THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the jury notes should have been read verbatim to counsel, not paraphrased:
.. [T]he jury submitted a note stating, “We would like to see the difference between first and second degree murder. (Powerpoint).” The Supreme Court informed counsel, the defendant, and the codefendant that the jurors “want to be recharged on first degree and second degree.” …
The jury submitted another note which read, “Phone Records Between Jimmy & Ragene — When Did Communication Start?” During a discussion on the record, the Supreme Court mentioned that the jurors “want to know when did the communications start. And the communications started on June 11. And the stipulation covers it. So we’ll read back the stipulation.”
The record reveals that the Supreme Court did not read the entire contents of these two jury notes into the record, and there was no indication that the entire contents of the notes otherwise were shared with counsel … . Rather, the court improperly paraphrased the notes … .
Counsel’s awareness of the existence of a note does not effectuate the court’s proper discharge of its statutory duty … . Although defense counsel may have been made aware of the existence and gist of the second note during an off-the-record discussion, this is insufficient to establish that counsel had been made aware of the precise contents of the note … . Where a trial transcript does not show compliance with O’Rama’s procedure, it cannot be assumed that the omission was remedied at an off-the-record conference to which the transcript does not refer … .
As such, the Supreme Court committed a mode of proceedings error when it failed to provide counsel with meaningful notice of the precise contents of substantive juror inquiries, and therefore, reversal is required … . People v Copeland, 2019 NY Slip Op 06507, Second Dept 9-11-19