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

1347
KA 11-01083
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEREK WILLIAMS, DEFENDANT-APPELLANT.


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

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered June 9, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree and
robbery in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following Memorandum: On
appeal from a judgment convicting him upon a jury verdict of robbery
in the first degree (Penal Law § 160.15 [3]) and robbery in the second
degree (§ 160.10 [2] [a]), defendant contends, inter alia, that
Supreme Court failed to fulfill its “core responsibility” under CPL
310.30 in responding to a jury note (People v Kisoon, 8 NY3d 129, 134;
see generally People v O’Rama, 78 NY2d 270, 276-279).

     The law on this issue is well settled. CPL 310.30 (1) provides
that, when a deliberating jury sends a note requesting further
instruction or information, “the court must direct that the jury be
returned to the courtroom and, after notice to both the [P]eople and
counsel for the defendant, and in the presence of the defendant, must
give such requested information or instruction as the court deems
proper.” In O’Rama (78 NY2d at 277-278), the Court of Appeals
provided more detailed instructions for the handling of jury notes,
and the Court subsequently indicated that a trial court’s failure to
fulfill its “core responsibilities under CPL 310.30,” such as giving
notice to defense counsel and the People of the contents of a jury
note, requires reversal even in the absence of preservation (People v
Tabb, 13 NY3d 852, 853). We have previously stated, however, that
“the core requirements of CPL 310.30 are triggered only by a
‘substantive juror inquiry’ (O’Rama, 78 NY2d at 280)[, and] that a
request by the jury for a readback of the entire testimony of a
witness is not a substantive inquiry” (People v Kahley, 105 AD3d 1322,
                                 -2-                          1347
                                                         KA 11-01083

1325).

     Here, the record contains Court Exhibit 5, a note from the jury
seeking a readback of the entire testimony of a witness, but the
transcript of the proceedings do not indicate that the court responded
to that request. The People contend that the court clerk’s notes
establish that the court responded to the jury’s request in
defendant’s presence, and thus that there was no O’Rama violation.
Those notes were not included in the stipulated record on appeal,
however, and we thus cannot determine from the record whether
defendant and his attorney were notified of the contents of the jury
note at issue. We therefore hold the case, reserve decision and remit
the matter to Supreme Court for a reconstruction hearing on that issue
(see Kahley, 105 AD2d at 1324-1325; see generally People v Cruz, 42
AD3d 901, 901; People v Russo, 283 AD2d 910, 910-911, lv dismissed 96
NY2d 867).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
