2, 5, and 8 through 11 of the indictment, and count 1 of the
indictment is dismissed without prejudice to the People to re-present
any appropriate charge under that count of the indictment to another
grand jury.

     Memorandum: On a prior appeal, we affirmed the judgment
convicting defendant upon a jury verdict of, inter alia, attempted
assault in the second degree (Penal Law §§ 110.00, 120.05 [1]) and
assault in the second degree (§ 120.05 [2]) (People v Gomez, 38 AD3d
1271). We subsequently granted defendant’s motion for a writ of error
coram nobis on the ground that appellate counsel had failed to raise
an issue that may have merit, i.e., whether County Court placed on the
record a reasonable basis for restraining defendant before the jury
(People v Gomez, 122 AD3d 1345), and we vacated our prior order. We
now consider the appeal de novo.

     We agree with defendant that the court erred in failing to make
any findings on the record establishing that defendant needed to wear
a stun belt during the trial (see People v Buchanan, 13 NY3d 1, 4).
Contrary to the People’s contention, harmless error analysis is not
applicable (see People v Schrock, 99 AD3d 1196, 1197). We therefore
                                 -2-                           367
                                                         KA 05-02660

reverse the judgment and grant a new trial on counts 2, 5, and 8
through 11 of the indictment, and we dismiss count 1 of the indictment
without prejudice to the People to re-present any appropriate charge
under that count of the indictment to another grand jury.

     We further agree with defendant that a new trial is required
based on the court’s failure to comply with CPL 310.30 in regard to
Court Exhibit 11, a note from the jury during its deliberations.
“[T]he ‘[c]ourt committed reversible error by violating the core
requirements of CPL 310.30 in failing to advise counsel on the record
of the contents of a substantive jury note before accepting a
verdict’ ” (People v Brink, 134 AD3d 1390, 1391; see People v Kisoon,
8 NY3d 129, 134-135; People v Garrow, 126 AD3d 1362, 1363).
Furthermore, “[w]here, as here, ‘the record fails to show that defense
counsel was apprised of the specific, substantive contents of the note
. . . [,] preservation is not required’ ” (Brink, 134 AD3d at 1391,
quoting People v Walston, 23 NY3d 986, 990). Contrary to the People’s
contention, the presumption of regularity does not apply to errors of
this kind (see People v Silva, 24 NY3d 294, 299-300, rearg denied 24
NY3d 1216).

     Defendant failed to preserve for our review his contention that
the conviction of attempted assault in the second degree is based on
legally insufficient evidence (see People v Gray, 86 NY2d 10, 19) and,
in any event, we conclude that it is without merit. The fact that
defendant’s codefendant was convicted of attempted murder in the
second degree and defendant was acquitted of that count but convicted
of the lesser included offense of attempted assault in the second
degree “does not undermine the inference of accessorial liability”
(People v Dedaj, 303 AD2d 285, 285, lv denied 100 NY2d 580). Viewing
the evidence in light of the elements of attempted assault in the
second degree as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the verdict
with respect to that count is against the weight of the evidence (see
People v Thomas, 5 AD3d 305, 307, lv denied 2 NY3d 807; see generally
People v Bleakley, 69 NY2d 490, 495).

     In light of our determination to grant a new trial, we do not
consider defendant’s remaining contentions.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
