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COURT’S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.

The Court of Appeals, reversing the Appellate Division, determined (1) the trial court properly notified all parties of the contents of a jury note, and (2), the response to the jury note, in which only the direct testimony of a witness was read back, was not a mode of proceedings error. Therefore the failure to read the cross-examination was an error which must be preserved for appellate review (no preservation here):

Counsel had meaningful notice of the precise content of the jury's note and was in the courtroom as the readback was conducted. Counsel was therefore aware that the court had failed to read the witness's cross-examination testimony. Counsel's knowledge of the precise content of the note and of the court's actual response, or lack thereof, removes the claimed error from the very narrow class of mode of proceedings errors for which preservation is not required … . “[C]ounsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here” … . People v Morris, 2016 NY Slip Op 04327, CtApp 6-7-16

CRIMINAL LAW (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/APPEALS (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/MODE OF PROCEEDINGS ERROR  (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/PRESERVATION OF ERROR (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)

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