The PEOPLE, etc., respondent, v. James McGHEE, appellant.
-- February 06, 2013
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley and David P. Greenberg of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 11, 2010, convicting him of gang assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
During deliberations, the jury sent two notes to the trial justice. The record reflects that on both occasions, the Justice disclosed the notes to the prosecutor and defense counsel for the first time in the presence of the jury, and then immediately provided a formal response. In one of the notes, the jury asked the following question: “Is intent defined as premeditated desires or actions once engaged?” The Justice responded to this particular inquiry by giving a more expanded definition of intent than was provided during the initial jury instructions, including, among other things, the explanation that “[i]ntent does not require premeditation.” Defense counsel did not object to the Supreme Court's procedure in handling either of the jury notes.
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. “[W]henever 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” (id. at 278, 574 N.Y.S.2d 159, 579 N.E.2d 189). “[W]hen the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry” (id .). “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 836, 837, 922 N.Y.S.2d 476, quoting People v. Kisoon, 8 N.Y.3d 129, 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). Errors affecting the mode of proceedings need not be preserved, and manifestly prejudice the defendant (see People v. O'Rama, 78 N.Y.2d at 279–280, 574 N.Y.S.2d 159, 579 N.E.2d 189; People v. Lockley, 84 A.D.3d at 837, 922 N.Y.S.2d 476).
Here, the jury's request for a further explanation of the element of intent “called for a substantive response that required careful crafting after hearing argument from both the People and the defense” (People v. Lockley, 84 A.D.3d at 839, 922 N.Y.S.2d 476; see People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90; People v. Lewis, 77 A.D.3d 579, 911 N.Y.S.2d 2), and was not a request for a mere ministerial readback of the previous instruction on intent (cf. People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387; People v. Gerrara, 88 A.D.3d 811, 812, 930 N.Y.S.2d 646, cert denied ––– U.S. ––––, 2013 WL 57305, 2013 U.S. LEXIS 101 [US]; People v. Bryant, 82 A.D.3d 1114, 919 N.Y.S.2d 341). “Since defense counsel was not afforded the opportunity to provide suggestions, he was prevented from participating meaningfully at this critical stage of the proceedings” (People v. Lockley, 84 A.D.3d at 839, 922 N.Y.S.2d 476). “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. Tabb, 13 N.Y.3d at 853, 891 N.Y.S.2d 686, 920 N.E.2d 90), despite defense counsel's failure to object to the Supreme Court's handling of the jury's notes (see People v. Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990; People v. O'Rama, 78 N.Y.2d at 279–280, 574 N.Y.S.2d 159, 579 N.E.2d 189).
In light of this determination, the defendant's remaining contentions regarding the Supreme Court's handling of the jury notes have been rendered academic.
Accordingly, the judgment must be reversed and a new trial ordered.
Since a new trial is required, we note that the Supreme Court improvidently exercised its discretion in admitting into evidence exhibit 20, which depicted two identical photographs of the victim's head after he died, as defense counsel had offered to stipulate that the victim was the person upon whom the autopsy was later performed (see People v. Stevens, 76 N.Y.2d 833, 836, 560 N.Y.S.2d 119, 559 N.E.2d 1278).
DECISION & ORDER ON MOTION
Motion by the appellant to strike stated portions of the respondent's brief on an appeal from a judgment of the Supreme Court, Queens County, rendered May 11, 2010, on the ground that it refers to material dehors the record. By decision and order on motion of this Court dated August 30, 2012, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is granted, and those portions of the respondent's brief are deemed stricken and have not been considered in the determination of the appeal (see People v. Powell, 101 A.D.3d 756, 955 N.Y.S.2d 608).