PEOPLE v. McDOWELL (2005)

County Court did not err in denying without a hearing the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of rape in the first degree (Penal Law § 130.35[1] ).   In support of the motion, defendant contended that the court violated CPL 310.30 by failing to notify defendant and defense counsel of the contents of a note from the jury submitted in response to the court's questions concerning the status of deliberations.   The note was clearly not a request for further instructions or information and, although issues under section 310.30 may be reviewed pursuant to section 440.10(1)(f) (see People v. Dixon, 221 A.D.2d 1005, 635 N.Y.S.2d 559, lv. denied 87 N.Y.2d 972, 642 N.Y.S.2d 201, 664 N.E.2d 1264), the note did not implicate the need for the procedures pursuant to People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189;  see People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607;  People v. Agosto, 73 N.Y.2d 963, 966, 540 N.Y.S.2d 988, 538 N.E.2d 340.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: