PEOPLE v. CRUZ (2007)

 On appeal from a judgment convicting him following a jury trial of two counts of assault in the first degree (Penal Law § 120.10[1] ), defendant contends that Supreme Court erred in failing to respond in a proper manner to a jury note requesting an exhibit.   It is well settled that, upon a jury request for further information during deliberations, “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 ․ as the court deems proper” (CPL 310.30).   Further, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and ․ read into the record in the presence of counsel” (People v. O'Rama, 78 N.Y.2d 270, 277-278, 574 N.Y.S.2d 159, 579 N.E.2d 189;  see People v. Roberts, 236 A.D.2d 848, 849, 653 N.Y.S.2d 1002, lv. denied 89 N.Y.2d 1040, 659 N.Y.S.2d 871, 681 N.E.2d 1318).   Although it appears on the record before us that there was a jury note, the record is silent with respect to the court's response to the note, and we conclude that “further inquiry of the trial court, the prosecutor, defense counsel and the court reporter is required to determine whether [there was a jury note and, if so, what] action was taken with regard to the jury note” (People v. Martinez, 186 A.D.2d 14, 15, 586 N.Y.S.2d 975;  see People v. Russo, 283 A.D.2d 910, 723 N.Y.S.2d 917, lv. dismissed 96 N.Y.2d 867, 730 N.Y.S.2d 42, 754 N.E.2d 1125).   We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on those issues.

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for a reconstruction hearing.

MEMORANDUM: