THE JUDGE RESPONDED TO A NOTE FROM ONE OF THE JURORS WHO EXPRESSED FRUSTRATION WITH ANOTHER JUROR; THE JUDGE SPOKE TO HER ALONE AND APPARENTLY REVIEWED THE INSTRUCTIONS HE HAD GIVEN THE JURY ABOUT MEANINGFUL AND GOOD FAITH DELIBERATIONS; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing the judgment of conviction and ordering a new trial, on writ of error coram nobis alleging ineffective appellate counsel, determined the trial judge committed a mode of proceedings error by instructing a single juror in the absence of the remaining jurors:​

On the fifth day of deliberations, the trial judge placed on the record that he had received a note from one of the jurors asking to speak with him and that, “with the consent of the attorneys,” he engaged in an off-the-record discussion with the juror in his chambers. Although the discussion was not transcribed, the trial judge explained that the juror had vented her frustration about the manner in which another juror was deliberating with her, revealing that “she was taking her role as a juror seriously” and that she was “being confronted” by another juror “when she voiced an opinion on issues” and “ask[ed] specific questions.” In response, the trial judge informed the juror that she “ha[d] a right to ask questions, and [the other jurors] ha[d] an obligation to deliberate with her and to respond to her in a civil manner.” The trial judge further revealed that, during the discussion with this juror, he “substantially reviewed with her the instructions that [he had given] to all the jurors regarding the requirement of meaningful and in-good-faith deliberations.” After the trial judge placed such exchange on the record, defendant’s counsel revealed that he was contemplating requesting that the court charge the entire jury on civility. However, he ultimately declined to do so.

… [W]e disagree with the People’s assertion that County Court’s off-the-record discussion with the juror was ministerial in nature. Although the juror’s note was ambiguous and the discussion in chambers was not transcribed — making it impossible to know the precise nature of the conversation — County Court revealed that it had “substantially reviewed” with the juror the instructions it had previously provided to the entire jury panel regarding meaningful and good faith deliberations. As noted by the Court of Appeals, ” ‘there are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for clarification of the law or further guidance on the process of deliberations'” … . Under the circumstances presented, we conclude that the court’s conversation with the juror — which included providing a substantive instruction on the jurors’ obligations during the deliberative process — was not ministerial in nature, violated defendant’s right to be present at all material stages of the trial and constituted a mode of proceedings error … . People v Anderson, 2026 NY Slip Op 06169, Third Dept 1-22-26

Practice Point: Here the judge’s meeting with a juror alone and reviewing some of the jury instructions outside the presence of the other jurors was deemed a mode of proceedings error requiring reversal.​