AD2 order dated August 28, 2014, affirming judgment of conviction. Decision below: 120 AD3d 842, 992 NYS2d 99. Smith, J., granted leave December 23, 2014. Argued September 10, 2015.

ISSUES PRESENTED: (1) Where the parties agreed that the court provide the deliberating jury with any requested exhibits without following the O’Rama protocol, whether the court erred in not consulting counsel when the jury asked “to see the benefits offered” to the People’s two cooperating witnesses, and instead sent in a cooperation-agreement-exhibit as to only one of the witnesses, where the only evidence of the other cooperator’s benefits was in the testimony. (2) Whether counsel opened the door to a photo array. (3) Whether a detective was erroneously allowed to testify that defense counsel was present at a pretrial lineup. (Assigned counsel: Joel B. Rudin, 600 5th Avenue, 10th Floor, NYC 10020.)

Issue Before The Court: 

 

Whether the trial judge mishandled a note from the deliberating jurors who asked to “see the benefits” that the District Attorney had given two key prosecution witnesses. Although both witnesses benefitted by cooperating with the prosecutor, only one had a written cooperation agreement. The judge gave the jurors a copy of that written agreement but did not provide a read back of their testimony where the witnesses acknowledged other steps that the prosecutor had taken to help them out on their criminal cases. Upon providing the written agreement, the court simply informed the jurors, “that is what’s in evidence.” The judge did not ask the jurors to clarify their note.

 

Holding:

 

The judge “abused [his] discretion, as a matter of law, by failing to adequately answer the jurors’ . . . note and creating a false impression of the nature of the evidence.”  Reversal was required because the error affected the jury’s ability to judge the credibility of two important witnesses.

 

CAL observes:

 

At the time of the leave grant, this case appeared to be about the judge’s failure to consult with counsel before responding to the jury, as required by People v. O’Rama, 78 N.Y.2d 270 (1991), and whether the parties had waived the O’Rama protocol by agreeing, as is common, that exhibits could be sent to the jury without consulting the lawyers. In her concurrence, Judge Rivera found the Court’s analysis to be “overbroad” and would have found the judge’s action to be a mode-of-proceedings error under O’Rama and, therefore, reversible despite the lawyer’s failure to object on O’Rama grounds.