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

333
KA 13-02198
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYREL RIVERS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN HANNAY 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 (Joseph E.
Fahey, J.), rendered April 30, 2013. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
criminal possession of a weapon in the third degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of assault in the second degree (Penal Law § 120.05 [2]), and
criminal possession of a weapon in the third degree (§ 265.02 [1]),
defendant contends that the verdict is contrary to the weight of the
evidence. Viewing the evidence in light of the elements of the crimes
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that, although an acquittal would not have been unreasonable,
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). It is well settled that
“[r]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv
denied 13 NY3d 942 [internal quotation marks omitted]), and we
perceive no reason to disturb the jury’s resolution of those issues in
this case.

     We agree with defendant, however, that County Court abused its
discretion in reading back the prosecutor’s summation without also
reading back the defense summation. Initially, we reject the People’s
contention that defendant failed to preserve his contention for our
review. Defendant at least arguably objected to the readback, seeking
more time to research the issue, and the court denied the objection.
The court then granted the jury’s request for the readback and denied
defense counsel’s request for a contemporaneous readback of the
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defense summation. Therefore, the court “ ‘expressly decided the
question raised on appeal,’ thus preserving the issue for review”
(People v Smith, 22 NY3d 462, 465, quoting CPL 470.05 [2]).

     Pursuant to CPL 310.30, “the jury can request a reading of not
only evidentiary material, but also any material which is pertinent to
its deliberation, including the summations, and the trial court must
‘give such requested information or instruction as [it] deems
proper’ ” (People v Velasco, 77 NY2d 469, 474). We agree with
defendant that the court abused its discretion in reading back only
the prosecutor’s summation under the circumstances presented here.
The evidence of defendant’s guilt is not overwhelming, and the jurors
were clearly divided at times during their deliberations, as
demonstrated by their frequent requests for guidance from the court
through numerous notes. Indeed, in their seventh note, the note at
issue here, they requested a readback of the prosecutor’s summation
and, in their 11th note, they indicated that they were deadlocked on
one of the counts. Under such circumstances, “[b]y rereading only the
prosecutor’s summation, the court permitted the People an additional
opportunity to present their arguments, and their view of the
evidence, creating the potential for distracting the jurors from their
own recollection of the facts and from the arguments of defense
counsel” (People v Sullivan, 160 AD2d 161, 163, lv denied 76 NY2d 991,
reconsideration denied 77 NY2d 911). We further conclude that such
error is not harmless under these circumstances (see id. at 163-164;
see also United States v Arboleda, 20 F3d 58, 61-62 [2d Cir]). We
therefore reverse the judgment and grant a new trial.

     Defendant further contends that the court erred in sustaining, on
hearsay grounds, the prosecutor’s objections to defendant’s attempts
to introduce into evidence the recordings of certain 911 calls.
Inasmuch as we are granting a new trial, we need not address that
contention. Nonetheless, in the interest of judicial economy, we note
that those recordings were admissible as excited utterance and/or
present sense impression exceptions to the hearsay rule. An excited
utterance is “ ‘the product of the declarant’s exposure to a startling
or upsetting event that is sufficiently powerful to render the
observer’s normal reflective processes inoperative[,]’ preventing the
opportunity for deliberation and fabrication” (People v Carroll, 95
NY2d 375, 385; see generally People v Johnson, 1 NY3d 302, 306).
“ ‘Present sense impression’ declarations, in contrast, are
descriptions of events made by a person who is perceiving the event as
it is unfolding[,] . . . minimiz[ing] the opportunity for [a]
calculated misstatement as well as the risk of inaccuracy from faulty
memory” (People v Vasquez, 88 NY2d 561, 574). Here, many of the
recordings at issue were admissible under the excited utterance
exception to the hearsay rule because the evidence established that
the statements were made while the callers were “under the stress of
excitement caused by” the startling or upsetting events that they
described (People v Edwards, 47 NY2d 493, 497; see People v Miller,
115 AD3d 1302, 1303, lv denied 23 NY3d 1040). In addition, some of
those calls, and the remaining calls, were made by people who
described events that were occurring, and the description of the
events given by the prosecution witnesses provided the “additional
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                                                         KA 13-02198

indicia of reliability” that rendered them admissible under the
present sense impression exception (People v Brown, 80 NY2d 729, 736;
see People v Ross, 112 AD3d 972, 973, lv denied 22 NY3d 1158; cf.
People v Mulligan, 118 AD3d 1372, 1373, lv denied 25 NY3d 1075).

     Defendant’s remaining contentions are moot in light of our
determination.




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