Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13