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COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly granted, noting that commencing a lawsuit, standing alone, does not constitute abuse of process:

” Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective'” … . The mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging abuse of process … . “[T]here must be an unlawful interference with one’s person or property under color of process in order that action for abuse of process may lie” … . Lynn v McCormick, 2017 NY Slip Op 06169, Second Dept 8-16-17

INTENTIONAL TORTS (ABUSE OF PROCESS, COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT))/ABUSE OF PROCESS (COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT))

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LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (OneWest’s) motion to vacate a default judgment dismissing the complaint should not have been granted. One West’s attorney did not show up for a scheduled settlement conference:

OneWest moved pursuant to CPLR 5015(a)(1) to vacate the order entered upon its default in appearing at the conferences and to restore the action to the active calendar. In support of its motion, OneWest alleged that it was unaware of the scheduled conferences “due to law office confusion” following the substitution of counsel. The Supreme Court granted the motion. [Defendant] appeals.

A plaintiff seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action… . Although “[a] motion to vacate a default is addressed to the sound discretion of the motion court” … , the defaulting party must submit evidence in admissible form establishing both a reasonable excuse and a potentially meritorious cause of action or defense … .

A court has the discretion to accept law office failure as a reasonable excuse for a party’s default … . However, “it was not the Legislature’s intent to routinely excuse such defaults” … , and mere neglect is not a reasonable excuse… .

Contrary to OneWest’s contention, it failed to provide a detailed and credible explanation of the default… . Rather, counsel’s affirmation in support of the motion contained only the conclusory and undetailed allegation of “law office confusion” after being substituted as counsel for OneWest, which does not constitute a reasonable excuse… . No other evidence was submitted to corroborate the allegation. OneWest, therefore, failed to demonstrate a reasonable excuse for its default … . OneWest Bank, FSB v Singer, 2017 NY Slip Op 06184, Second Dept 8-16-17

 

FORECLOSURE (LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, SETTLEMENT CONFERENCE, LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))/ATTORNEYS (FORECLOSURE, LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))/SETTLEMENT CONFERENCE LAW OFFICE CONFUSION NOT A SUFFICIENT EXCUSE FOR BANK ATTORNEY’S FAILURE TO ATTEND A SETTLEMENT CONFERENCE, DEFAULT JUDGMENT DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN VACATED (SECOND DEPT))(FORECLOSURE)

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RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT).

The Second Department, in a full-fledged per curiam opinion, determined that a change in circumstances warranted a modification of the stipulation of settlement of a divorce action. The opinion is too detailed to fairly summarize here. At issue was the extent of the religion-related requirements of the stipulation of settlement. Father objected to the lifestyle changes associated with mother’s open acknowledgment that she is gay and the presence of O, a transgender man, in the home. The court held that the religion-based restrictions placed upon mother’s lifestyle, stemming from Supreme Court’s finding that the religious aspects of the stipulation were paramount, violated her constitutional rights. Rather than the religious concerns, the analysis must focus on the best interests of the children. To that end, the Second Department determined certain aspects of the stipulation concerning the father’s desire to raise and educate the children in the Hasidic tradition were in the children’s best interests:

… [T]he Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. Although the court accepted the father’s argument that the religious upbringing clause “forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools,” the plain language of the parties’ agreement was “to give the children a Hasidic upbringing” … . The parties’ agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle … . * * *

Contrary to the mother’s contention, the weight of the evidence demonstrates that it is in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. Weisberger v Weisberger, 2017 NY Slip Op 06212, Second Dept 8-16-17

FAMILY LAW (RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CUSTODY (FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, CONSTITUTIONAL LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))

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LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT).

The Second Department determined a law student’s petition to contest failing grades issued after the student missed exams was properly dismissed. The student had not complied with the school’s rules with respect to missing exams because of illness:

Unlike disciplinary measures taken against a student, institutional assessments of a student’s academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators… . Thus, to preserve the integrity of the credentials conferred by educational institutions, courts have long been reluctant to intervene in controversies involving purely academic determinations … . Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to constitution or statute … .

