AD4 order dated June 17, 2011, affirming judgment of conviction. Decision below: 85 A.D.3d 1700, 925 N.Y.S.2d 758. Fahey (AD dissenter), J., granted leave September 7, 2011. Argued November 13, 2012. (Taken off SSM.)

ISSUE PRESENTED: Whether the verbal byplay and Q&A between the prosecutor and the deliberating jury, as he replayed a video recording in evidence, constituted a mode of proceedings error. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issue: Whether the trial judge’s decision to allow the prosecutor to interact directly with the jury while replaying a surveillance video during deliberations violated People v. O’Rama, 78 N.Y.2d 270 (1991), and/or was an improper delegation of judicial responsibility in contravention of People v. Ahmed, 66 N.Y.307 (1985).

Held: O’Rama was not implicated because the prosecutor’s actions – "asking that the lights be dimmed because a juror was bothered by the glare, playing the video again once they were, or attempting to stop the video at the place the jurors wished" – are ministerial, not substantive actions, not implicating O’Rama. Because counsel did not object, despite an opportunity to do so, no issue of law was presented.

Nor was Ahmed implicated. The judge’s control of the courtroom was not "diminished in any way," as he was "present throughout and participated in the discussion during the replay of the video."