PEOPLE v. GILLESPIE

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

The PEOPLE, etc., respondent, v. Raymond GILLESPIE, appellant.

Decided: August 24, 2016

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, and VALERIE BRATHWAITE NELSON, JJ. Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered January 4, 2013, convicting him of criminal sexual act in the first degree, burglary in the first degree (two counts), attempted aggravated sexual abuse in the first degree, assault in the second degree, sexual abuse in the first degree, unlawful imprisonment in the first degree, criminal contempt in the first degree, and criminal contempt in the second degree, upon a jury verdict, and rape in the first degree and burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea is vacated, and a new trial is ordered.

 With respect to the defendant's appeal from the portion of the judgment rendered upon a jury verdict, for the reasons set forth in this Court's decision and order on the codefendant's appeal (People v. Gough, –––A.D.3d ––––, ––– N.Y.S.3d ––––, 2016 WL 4443591 [decided herewith] ), the Supreme Court's mischaracterization of the contents of a particular jury note deprived defense counsel of prior meaningful notice of the contents of the note and an opportunity to suggest appropriate responses in accordance with CPL 310.30 and People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189.  Accordingly, the defendant is entitled to a new trial.

 With respect to the defendant's appeal from the portion of the judgment rendered upon his plea of guilty, the defendant is also entitled to reversal, since his plea was induced by the promise that the sentences would run concurrently with the sentences imposed upon the convictions for which he was tried by a jury (see People v. Williams, 17 N.Y.3d 834, 930 N.Y.S.2d 530, 954 N.E.2d 1155).

The defendant's remaining contention has been rendered academic in light of our determination.

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