Opinion
367 KA 05-02660.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Jose GOMEZ, also known as Jim Ray, also known as Bolo, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: On a prior appeal, we affirmed the judgment convicting defendant upon a jury verdict of, inter alia, attempted assault in the second degree (Penal Law §§ 110.00, 120.05[1] ) and assault in the second degree (§ 120.05[2] ) (People v. Gomez, 38 A.D.3d 1271, 832 N.Y.S.2d 369 ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue that may have merit, i.e., whether County Court placed on the record a reasonable basis for restraining defendant before the jury (People v. Gomez, 122 A.D.3d 1345, 995 N.Y.S.2d 522 ), and we vacated our prior order. We now consider the appeal de novo.
We agree with defendant that the court erred in failing to make any findings on the record establishing that defendant needed to wear a stun belt during the trial (see People v. Buchanan, 13 N.Y.3d 1, 4, 884 N.Y.S.2d 337, 912 N.E.2d 553 ). Contrary to the People's contention, harmless error analysis is not applicable (see People v. Schrock, 99 A.D.3d 1196, 1197, 951 N.Y.S.2d 819 ). We therefore reverse the judgment and grant a new trial on counts 2, 5, and 8 through 11 of the indictment, and we dismiss count 1 of the indictment without prejudice to the People to re-present any appropriate charge under that count of the indictment to another grand jury.
We further agree with defendant that a new trial is required based on the court's failure to comply with CPL 310.30 in regard to Court Exhibit 11, a note from the jury during its deliberations. “[T]he ‘[c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict’ ” (People v. Brink, 134 A.D.3d 1390, 1391, 21 N.Y.S.3d 773 ; see People v. Kisoon, 8 N.Y.3d 129, 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ; People v. Garrow, 126 A.D.3d 1362, 1363, 5 N.Y.S.3d 648 ). Furthermore, “[w]here, as here, ‘the record fails to show that defense counsel was apprised of the specific, substantive contents of the note ... [,] preservation is not required’ ” (Brink, 134 A.D.3d at 1391, 21 N.Y.S.3d 773, quoting People v. Walston, 23 N.Y.3d 986, 990, 991 N.Y.S.2d 24, 14 N.E.3d 377 ). Contrary to the People's contention, the presumption of regularity does not apply to errors of this kind (see People v. Silva, 24 N.Y.3d 294, 299–300, 998 N.Y.S.2d 154, 22 N.E.3d 1022, rearg. denied 24 N.Y.3d 1216, 4 N.Y.S.3d 598, 28 N.E.3d 33 ).
Defendant failed to preserve for our review his contention that the conviction of attempted assault in the second degree is based on legally insufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ) and, in any event, we conclude that it is without merit. The fact that defendant's codefendant was convicted of attempted murder in the second degree and defendant was acquitted of that count but convicted of the lesser included offense of attempted assault in the second degree “does not undermine the inference of accessorial liability” (People v. Dedaj, 303 A.D.2d 285, 285, 756 N.Y.S.2d 560, lv. denied 100 N.Y.2d 580, 764 N.Y.S.2d 390, 796 N.E.2d 482 ). Viewing the evidence in light of the elements of attempted assault in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's further contention that the verdict with respect to that count is against the weight of the evidence (see People v. Thomas, 5 A.D.3d 305, 307, 774 N.Y.S.2d 137, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 307, 814 N.E.2d 479 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
In light of our determination to grant a new trial, we do not consider defendant's remaining contentions.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts 2, 5, and 8 through 11 of the indictment, and count 1 of the indictment is dismissed without prejudice to the People to re-present any appropriate charge under that count of the indictment to another grand jury.