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MODE OF PROCEEDINGS ERROR TO PARAPHRASE SUBSTANTIVE JURY NOTE.

The First Department determined the trial judge’s paraphrasing a substantive jury note, rather than reading it into the record verbatim, was a mode of proceedings error requiring reversal:

By only paraphrasing some of the content of the third note, and failing to read the precise content of the that note into the record verbatim at any time, the court violated the procedures set forth in People v O’Rama (78 NY2d 270, 277-278 [1991]), more recently reiterated in People v Nealon ( __ NY3d __ , 2015 NY Slip Op 07781 [2015]) … ). A court does not satisfy its responsibility to provide counsel with meaningful notice of a jury’s substantive inquiry by summarizing the substance of the jurors’ note … . The … note, which was a substantive jury inquiry, should not have been paraphrased, but read in its entirety so that counsel had meaningful notice of its contents and, therefore, an opportunity to formulate a proposed response. Although counsel did not object to how the court handled the … note, the court’s failure to read this substantive note into the record verbatim, is a “mode of proceedings error,” and given this departure, counsel was not required to object to it in order to preserve any claim of error for appellate review … . People v Lane, 2015 NY Slip Op 08771, 1st Dept 12-1-15

CRIMINAL LAW (JURY NOTES, PARAPHRASING  JURY NOTE WAS A MODE OF PROCEEDINGS ERROR)/JURY NOTES (PARAPHRASING NOTE WAS A MODE OF PROCEEDINGS ERROR)/MODE OF PROCEEDINGS ERROR (PARAPHRASING JURY NOTE)

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O’RAMA-PROCEDURE ERRORS WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT... CONVICTION IN VIOLATION OF CATU CAN NOT BE USED AS PREDICATE FOR SENTENCING