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FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE’S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Fahey, over a dissenting opinion, determined the trial judge's acceptance of the verdict without answering three jury notes was not a mode of proceedings error. Because there was no objection to the failure to answer the jury notes, the error was not preserved. The notes had been marked as court exhibits, had been read verbatim to counsel and counsel were aware of the court's proposed responses. The note indicating a verdict had been reached was sent out before the court was able to answer:

Criminal Procedure Law § 310.30 imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury … . A trial court's failure to fulfill its first responsibility — meaningful notice to counsel — falls within the narrow class of mode of proceedings errors for which preservation is not required … . On this appeal, we consider whether the preservation rule applies when counsel unquestionably had meaningful notice of the jury's substantive inquiries, but the trial court did not respond to those inquiries before accepting the verdict. We hold that where counsel has meaningful notice of the content of a jury note and of the trial court's response, or lack thereof, to that note, the court's alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review. People v Mack, 2016 NY Slip Op 04321, CtApp 6-7-16

CRIMINAL LAW (FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/APPEALS (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/MODE OF PROCEEDINGS ERROR (FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/JURY NOTES (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/PRESERVATION OF ERROR (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)

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