People v. Anner Rivera


AD2 order dated January 23, 2013, reversing judgment of conviction. Decision below: 102 AD3d 893, 958 NYS2d 222. Lippman, Ch.J., granted leave to People June 26, 2013.

ISSUE PRESENTED: Whether the trial judge’s responding to substantive legal questions from a single juror in the robing room, outside the presence of the parties and the other jurors, constituted a mode-of-proceedings error not subject to harmless error analysis, even though defense counsel consented to the procedure, the judge told defendant and counsel what happened in the robing room, and the judge offered to have the conversation read back. (Assigned counsel: Kathleen Whooley & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)

Issue: Was the court’s ex parte (though recorded) colloquy with a single deliberating juror who sought further guidance on justification, a violation of CPL §310.30 requiring reversal without respect to preservation? 


Held: Yes.  Relying on People v. Cain, 76 N.Y.2d 119 (1990),  a majority of the Court found that a private conversation between a juror and the court is a non-ministerial violation of 310.30, not subject to cure.  It is irrelevant whether the defendant could have had any impact of the colloquy. The four-judge majority rejects the dissent’s position that a “de minimis” exception should apply.  


CAL Observes: This is an error that seems unlikely to repeat itself, though that three judges would find a “de minimis” exception to this already narrow exception signals a readiness to chip away at mode of proceedings errors.