Opinion
2014-01-3
The PEOPLE of the State of New York, Respondent, v. Derek WILLIAMS, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered June 9, 2010. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree and robbery in the second degree. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jasmine Liverpool, Susan C. Ministero, of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered June 9, 2010. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree and robbery in the second degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jasmine Liverpool, Susan C. Ministero, of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[3] ) and robbery in the second degree (§ 160.10[2][a] ), defendant contends, inter alia, that Supreme Court failed to fulfill its “core responsibility” under CPL 310.30 in responding to a jury note (People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990; see generally People v. O'Rama, 78 N.Y.2d 270, 276–279, 574 N.Y.S.2d 159, 579 N.E.2d 189).
The law on this issue is well settled. CPL 310.30(1) provides that, when a deliberating jury sends a note requesting further instruction or information, “the court must direct that the jury be returned to the courtroom and, after notice to both the [P]eople and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” In O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189, the Court of Appeals provided more detailed instructions for the handling of jury notes, and the Court subsequently indicated that a trial court's failure to fulfill its “core responsibilities under CPL 310.30,” such as giving notice to defense counsel and the People of the contents of a jury note, requires reversal even in the absence of preservation (People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90). We have previously stated, however, that “the core requirements of CPL 310.30 are triggered only by a ‘substantive juror inquiry’ (O'Rama, 78 N.Y.2d at 280, 574 N.Y.S.2d 159, 579 N.E.2d 189)[, and] that a request by the jury for a readback of the entire testimony of a witness is not a substantive inquiry” (People v. Kahley, 105 A.D.3d 1322, 1325, 963 N.Y.S.2d 487).
Here, the record contains Court Exhibit 5, a note from the jury seeking a readback of the entire testimony of a witness, but the transcript of the proceedings do not indicate that the court responded to that request. The People contend that the court clerk's notes establish that the court responded to the jury's request in defendant's presence, and thus that there was no O'Rama violation. Those notes were not included in the stipulated record on appeal, however, and we thus cannot determine from the record whether defendant and his attorney were notified of the contents of the jury note at issue. We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on that issue ( see Kahley, 105 A.D.2d at 1324–1325, 963 N.Y.S.2d 487; see generally People v. Cruz, 42 A.D.3d 901, 901, 839 N.Y.S.2d 653; People v. Russo, 283 A.D.2d 910, 910–911, 723 N.Y.S.2d 917, lv. dismissed96 N.Y.2d 867, 730 N.Y.S.2d 42, 754 N.E.2d 1125).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings. SMITH, J.P., FAHEY, LINDLEY, SCONIERS, and WHALEN, JJ., concur.