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THE JURY NOTE INDICATED THE REQUEST WAS FOR THE TRANSCRIPT OF THE PHONE CALL, BUT THE JUDGE DESCRIBED THE NOTE AS A REQUEST FOR THE PHONE CALL AND PROVIDED THE JURY WITH THE RECORDING OF THE CALL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined that the judge did not inform counsel of the full nature of a note from the jury. The jury note indicated the request was for the transcript of a phone call, but the judge said the note was asking for the phone call:

At trial, a recording of one of the defendant’s jail phone calls was introduced into evidence and played for the jury. In addition, the jury was provided with a purported transcript of the call, which was described merely as an aid and was not itself in evidence, and which the Supreme Court instructed should not control in the event of any discrepancy between the recording and the transcript. During deliberations, the jury sent the court a note, marked as court exhibit number 4, which the court stated on the record as “asking for [the defendant’s] phone call from jail.” This description, however, omitted the word “transcript,” which was included at the end of the note in parentheses. The court then stated to the jury that it would play the call again, but would not provide a copy of the transcript.

Contrary to the People’s contention, the jury’s request did not only implicate the court’s ministerial function, as the request can be interpreted as seeking the transcript of the phone call, rather than the call itself. Notably, there was a discrepancy between the transcript and the phone call, and to the extent that the jury’s request implied that the transcript left an impression on the jury, despite the court’s instructions … ,counsel for the defendant should have been made aware of the verbatim contents of the request … . Failure to disclose the precise contents of the note deprived the defense of the opportunity to “analyze the jury’s deliberations” given the note’s ambiguous meaning, “and frame intelligent suggestions for the court’s response” … . People v Dennis, 2021 NY Slip Op 01994, Second Dept 3-31-21

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT PROCURED THE ABSENCE OF A WITNESS;... BASED UPON THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM,...