Opinion
April 17, 1995
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
During its deliberations, the jury sent a note to the trial court which read, "Do we have to vote on both counts?". The trial court sent a clerk to respond to this inquiry, instructing him as follows: "Yes, just say yes. If they want further information, let me know and we'll bring them out". The response to the jury's question formulated by the court constituted an instruction on a question of law, and thus the delivery of this instruction to the jury should not have been delegated to the clerk (see, People v Coons, 75 N.Y.2d 796; People v Torres, 72 N.Y.2d 1007; People v Mehmedi, 69 N.Y.2d 759; People v Ahmed, 66 N.Y.2d 307; People v Lara, 199 A.D.2d 419; People v Rogoski, 194 A.D.2d 754; People v Jones, 159 A.D.2d 644; cf., People v Lykes, 81 N.Y.2d 767; People v Bonaparte, 78 N.Y.2d 26; People v Buxton, 192 A.D.2d 289; People v Harrison, 192 A.D.2d 551; People v Torres, 191 A.D.2d 601; People v Smith, 181 A.D.2d 844). A new trial is therefore necessary.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
We have reviewed the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Pizzuto, Hart and Krausman, JJ., concur.