         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1235
KA 07-02087
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LESTER WEAVER, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SHIRLEY A. GORMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered July 2, 2007. The judgment convicted defendant,
upon a jury verdict, of falsifying business records in the first
degree and petit larceny.

     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,
upon a jury verdict, of falsifying business records in the first
degree (Penal Law § 175.10) and petit larceny (§ 155.25). We reject
defendant’s contention that the evidence adduced at trial is legally
insufficient to support his conviction (see generally People v
Bleakley, 69 NY2d 490, 495). Viewed in the light most favorable to
the prosecution (see People v Contes, 60 NY2d 620, 621), the evidence
established that defendant knowingly returned unpurchased merchandise
at a T.J. Maxx store in exchange for store credit in the form of a
gift card. Defendant then used the fraudulently-obtained store credit
to purchase several other items of merchandise before he left the
store. Contrary to defendant’s contention, the “indictment ‘fairly
apprised defendant’ of the theory of the People’s case . . ., and the
slight variation in that theory [at trial] did not affect defendant’s
liability for the crimes charged” (People v Wright, 16 AD3d 1173,
1174, lv denied 5 NY3d 771; see People v Osborne, 63 AD3d 1707, 1708,
lv denied 13 NY3d 748).

     We agree with defendant, however, that County Court failed to
comply with CPL 310.20 (1) and 310.30 in handling the fourth note from
the jury received during deliberations, which requested access to a
surveillance videotape that had been admitted in evidence. In
response to the jury’s first note seeking two specified statements and
“a list of the evidence,” the court sent all of the admitted evidence
                                 -2-                          1235
                                                         KA 07-02087

to the jury with the exception of the videotape. In its third note,
the jury asked “to see the video,” and the court directed that the
jury be returned to the courtroom, whereupon the videotape was played.
The jury’s fourth note read: “We request to view the video in an
atmosphere where it can be discussed by jury as a group [and] we can
control what sections of video we watch.” The court did not read the
jury note into the record, nor did it respond to the note on the
record. In fact, there is no indication in the record that defendant
or his attorney were even apprised of the note or its contents.

     CPL 310.20 (1) provides that jurors may take with them into
deliberations “[a]ny exhibits received in evidence at the trial which
the court, after according the parties an opportunity to be heard upon
the matter, in its discretion permits them to take . . . .” The court
failed to comply with CPL 310.20 (1) in that it did not afford
defendant the opportunity to be heard regarding the jurors’ request to
view the videotape “in an atmosphere where it can be discussed by
[the] jury as a group [and] we can control what sections of video we
watch” (cf. People v Damiano, 87 NY2d 477, 487; People v Mitchell, 46
AD3d 480, lv denied 10 NY3d 842), which requires reversal. In
addition, CPL 310.30 provides that, when a deliberating jury requests
information with respect to any trial evidence, “the court must direct
that the jury be returned to the courtroom and, after notice to both
the people and counsel for the defendant, and in the presence of the
defendant, must give such requested information or instruction as the
court deems proper.” The court failed to comply with CPL 310.30 in
that it did not give notice of the jury’s request to counsel for
defendant or give any response to the jury. “In the absence of record
proof that the trial court complied with its core responsibilities
under CPL 310.30, a mode of proceedings error occurred requiring
reversal” (People v Tabb, 13 NY3d 852, 853; see People v Kisoon, 8
NY3d 129, 135; see generally People v O’Rama, 78 NY2d 270, 276-277).
Under the circumstances of this case, we reject the People’s
contention that the court’s errors in failing to comply with CPL
310.20 (1) and CPL 310.30 are harmless (see People v Cook, 85 NY2d
928, 930-931). In light of our conclusion that reversal is required,
we need not address defendant’s remaining contentions.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
