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

870
KA 11-01505
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BARAK CORNELL, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (PATRICK SWANSON OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered June 13, 2011. The judgment convicted defendant,
upon a jury verdict, of arson in the second degree, criminal mischief
in the second degree and reckless endangerment in the first degree
(three counts).

     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, inter alia, arson in the second degree (Penal
Law § 150.15). We agree with defendant that County Court committed a
mode of proceedings error when it responded to a jury note off the
record, in the jury room, and outside the presence of defendant, with
no indication that defendant had waived his right to be present. CPL
310.30 provides that, upon receiving a request for further instruction
or information from the jury during deliberations, “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.” It is beyond cavil that “[a] defendant has a
fundamental right to be present at all material stages of a trial . .
. [and] CPL 310.30 makes a defendant’s right to be present during
instructions to the jury absolute and unequivocal” (People v Mehmedi,
69 NY2d 759, 760, rearg denied 69 NY2d 985; see People v Ciaccio, 47
NY2d 431, 436-437). The court properly read the jury note on the
record in the presence of defendant, defense counsel, and the
prosecutor, and it then obtained a clear stipulation from both
attorneys concerning the accuracy of its intended response to the
jury’s request for information. We nevertheless conclude that the
court committed reversible error by subsequently instructing the jury
off the record, in the jury room, and outside the presence of
                                 -2-                           870
                                                         KA 11-01505

defendant (see CPL 310.30; see generally People v O’Rama, 78 NY2d 270,
276-278).

     Because there must be a retrial, we deem it appropriate to
address defendant’s contention that the court abused its discretion by
permitting testimony concerning defendant’s prior bad acts in the
days, months, and years preceding the subject arson. “[A] defendant
is not entitled as a matter of law to pretrial notice of the People’s
intention to offer evidence pursuant to People v Molineux (168 NY 264)
or to a pretrial hearing on the admissibility of such evidence”
(People v Small, 12 NY3d 732, 733). Nevertheless, “a prosecutor
seeking to introduce Molineux evidence ‘should ask for a ruling out of
the presence of the jury’ . . . and . . . any hearing with respect to
the admissibility of such evidence should occur either before trial
or, at the latest, ‘just before the witness testifies’ ” (id., quoting
People v Ventimiglia, 52 NY2d 350, 362).

     Here, that procedure was not followed. Instead, the court
improperly afforded defense counsel a standing objection with respect
to testimony concerning defendant’s prior bad acts while affording the
prosecutor the opportunity to ask one of the victims of the arson, who
was defendant’s neighbor, about defendant’s prior bad acts over a
period as long as 10 years before the arson. It was particularly
improper to allow that witness to testify that, as a result of
defendant’s prior bad acts, he had concerns about the safety of his
children and pets. “It is fundamental that evidence concerning a
defendant’s uncharged crimes or prior misconduct is not admissible if
it cannot logically be connected to some specific material issue in
the case, and tends only to demonstrate that the defendant was
predisposed to commit the crime charged” (People v Mateo, 2 NY3d 383,
437, cert denied 542 US 946). Although defendant’s bad acts within a
few days of the arson could be deemed relevant to such issues as
motive and intent, testimony concerning defendant’s bad acts in the
preceding weeks, months or years was irrelevant to any issue in the
case and only could have prejudiced defendant by suggesting to the
jury that he was an erratic and potentially dangerous person who had
the propensity to commit the crime at issue (see generally Molineux,
168 NY at 291-294). In view of our determination to grant a new
trial, we do not address defendant’s remaining contentions.




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
