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TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the defendant’s conviction finding that evidence of a prior similar stabbing of the same victim was too prejudicial to be admissible. The evidence of defendant’s connection to the prior stabbing was weak. The victim refused to cooperate with the investigations into both stabbings. Therefore the trial court should not have ruled the defendant could be cross-examined about the prior stabbing if he chose to testify (he did not testify):

Although questioning concerning other crimes and past conduct is not automatically precluded simply because the crime or conduct inquired about is similar to the crime charged … , “cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” … . Thus, “a balance must be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf” … . Under the circumstances presented here, most notably the unsubstantiated evidence connecting the defendant to the uncharged crime involving the identical victim, which occurred three months earlier, the probative value was far outweighed by the danger of undue prejudice. There was a strong likelihood that the uncharged crime would be viewed as evidence of propensity, rather than probative on the issue of credibility … . People v Ridenhour, 2017 NY Slip Op 06383, Second Dept 8-30-17

CRIMINAL LAW (SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW,  TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))

PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People did not demonstrate, at a Sirois hearing, that a witness’s refusal to testify was the result of defendant’s threats. The trial court had ruled the witness’s grand jury testimony could be read to the jury. The Second Department also held the court should have inquired into the defense attorney’s request to be relieved because the defendant had filed a grievance against him:

At the Sirois hearing, the People were required to “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused a witness’s unavailability” … . Here, although the People presented evidence that the witness was afraid to testify, they failed to meet their heavy burden of showing that her fear was caused by a threat made by the defendant … .

Under the circumstances of this case, this error cannot be considered harmless … . Thus, the judgment must be reversed, and the matter remitted to the Supreme Court, Kings County, for a new trial … .

The Supreme Court also should not have denied defense counsel’s request to be relieved without first having made at least some minimal inquiry in light of defense counsel’s statement that the defendant had filed a grievance against him … . People v Middleton, 2017 NY Slip Op 06378, Second Dept 8-30-17

 

CRIMINAL LAW (PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))/SIROIS HEARING (CRIMINAL LAW, PEOPLE WERE UNABLE TO DEMONSTRATE WITNESS’S REFUSAL TO TESTIFY WAS THE RESULT OF DEFENDANT’S THREATS, NEW TRIAL ORDERED, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S REQUEST TO BE RELIEVED REQUIRED FURTHER INQUIRY BY THE COURT (SECOND DEPT))

CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT).

The Second Department reversed defendant’s conviction because instructions to the jury and the verdict sheet created confusion about the effect of finding the defendant not guilty of the most serious offense based on the justification defense. The instructions gave the impression the jurors could continue to consider a lesser offense after finding the justification defense required a not guilty verdict on more serious offense:

“This Court has held that, in a case involving a claim of self-defense, it is error for the trial court not to instruct the jurors that, if they find the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts” … . Such failure constitutes reversible error … . “Our precedent in this regard is sound and ineluctable. The defense of justification does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful'” … .

… [W]hen instructing the jury on the verdict sheet, the court did not instruct that, if the jury found the defendant not guilty of a greater charge on the basis of justification, it was not to consider any lesser count, and the verdict sheet was inconsistent with that principle … . In particular, the verdict sheet, which made no reference to justification, instructed the jury that, if it found the defendant not guilty on count one or count two, the jury must “deliberate next on” the following count. Similarly, in explaining the verdict sheet, the court instructed the jury, if the verdict on count one or count two was not guilty, to “go on” and to “deliberate” on the next count, without explaining that they should not deliberate on any lesser-included count if the jury found the defendant not guilty based upon the People’s failure to disprove the defense of justification. People v Braithwaite, 2017 NY Slip Op 06369, Second Dept 8-30-17

 

CRIMINAL LAW (CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, CONFUSION ABOUT THE EFFECT OF FINDING THE DEFENDANT NOT GUILTY BY VIRTUE OF THE JUSTIFICATION DEFENSE REQUIRED A NEW TRIAL, IF THE JUSTIFICATION DEFENSE APPLIES TO A HIGHER COUNT THERE CAN BE NO FURTHER CONSIDERATION OF ANY LESSER COUNT (SECOND DEPT))

PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the prosecutor’s reasons for striking two black prospective jurors were pretextual:

… [T]he record demonstrates that the race-neutral reasons for challenging prospective jurors Nos. 2 and 8 were not applied equally to exclude other prospective jurors who were not black, even though those other jurors had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered. Although the uneven application of race-neutral factors does not always indicate pretext where the prosecution can articulate other legitimate reasons to justify the uneven use of its challenges… , the prosecution here failed to do so. Under the circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging prospective jurors Nos. 2 and 8 were pretextual … . Accordingly, the defendant is entitled to a new trial …. . People v Brown, 2017 NY Slip Op 06289, Second Dept 8-23-17

CRIMINAL LAW (JURORS, BATSON CHALLENGE, PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/JURORS (CRIMINAL LAW, BATSON CHALLENGE, PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))/BATSON CHALLENGE (PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT))

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RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, over a two-justice dissent, determined that the record of a retention hearing for an insanity acquittee need not be sealed:

Mental Hygiene Law § 33.13 does not, as respondent contends, require that the record of his retention proceeding be sealed. …

Respondent accepted a plea of not responsible by reason of mental disease or defect and, therefore, “avoid[ed] criminal penalties and . . . [became] subject to the CPL 330.20 scheme” … . As the Court of Appeals has consistently recognized, “[t]his places insanity acquittees in a significantly different posture than involuntarily committed civil patients” and, thus, justifies “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law” … . The distinction between an insanity acquittee, as we have here, and an involuntarily committed civil patient is apparent by the Legislature’s enactment of a separate statutory scheme — CPL 330.20 — to address the commitment and retention procedures for persons found not responsible for their crimes by reason of mental disease or defect. The detailed statutory framework of CPL 330.20 does not include a provision that requires, or even contemplates, the sealing of these commitment and retention proceedings. Nor does the relevant legislative history indicate that the Legislature intended for these proceedings — which arise only after a criminal defendant affirmatively places his or her mental competency in issue — to be sealed from the public … . Matter of James Q., 2017 NY Slip Op 06222, 3rd Dept 8-17-17

 

MENTAL HYGIENE LAW (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/CRIMINAL LAW (INSANITY ACQUITTEE, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT)/INSANITY ACQUITTEE  (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/RETENTION HEARING (INSANITY ACQUITTEE, (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD 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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