RECORD DOES NOT DEMONSTRATE DEFENSE COUNSEL WAS MADE AWARE OF A JUROR’S COMPLAINTS ABOUT THE DELIBERATIONS AND THE CONTENTS OF A NOTE FROM THE JURY; THE FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED; DNA TESTING OF GUM DISCARDED BY THE DEFENDANT WHILE IN CUSTODY WAS PROPER (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the for cause challenges to two jurors should have been granted and the record does not indicate defense counsel was made aware of a juror’s complaint to the judge about the deliberations and the contents of a note from the jury. The decision dealt with several suppression issues, including the finding that DNA testing of a piece of gum discarded by the defendant when he was in custody was proper:

At the commencement of the second day of deliberations, the court met with counsel and deliberating juror C.H., who had left the court a telephone message expressing concerns about deliberations. This conversation took place outside the defendant’s presence. Although the court properly attempted to keep its communication with C.H. ministerial by simply directing her to put her concerns in writing, C.H. refused to accept the court’s directions, expressing concerns about the course of deliberations, including a concern that someone was “stirring the jury” and that other jurors had been “influenced.” The court eventually directed a court officer to return C.H. to the jury room and provide her with writing materials. * * *

After the colloquy with C.H. and following an off-the-record discussion, the defendant was returned to the courtroom, and the court stated that it had received a note from the jury which had been marked as Court Exhibit X and “sealed with the consent of all parties.” No further discussion of Court Exhibit X appears on the record. * * *

We cannot assume, from the County Court’s statement that the parties agreed to seal the note, that counsel was made aware of the exact contents of the note since “an insufficient record cannot be overcome with speculation about what might have occurred. The presumption of regularity cannot salvage an O’Rama error of this nature” … . Moreover, since the failure to disclose a jury note to counsel is a mode of proceedings error, it cannot be overlooked as harmless even where the evidence is otherwise overwhelming … . People v Kluge, 2020 NY Slip Op 00878, Second Dept 2-5-20