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WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions and ordering a new trial, determined the judge did not follow proper procedure re: notes received from the jury during deliberations:

The court did not follow the procedures set forth in People v O’Rama (78 NY2d 270[1991]) with regard to several jury notes. The record does not reflect that the court read or showed four of the jury’s notes to the parties or afforded them an opportunity to provide input regarding the proper response to the notes. Indeed, the record contains no indication that these four notes, each of which sought trial exhibits, were responded to at all. While “[n]otes that only require the ministerial act of sending exhibits into the jury room do not implicate the requirements of O’Rama” and CPL 310.30 … , notes that do not unambiguously describe the requested exhibits warrant input from counsel and are subject to O’Rama’s requirement of meaningful notice. Here, at least two of the notes that the court did not address fall into this latter category. Because of this mode of proceedings error, a new trial is called for. People v Baptiste, 2023 NY Slip Op 02835, First Dept 5-25-23

Practice Point: Although the judge need not share with the parties a note from the jury which requires only a ministerial act, the judge must share a note which is ambiguous about which exhibits are requested. The failure to share the note requires reversal and a new trial.

 

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