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

802
KA 13-01729
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CRAIG OWENS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered April 17, 2013. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of murder in the second degree (Penal Law § 125.25
[1]). Contrary to defendant’s contention, the verdict is not against
the weight of the evidence with respect to the element of intent. The
evidence established that the victim had been severely beaten over a
period of several hours and that, although those injuries would have
eventually resulted in her death, the victim was then strangled to
death. Thus, viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that a different verdict would have been
unreasonable (see id. at 348; People v Bleakley, 69 NY2d 490, 495).

      Contrary to defendant’s further contention, County Court did not
abuse its discretion in admitting in evidence two photographs
depicting the victim’s injuries. That evidence was relevant with
respect to defendant’s intent and the investigating police officer’s
determination to treat the victim’s death as a homicide, and to
corroborate the Medical Examiner’s testimony regarding the victim’s
injuries (see People v Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d
886).

     We nevertheless conclude that a mode of proceedings error
occurred and reversal is required because the record fails to show
that defense counsel was advised of the contents of a jury note
requesting, inter alia, further instruction on reasonable doubt,
                                 -2-                          802
                                                        KA 13-01729

murder in the second degree and manslaughter in the first degree (see
People v Mack, 27 NY3d 534, 541-542, rearg denied 28 NY3d 944; People
v Silva, 24 NY3d 294, 299-300, rearg denied 24 NY3d 1216; People v
Walston, 23 NY3d 986, 989-990). Moreover, because the record does not
establish that the court advised defense counsel of the contents of
the note, we cannot assume that the court complied with its core
responsibilities pursuant to CPL 310.30 and People v O’Rama (78 NY2d
270) (see Silva, 24 NY3d at 300; Walston, 23 NY3d at 990; see
generally People v Nealon, 26 NY3d 152, 160-162). We therefore
reverse the judgment and grant a new trial. In light of our
determination, there is no need to address defendant’s remaining
contention.




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
