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FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department, in a case remitted after reversal by the Court of Appeals, determined the trial judge’s failure to respond to the deliberating jury’s request for a witness’s (Richard’s) testimony by reading both the direct and the cross deprived defendant of a fair trial. The Second Department had previously found the error to be a mode of proceedings error that required reversal in the absence of an objection. The Court of Appeals held the error was not a mode of proceedings error. On remand the Second Department addressed the unpreserved error in the interest of justice:

Although the defendant’s contentions regarding the jury note are unpreserved for appellate review, as no objections were raised (see CPL 470.05[2]), we reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). Under the circumstances of this case, the trial court’s failure to meaningfully respond to the jury note requesting a readback of Richards’ testimony deprived the defendant of a fair trial … . ” [A] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise'” ,,, . Richards was the only witness to the argument and the shooting, other than the complainant and the defendant. Richards’ cross-examination testimony included testimony that was relevant to the defense, directly impeached significant portions of his direct examination testimony, and was detrimental to the prosecution. As a result, the trial court’s readback of only Richards’ direct examination testimony in response to the jury’s request seriously prejudiced the defendant … . People v Morris, 2017 NY Slip Op 01007, 2nd Dept 2-8-17

CRIMINAL LAW (FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/JURY NOTES (CRMINAL LAW, FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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