Opinion
2013-04-24
The PEOPLE, etc., respondent, v. Mtume FENTON, also known as Champagne, appellant.
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Anastasia Spanakos of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Anastasia Spanakos of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered March 10, 2010, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the counts of the indictment charging the defendant with criminal possession of a weapon in the second degree and reckless endangerment in the first degree.
The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review ( see People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946) and, in any event, is without merit. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree and reckless endangerment in the first degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
Nonetheless, the judgment of conviction must be reversed and a new trial held, based on the Supreme Court's failure to comply with CPL 310.30 ( see generally People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189). Contrary to the People's contention, the Supreme Court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from preservation requirements and requires reversal ( see People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90;People v. Powell, 101 A.D.3d 756, 758–759, 955 N.Y.S.2d 608;People v. Curry, 101 A.D.3d 743, 745, 959 N.Y.S.2d 495;People v. Surpris, 83 A.D.3d 742, 744, 920 N.Y.S.2d 374;People v. Lewis, 77 A.D.3d 579, 580, 911 N.Y.S.2d 2). Although, during the pendency of this appeal, the People moved in the Supreme Court to resettle the record, so as to demonstrate that the Supreme Court did, in fact, reveal the contents of certain jury notes to counsel and formulate the proper responses in an off-the-record conversation, resettlement is not an appropriate remedy under the circumstances presented here ( see People v. Powell, 101 A.D.3d at 758–759, 955 N.Y.S.2d 608). In any event, even if resettlement were appropriate, a showing that the contents of the jury notes were revealed to and discussed with counsel off the record would be of no avail to the People, since this procedure would not satisfy the requirements for compliance with CPL 310.30 as set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189. “Specifically, the Court of Appeals has held that ‘whenever a substantive written jury communication is received by the Judge,’ it should be ‘read into the record in the presence of counsel,’ and that, ‘[a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses' ” ( People v. Powell, 101 A.D.3d at 759, 955 N.Y.S.2d 608, quoting People v. O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189). These requirements were not satisfied here. Accordingly, we remit the matter to the Supreme Court, Queens County, for a new trial on the counts of the indictment charging the defendant with criminal possession of a weapon in the second degree and reckless endangerment in the first degree. Since the defendant was acquitted of the counts of the indictment charging him with attempted murder in the second degree and assault in the first degree, the constitutional protection against double jeopardy precludes a retrial on those counts ( see People v. Gonzalez, 61 N.Y.2d 633, 635, 471 N.Y.S.2d 847, 459 N.E.2d 1285).
The defendant's remaining contentions are academic in light of our determination.