Opinion
No. 1869 Ind. No. 3438/16 4838/16 -1869A Case No. 2019-1472
04-30-2024
The People of the State of New York, Respondent, v. Richard Jamison, Appellant.
Twyla Carter, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Max Bernstein of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Max Bernstein of counsel), for respondent.
Before: Singh, J.P., González, Scarpulla, Higgitt, Rosado, JJ.
Judgments, Supreme Court, New York County (Bonnie G. Wittner, J., at plea; Diane Kiesel, J., at jury trial and sentencing), rendered August 21, 2018, convicting defendant, after a jury trial, of criminal contempt in the first degree (three counts), and also convicting him, upon his plea of guilty, of criminal contempt in the first degree, and sentencing him to an aggregate term of 2 ⅔ to 8 years, unanimously modified, on the law, to the extent of vacating the conviction under indictment No. 4838/16 and remanding for a new trial, and otherwise affirmed.
During deliberations, the jury sent out five notes, four of which are not at issue. The first note asked for all the evidence to be provided for the jury to review. The second note asked for a written explanation of the court's instructions and defendant's full testimony. The third note again requested defendant's testimony. The fifth and final note, signed at 12:35 p.m., on June 22, stated that the jury had reached a verdict. Each of these notes were read into the record, discussed between counsel and the court, following which a response was given to the jury.
The jury's fourth note, pertained to count one of the indictment No. 4838/16, which charged defendant with first-degree criminal contempt under Penal Law § 215.51(b)(ii).
The fourth note stated: "We the jury request to hear the judge's reading of count 1, including definitions and detail. Further, can you please confirm if it is up to our determination to decide if something is considered as "course of conduct" and "act"? As written on the verdict sheet, count 1 states "engaging in a course off conduct," we want to confirm if this is a typo or not."
As the People concede, the record does not indicate that the court gave defense counsel meaningful notice - or any notice - of the contents of the note or that it ever responded to the jury's fourth note (see People v O'Rama, 78 N.Y.2d 270 [1991]; People v Burley, 138 A.D.3d 420, 421 [1st Dept 2016], lv denied 27 N.Y.3d 1129 [2016]).
The Court of Appeals has held that "in the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal" (People v Parker, 32 N.Y.3d 49, 60-61 [2018] [internal quotation marks omitted]).
We therefore reverse defendant's conviction and remand for a new trial under indictment No. 4838/16 (see People v Everett, 191 A.D.3d 696 [2d Dept 2021]; People v Gough, 142 A.D.3d 673, 675 [2d Dept 2016]).
We reject the People's argument that the fourth note bore only on the charge under count one of indictment No. 4838/16, and that defendant's convictions under counts two and three remain unaffected by this error and should be affirmed.
When an O'Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with 'due regard' for the facts of the case, the nature of the error, and the 'potential for prejudicial impact on the over-all outcome' (People v Doshi, 93 N.Y.2d 499, 504-505 [1999], quoting People v Baghai-Kermani, 84 N.Y.2d 525, 532 [1994]).
Here, the three counts of the indictment were alleged to arise from a course or repetition of conduct in violation of the order of protection reasonably perceived as threatening to the victim's safety (count 1), through means both electronic/written (count 2) and telephonic (count 3). Thus, given the underlying factual relationship between the crimes, defendant is entitled to a new trial (see People v Cohen, 50 N.Y.2d 908, 911 [1980]; People v Thomas, 146 A.D.3d 991, 994 [2d Dept 2017], lv denied 29 N.Y.3d 1039 [2017]).
The trial court's failure to give defense counsel meaningful notice may also have affected the jury's consideration of counts two and three (see Thomas, 146 A.D.3d at 994; see also Doshi, 93 N.Y.2d at 505; Baghai-Kermani, 84 N.Y.2d at 532-533).
Defendant raises no arguments as to his conviction by guilty plea under indictment No. 3438/16.
Since defendant has completed his entire sentence, including parole supervision, his excessive sentence claim is moot (see People v Torres, 209 A.D.3d 541, 542 [1st Dept 2022], lv denied 40 N.Y.3d 952 [2023]).