Judge’s Failure to Properly Handle Note from Jury Was Reversible Error

The Second Department determined the trial judge’s failure to follow the proper procedure for answering a note from the jury was reversible error.  The jury sent out a note requesting a readback of alibi testimony. Just after that note was read to the jury and the parties for the first time, the trial judge read a second note which indicated the jury had reached a verdict.  Without addressing the first note, the verdict was pronounced. Defense counsel was not alerted to the contents of the first note or the judge’s intended response and was not given a chance to suggest a response before the jury was called in. a violation of CPL (Criminal Procedure Law 310.30):

A court’s ” core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'” … . “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . preservation is not required” … . Furthermore, “we cannot assume that [such an] omission was remedied at an off-the-record conference that the transcript does not refer to” … .

Here, the jury note requested a readback of the defense witnesses’ alibi testimony. This note was read for the first time on the record before all parties and the jury. Immediately thereafter, the trial court read a second note from the jury advising that a verdict had been reached, at which point the verdict was pronounced. The trial court failed to meet its “core responsibilities” …, since defense counsel was not alerted on the record to the contents of the note and to the court’s intended response, or nonresponse, prior to calling back the jury (see id.). “[A]lthough a defense counsel who is given notice of the trial court’s intended response might be expected to object at a time when counsel had an opportunity to ask [the court] to alter course’ … counsel here had no such opportunity because he learned of the trial court’s response at the same time the jury heard it” … . The defendant was thus deprived of any opportunity to voice opposition to the trial court’s decision to pass over the first note and proceed directly to the verdict without further inquiry. People v Wiggs, 2015 NY Slip Op 05707, 2nd Dept 7-1-15