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NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION.

The First Department, in a full-fledged opinion by Justice Kapnick, reversed defendant’s conviction because there was no record that the trial judge read the notes from the jury to the parties verbatim prior to discussing the appropriate responses:

“Where a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to” … . Here, the court’s response to the jury regarding the fourth note does include a limited reference to how the “parties” wished to respond to the jury’s request, suggesting that an off-the-record conference may have occurred with respect to the fourth note. Even assuming, without deciding, that this reference would suffice to remedy the O’Rama violation with respect to the fourth note, there is no such reference to the parties’ agreement in the trial court’s response to the jury regarding the fifth note. Therefore, the court’s handling of the fifth note constitutes a clear departure from the O’Rama procedure and a mode of proceedings error for which preservation is not required … . People v Robinson, 2016 NY Slip Op 06266, 1st Dept 9-29-16

CRIMINAL LAW (JURY NOTES, NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION)/JURY NOTES (CRIMINAL LAW, NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION)/MODE OF PROCEEDINGS ERROR (JURY NOTES, NO RECORD DEMONSTRATING THE TRIAL JUDGE READ THE NOTES FROM THE JURY TO THE PARTIES VERBATIM PRIOR TO DISCUSSING RESPONSES; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL DESPITE LACK OF PRESERVATION)

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