Here, the petitioner did not submit any evidence establishing that he complied with BLS’s policy for missing an exam due to illness. Pursuant to BLS’s [Brooklyn Law School’s] policy, since the petitioner failed to take two final exams, failed to promptly notify the Registrar that he was unable to take those exams due to illness, and failed to submit medical documentation of his illness necessary to schedule make-up exams, he received a failing grade in each course. BLS’s determination to let the petitioner’s failing grades stand and to refuse to allow him to withdraw from those courses so as to avoid the failing grades was not arbitrary and capricious, irrational, made in bad faith, or contrary to constitution or statute … . Matter of Daniel v Brooklyn Law Sch., 2017 NY Slip Op 06181, Second Dept 8-16-17

 

EDUCATION-SCHOOL LAW (LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))/LAW SCHOOL (LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))/GRADES (LAW SCHOOL, LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))/COLLEGES AND UNIVERSITIES (LAW STUDENT FAILED TO COMPLY WITH SCHOOL RULES FOR MISSING EXAMS DUE TO ILLNESS, FAILING GRADES ALLOWED TO STAND (SECOND DEPT))

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COMMON-INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR FACTUAL EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT).

The Second Department determined that, although the common interest privilege applied to the allegedly defamatory statements, the allegations of malice were sufficient to overcome the privilege in the context of a motion to dismiss. The court noted that no evidence of malice need be presented at the motion-to-dismiss stage:

“To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se”…. . “A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege”… . However, this “common-interest privilege” may be overcome by a showing of malice … . “To establish the malice’ necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will,’ or may show actual malice,’ i.e., knowledge of falsehood of the statement or reckless disregard for the truth” … .

Here, * * * the common-interest privilege applies to the allegedly defamatory communications… . However, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference …, the amended complaint sufficiently alleges malice to overcome the privilege… . “[A] plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7) … . Ferrara v Bank, 2017 NY Slip Op 06161, Second Dept 8-16-17

 

DEFAMATION (COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/EVIDENCE (DEFAMATION, MALICE, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/MALICE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))

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PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof did not support assessing 15 points for excessive drug and alcohol use. Defendant’s risk level was reduced from three to two. Although the error was not preserved, the court reviewed it in the interest of justice:

“In order to demonstrate that an offender was abusing [drugs or] alcohol at the time of the offense,’ the People must show by clear and convincing evidence that the offender used [drugs or] alcohol in excess either at the time of the crime or repeatedly in the past” … . Here, although the People offered evidence that the defendant used drugs after the time of the offense, the People failed to prove by clear and convincing evidence that the defendant used alcohol or drugs in excess either at the time of the offense or repeatedly in the past … . Accordingly, the Supreme Court should not have assessed the defendant 15 points under risk factor 11. People v Madison, 2017 NY Slip Op 06200, Second Dept 8-16-17

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SORA (SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, SEX OFFENDER REGISTRATION ACT, PROOF DID NOT JUSTIFY ASSESSMENT FOR DRUG AND ALCOHOL USE, RISK LEVEL REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT))

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THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an upward departure from the presumptive risk level based upon a theft:

The defendant’s commission of a theft while the underlying criminal prosecution was pending was a factor not taken into account in the Guidelines … . Moreover, the People proved by clear and convincing evidence that the defendant committed that theft. Nevertheless, the Supreme Court improvidently exercised its discretion in upwardly departing from the presumptive risk level on that basis. That theft, an opportunistic nonviolent theft committed while the defendant was house-sitting for a friend, did not indicate that the presumptive risk level would result in an underassessment of the risk of sexual reoffense … .

In sum, the defendant was properly assessed 75 points … , within the range for a presumptive designation as a level two offender. However, the Supreme Court improvidently exercised its discretion in upwardly departing from the presumptive risk level. Accordingly, we reverse the order appealed from and designate the defendant a level two sex offender. People v Garcia, 2017 NY Slip Op 06199, Second Dept 8-16-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT))/SORA (THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT))

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FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT).

The Second Department determined handguns found inside the console of an SUV were properly suppressed. The police stopped the SUV based upon a report of a shooting involving a similar vehicle. After the defendants were handcuffed and removed from the SUV, but before the eyewitnesses to shooting arrived, the police opened the center console and found a firearm. The eyewitnesses subsequently told the police the defendants were not involved in the shooting:

