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

574
KA 09-01627
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBIN KALINOWSKI, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered February 25, 2009. 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: In appeal No. 1, defendant appeals from a judgment
convicting her upon a jury verdict of murder in the second degree
(Penal Law § 125.25 [1]) and, in appeal No. 2, defendant appeals from
a judgment convicting her upon her plea of guilty of conspiracy in the
second degree (§ 105.15). With respect to appeal No. 1, defendant
contends that she is entitled to a new trial based on County Court’s
failure to comply with CPL 310.30 in handling the first note from the
jury. We agree. At the commencement of jury deliberations, the
attorneys and the court agreed that, if the jury requested certain
items of evidence, the court would provide the jury with the evidence
without first reassembling the parties in the courtroom. The first
jury note read: “The jury would like further clarification of the
path of the bullet. Does the autopsy report clarify the exact path of
the bullet wound in the decedent[’s] head - if so, can we please
hear/see the path of the wound and/or autopsy report.” 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 her attorney was even apprised of the note or its
content. Thus, it is clear that the court failed to comply with the
mandates of CPL 310.30 (see generally People v O’Rama, 78 NY2d 270,
276-278).

     We reject the contention of the People that the court’s handling
of the jury note was proper pursuant to the stipulation entered at the
                                 -2-                           574
                                                         KA 09-01627

commencement of jury deliberations. The jury did not merely request
the autopsy report or another exhibit in its first note. Rather, as
defendant correctly notes, the note can fairly be interpreted as
requesting a readback of the testimony of the Chief Medical Examiner,
who testified extensively concerning the path of the bullet in the
victim’s head. At the very least, the note is ambiguous as to whether
the jury was requesting a readback of certain testimony, as opposed to
or in addition to the autopsy report, and we conclude that the court
should therefore have notified the attorneys of the note and afforded
them an opportunity to be heard with respect to an appropriate
response. Although defendant did not object to the court’s handling
of the first jury note, preservation is not required because the court
failed to comply “with its core responsibilities under CPL 310.30” and
thereby committed a mode of proceedings error (People v Tabb, 13 NY3d
852, 853; see People v Kisoon, 8 NY3d 129, 135; see generally O’Rama,
78 NY2d at 276-277).

     Defendant further contends in appeal No. 1 that the indictment
should be dismissed because the evidence is legally insufficient to
establish that she intended to kill the victim. We reject that
contention inasmuch as the People presented ample evidence of
defendant’s intent to kill. 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 also reject defendant’s contention that the
verdict is against the weight of the evidence. Even assuming,
arguendo, that a different verdict would not have been unreasonable,
we cannot conclude that the jury failed to give the evidence the
weight it should be accorded (see People v Kalen, 68 AD3d 1666, 1667,
lv denied 14 NY3d 842; see generally People v Bleakley, 69 NY2d 490,
495). Because defendant is entitled to a new trial based on the
court’s failure to comply with CPL 310.30, we need not address her
remaining contentions in appeal No. 1.

     With respect to appeal No. 2, defendant contends that, in the
event that she is entitled to a new trial on the murder charge, her
plea of guilty to conspiracy in the second degree must be vacated. We
reject that contention. Defendant was charged with conspiracy in the
second degree and criminal solicitation in the second degree (Penal
Law § 100.10) based on her efforts to hire someone to kill her former
paramour so that he would be unable to testify at the murder trial.
After defendant was convicted of murder and sentenced to a term of
imprisonment of 25 years to life, defendant pleaded guilty to
conspiracy in the second degree and the court promised to sentence her
to a concurrent term of imprisonment. Defendant was informed prior to
sentencing that her conspiracy conviction would stand even in the
event that she was successful on her appeal from the judgment
convicting her of murder, and defense counsel acknowledged that
defendant was aware of the same when she pleaded guilty. Defendant
therefore is not entitled to vacatur of her plea inasmuch as reversal
of the murder conviction and removal of the sentence imposed thereupon
does not nullify “a benefit that was expressly promised and was a
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                                                        KA 09-01627

material inducement to the guilty plea” (People v Rowland, 8 NY3d 342,
345; see generally People v Pichardo, 1 NY3d 126,129-130).




Entered:   May 6, 2011                         Patricia L. Morgan
                                               Clerk of the Court
