In a case reversed by the Court of Appeals and remitted, the Fourth Department, over a two-justice dissent, refused to exercise its interest of justice jurisdiction to address an unpreserved “jury note” error. The jury sent out two notes which the trial judge read into the record. But before the judge responded to the notes, the jury rendered a verdict. Defense counsel did not object to the failure to address the notes. The Fourth Department had reversed, finding the failure to respond to the notes a mode of proceedings error (not requiring preservation). The Court of Appeals reversed the Fourth Department, finding the error needed to be preserved:
… [T]he only remaining issue to be decided is whether we should exercise our power to review defendant’s unpreserved contention regarding the unanswered jury notes as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We decline to do so. As the Court of Appeals noted, defense counsel “may have made a strategic choice not to challenge the trial court’s procedure,” and “may have decided that the jurors were more likely to acquit defendant if they were not given the chance to deliberate further” … . Such a strategic decision, if made, would have been entirely reasonable considering that the jury had asked for, among other things, a readback of testimony from the key prosecution witness.
Because defense counsel may have had a legitimate, strategic reason for not objecting to the court’s procedure, we respectfully disagree with the dissent that defendant was “seriously prejudiced” by the court’s taking of the verdict. People v Mack, 2016 NY Slip Op 05825, 4th Dept 8-17-16
CRIMINAL LAW (JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL)/ATTORNEYS (JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, ATTORNEY MAY HAVE HAD STRATEGIC REASON FOR NOT OBJECTING, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL)/JURY NOTES (CRIMINAL LAW, JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL)