In People v. Parker (Ct. App. 6/28/2018) (Rivera, J.), the Court granted the defendants’ request for a new trial due to the trial court’s failure to provide “meaningful notice” of two jury notes to defense counsel. The defendants were convicted of Robbery 2º after allegedly robbing thousands of dollars from a commercial establishment.
On the second day of jury deliberations, the jury sent three notes to the court: one note requested definitions of the charged crimes and testimony linking witnesses to where the defendants were seen and caught; a second note requested further testimony relating to fingerprint evidence; and a third requested testimony from the victim and his wife. In response to the jury’s notes, the court initially responded to solely the first note and subsequently dismissed the jury for a one-hour lunch break. However, immediately after the break and without receiving response to its latter two notes, the jury entered a verdict.
Under CPL § 310.30, a trial court is required to direct that the jury be returned to the courtroom after notice has been given to the defense counsel of any substantive notes provided by the jury. This allows defense counsel an opportunity to formulate a response to the jury’s inquiries before the jury’s return to the courtroom. In this case, it was undisputed that the defense counsel was not informed of the contents of the latter two jury notes. As the Court provides in its opinion, the proof that the trial court relayed the substance of the notes to the defense counsel must be specifically in the record. Here, it was not. Therefore, the Court found that the “sole remedy” in failing to comply with CPL § 310.30 was to reverse and grant the defendants’ a new trial.
Chief Judge DiFiore dissented, remarking that the holding of the majority’s leading precedent focused on a more general concept. She argued that O’Rama‘s holding required the trial court’s compliance with providing notice to defense counsel of the jury notes; it did not mandate the inclusion of such notice in the record. The Chief Judge wrote that the defense counsel was indeed informed of the overall substance of the jury notes in an off-the-record meeting. As such, she argued that ordering a new trial was an excessive remedy and completely off-base with O’Rama‘s requirements. Instead, Chief Judge DiFiore proposed the remedy of a reconstruction hearing, which is provided to amend ambiguities in the record. Importantly, the Chief Judge also noted that the jury was well aware that the trial court had not responded to the latter two notes it had received. However, the jury’s verdict ultimately rescinded the requests in those notes, further supporting the argument that ordering a new trial was unwarranted (AP/LC).