Opinion
2012-12-19
The PEOPLE, etc., respondent, v. Vernon STOCKS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered December 11, 2008, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's contention that the People failed to present legally sufficient evidence of physical injury to sustain his conviction of robbery in the second degree under count two of the indictment ( seePenal Law § 160.10 [2][a] ) is unpreserved for appellate review ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, 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 physical injury ( seePenal Law § 10.00[9]; People v. Chiddick, 8 N.Y.3d 445, 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039;People v. Valencia, 50 A.D.3d 1163, 1164, 856 N.Y.S.2d 250). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt 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).
However, a new trial is required based on the Supreme Court's failure to comply with CPL 310.30. In People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30. The Court of Appeals held that “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel” ( People v. O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189). “After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Once the jury is returned to the courtroom, the communication should be read in open court” ( People v. Lockley, 84 A.D.3d 836, 837, 922 N.Y.S.2d 476;see People v. O'Rama, 78 N.Y.2d at 278, 574 N.Y.S.2d 159, 579 N.E.2d 189). “Although some deviations from this procedure may be warranted depending on the circumstances, where the court fails to fulfill its ‘core responsibility’ under CPL 310.30 by depriving the defendant of meaningful notice of the communication or a meaningful opportunity to participate in the formulation of the court's response, the error affects the mode of the proceedings” ( People v. Lockley, 84 A.D.3d at 837, 922 N.Y.S.2d 476, quoting People v. Kisoon, 8 N.Y.3d 129, 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990;see People v. O'Rama, 78 N.Y.2d at 279–280, 574 N.Y.S.2d 159, 579 N.E.2d 189). “The purpose of CPL 310.30 and the O'Rama decision is to maximize the participation of counsel at a time when counsel's input is most meaningful, that is, before the court gives its formal response to the jury” ( People v. Lockley, 84 A.D.3d at 838, 922 N.Y.S.2d 476;see People v. Cook, 85 N.Y.2d 928, 931, 626 N.Y.S.2d 1000, 650 N.E.2d 847;People v. O'Rama, 78 N.Y.2d at 278, 574 N.Y.S.2d 159, 579 N.E.2d 189).
Here, there is no evidence appearing on the face of the record that the Supreme Court read the contents of a note from the jury into the record and provided counsel a full opportunity to suggest appropriate responses ( see People v. Surpris, 83 A.D.3d 742, 744, 920 N.Y.S.2d 374). Rather, the record demonstrates that the Supreme Court violated the procedure set forth in O'Rama by reading the contents of the jury note for the first time in front of the jury and immediately providing a response ( see People v. Lockley, 84 A.D.3d at 838, 922 N.Y.S.2d 476). Significantly, in one part of the note, the jury asked for clarification as to the difference between the two counts of robbery in the second degree. This was not a request for a mere ministerial readback of the Supreme Court's charge ( cf. People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;People v. Snider, 49 A.D.3d 459, 855 N.Y.S.2d 57). Instead, that portion of the jury's note requested a substantive response ( see People v. Lockley, 84 A.D.3d at 838, 922 N.Y.S.2d 476). Since defense counsel was not afforded the opportunity to provide suggestions for the Supreme Court's response to the jury's substantive inquiry, the defendant was prevented from participating meaningfully at this critical stage of the proceeding ( see People v. O'Rama, 78 N.Y.2d at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189;People v. Lockley, 84 A.D.3d at 838, 922 N.Y.S.2d 476).
Since the jury's note contained a substantive inquiry, the Supreme Court's failure to provide counsel an opportunity to participate meaningfully in formulating its response was a mode of proceedings error that 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. Surpris, 83 A.D.3d at 744, 920 N.Y.S.2d 374;People v. Lewis, 77 A.D.3d 579, 580, 911 N.Y.S.2d 2). Accordingly, we reverse the judgment and order a new trial.
We note that the Supreme Court improperly precluded, on hearsay grounds, testimony regarding the contents of a conversation between the defendant and his purported accomplice that was relevant to the defendant's state of mind ( see People v. Kass, 59 A.D.3d 77, 86–87, 874 N.Y.S.2d 475). Since this testimony was offered for a nonhearsay purpose, it should have been admitted at trial.