On January 14, 2015, just before 9:30 p.m., two police officers responded to a report of a shooting involving a white Infiniti SUV with several occupants, including one female. Approximately 15 minutes later and eight or nine blocks away from the location of the reported shooting, the officers observed an SUV matching that description parked in a strip mall parking lot, and a woman standing next to it. As the officers approached in their vehicle, the woman walked away, and the driver of the SUV began to drive away. The officers pulled the SUV over, exited their vehicle, and approached the SUV on foot, one officer on each side of it. The officers observed that the two male occupants, the defendants herein, were leaning toward each other, and each had an elbow on the SUV’s center console. The officers did not observe any contraband or firearms inside the SUV. The driver complied with the officers’ request to provide his license and registration, following which the defendants were removed from the SUV, frisked, handcuffed, and seated on a nearby curb to wait for eyewitnesses to the shooting to arrive. Additional officers arrived, one of whom approached the SUV and, noticing that the center console was slightly elevated, opened it and found a handgun. The defendants were then arrested. The eyewitnesses subsequently arrived and confirmed that the defendants were not the persons who had committed the shooting. A second handgun was later found in the center console.

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … .

Under the circumstances here, where the defendants had been removed from the SUV, the police lacked probable cause for a warrantless search of its center console, and the weapons found as a result were properly suppressed … . People v Morris, 2017 NY Slip Op 06194, Second Dept 8-16-17

 

CRIMINAL LAW (SUPPRESSION, FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW,  FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, SUPPRESSION, FIREARMS FOUND IN THE PARTIALLY CLOSED CENTER CONSOLE OF A VEHICLE PROPERLY SUPPRESSED, DEFENDANTS WERE OUT OF THE VEHICLE AND HANDCUFFED WHEN THE CONSOLE WAS SEARCHED (SECOND DEPT))

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DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s statement providing the searching parole officers with the combination to a safe and the guns found in the safe should have been suppressed. The search of defendant’s girlfriend’s apartment was conducted after defendant, who was present in the apartment, violated parole. Defendant was handcuffed and in his underwear when the officer asked for the combination. The officers had already found other weapons and counterfeit DVD’s in the apartment. The People unsuccessfully argued the request for the combination was not designed to elicit an incriminating response:

The question—which arose after the parole officers had found counterfeit DVDs, a box filled with daggers, and a .22 caliber revolver—had only one logical purpose: to elicit a response from the defendant disclosing the combination to the safe, which would possibly lead to the discovery of incriminating evidence, and which would link the safe to the defendant … . Therefore, the Supreme Court should have granted that branch of the defendant’s motion which was to suppress his statement to law enforcement officials as to the combination to the safe, and should have suppressed the two handguns recovered from the safe, as well as a handwritten statement the defendant later made to the police about the handguns, as fruits of the poisonous tree … . Without this evidence, there could not be legally sufficient evidence to support convictions of criminal possession of a weapon in the third degree based on those two handguns, or based on the defendant’s possession of three or more firearms. Accordingly, the convictions of those three offenses must be vacated, and those three counts of the indictment must be dismissed. People v Blacks, 2017 NY Slip Op 06186, Second Dept 8-16-17

CRIMINAL LAW (SUPPRESSION, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE ( DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT).

The Second Department reversed defendant’s conviction because the trial judge did not follow the O”Rama procedure when addressing two notes sent out by the jury. Although the error was not preserved by objection, it was deemed a mode of proceedings error. The notes asked for a readback of testimony and instructions on the charged offense. Although the judge complied with the requests, the jury notes were not marked as exhibits, were not read to counsel, and counsel were not given an opportunity to respond to the notes outside the presence of the jury:

In People v O’Rama, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30. “The Court of Appeals held that whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel'” … . ” After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Once the jury is returned to the courtroom, the communication should be read in open court'”… . Where a trial court fails to provide counsel “with meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection” … .

Here, although the defendant failed to object to the manner in which the Supreme Court handled the two notes, under the circumstances of this case, the court violated O’Rama and committed a mode of proceedings error, obviating the need for preservation, by failing to provide the defendant with notice of the “precise contents” of the notes prior to giving its responses … . People v Webster, 2017 NY Slip Op 06198, Second Dept 8-16-17

 

CRIMINAL LAW (FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/JURY NOTES  (CRIMINAL LAW, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/MODE OF PROCEEDINGS ERROR (CRIMINAL LAW, APPEALS, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))/O’RAMA PROCEDURE (CRIMINAL LAW, JURY NOTES, FAILURE TO FOLLOW O’RAMA PROCEDURE FOR JURY NOTES REQUIRED REVERSAL, MODE OF PROCEEDINGS ERROR DID NOT REQUIRE PRESERVATION (SECOND DEPT))  

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