THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. HILLERY DUPLEASIS DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. HILLERY M. DUPLEASIS, DEFENDANT-APPELLANT.

KA 09-00200

Decided: December 30, 2010

PRESENT:  SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts two through seven of the indictment.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [3] ).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   We agree with defendant, however, that reversal is required because Supreme Court failed to comply with CPL 310.30 during jury deliberations.   Indeed, the court failed to fulfill its “core responsibility under the statute” in responding to a note from the jury at that time (People v. Kisson, 8 NY3d 129, 134).  “It is well settled that a ‘substantive written jury communication ․ should be ․ read into the record in the presence of counsel’ before the jury is summoned to the courtroom in response thereto” (People v. Piccione, _ AD3d _, _ [Nov. 12, 2010], quoting People v. O'Rama, 78 N.Y.2d 270, 277-278), and here the court responded to the jury's note in writing without providing notice thereof to the prosecutor or defense counsel.   In light of our decision, we do not address defendant's remaining contentions except to note that, in view of the date on which the crimes were committed, the court erred in imposing the DNA databank fee (see People v. McCullen, 63 AD3d 1708, 1710, lv denied 13 NY3d 747).

Patricia L. Morgan

Clerk of the Court