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NO RECORD OF JUDGE’S DISCUSSION OF A JURY NOTE WITH COUNSEL, MURDER CONVICTION REVERSED; DEFENDANT AUTHORIZED HIS AGENT TO SHOW HIS LETTER TO HIS ATTORNEY TO A THIRD PARTY, NO ATTORNEY-CLIENT PRIVILEGE; SENTENCES CANNOT BE CONSECUTIVE FOR CRIMES WITH THE SAME ACTUS REUS (THIRD DEPT).

The Third Department determined (1) because there was no record of the judge’s discussion of a jury note with counsel, the murder conviction (the only count to which the jury note was relevant) must be reversed. (2) although defendant’s girlfriend was defendant’s agent for the purpose of delivering defendant’s letter, which was mailed to her, to his attorney, there was evidence defendant authorized his girlfriend’s mother to read the letter. therefore the attorney-client privilege was lost, (3) the unauthorized use of a vehicle charge has the same actus reus as the robbery and grand larceny charges, therefore the sentence for unauthorized use of a vehicle cannot run consecutively with the sentences for robbery and grand larceny, but it can run consecutively to the sentences for the burglary and criminal possession of stolen property charges:

A divided Court of Appeals has held that meaningful notice is not provided where there is no record indicating that counsel was informed of the “precise contents” of the note before the response is given to the jury, or where the trial court paraphrases or summarizes a jury note …. Given the court’s statement to the jury that it had an off-the-record conversation with counsel regarding the note, it would not be unreasonable to believe that County Court had informed counsel of the note’s precise contents. However, the record contains no specific indication that the court provided counsel with the precise content of the note before it delivered its response to the jury, nor was the note read verbatim on the record before the response was given. Thus, the record fails to establish that counsel had the opportunity to participate in the formation of the court’s response to the jury’s substantive inquiry.  * * *

In these circumstances, we conclude that [defendant’s girlfriend]  was acting as defendant’s agent. Thus, whether the letter was protected by the attorney-client privilege turns on whether defendant had a reasonable expectation of confidentiality when he sent it to [her]. In that regard, there was contradictory evidence regarding whether defendant authorized [her] to share a copy of the letter with her mother, which County Court resolved by determining that defendant had authorized disclosure to [her] mother … . The determination that defendant specifically authorized disclosure of the letter to a third party, i.e., [his girlfriend’s] mother, established that defendant had no reasonable expectation of confidentiality and, therefore, defeated the attorney-client privilege. Thus, County Court did not err in admitting the letter. People v Henry, 2019 NY Slip Op 05024, Third Dept 6-20-19

 

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