COURT’S ERRORS IN DEALING WITH NOTES FROM THE JURY, INCLUDING SUBSTITUTING THE WORD ‘INITIALLY’ FOR ‘INTENTIONALLY,’ REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court’s handling of jury notes constituted reversible error:

… [I]n a note marked as court exhibit 8, the jury posited a question about the elements of resisting arrest. When reading that note into the record, the Supreme Court substituted the word “initially” in place of the word “intentionally,” forming a substantively different question than that posed by the jury. The court again substituted the word “initially” in place of the word “intentionally” when it read the note aloud later in the proceedings. Since there is no indication in the record that court exhibit 8 was shown to the parties, the court’s erroneous use of a substantively different word than that used by the jury when it read the note into the record, and its repetition of that same error later in the proceedings, constituted mode of proceedings errors. In addition, although the jury submitted to the court a note marked as court exhibit 10 to clarify which portions of the testimony of certain witnesses the jury wished to have read back, the court did not read court exhibit 10 into the record at any point, and the record does not show that the court ever informed the parties that this note had been received. As a result of the errors regarding these jury notes, we must reverse the defendant’s conviction of resisting arrest … . People v Petrizzo, 2020 NY Slip Op 03251, Second Dept 6-10-20