| People v Diaz |
| 2017 NY Slip Op 04044 |
| Decided on May 18, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 18, 2017
Tom, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.
4047 1819/11
v
Jason Diaz, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Judgment, Supreme Court, New York County (Juan M. Merchan, J. at suppression hearing; Ronald A. Zweibel, J. at jury trial and sentencing), rendered April 4, 2013, convicting defendant of two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 15 years, unanimously reversed, on the law, and the matter remanded for a new trial.
The record does not reflect that the court read or showed a jury note to the parties or afforded them an opportunity to provide input before the court responded to the note, and it cannot be presumed that the court complied with CPL 310.30 in a preceding off-the-record conference (see People v Silva, 24 NY3d 294, 299-300 [2014]; People v Walston, 23 NY3d 986, 990 [2014]). Although defendant's challenge to the court's handling of the note is concededly unpreserved, the court failed to comply with the core requirements of People v O'Rama (78 NY2d 270 [1991]), which constitutes a mode of proceedings error requiring reversal (see id. at 279-280; see also People v Tabb, 13 NY3d 852 [2009]; People v Robinson, 144 AD3d 40 [1st Dept 2016]). Since the note, along with all other jury notes in this case, have been lost, it is impossible to determine whether the court read the note verbatim in court when it gave its supplemental instruction. Moreover, the phrasing of the court's description of the note is consistent with it having been a paraphrase or summary of the note. Therefore, the preservation requirement set forth in People v Nealon (26 NY3d 152, 154 [2015]) does not apply.
Since we are remanding for a new trial, we find it unnecessary to consider defendant's remaining arguments, except
that we find that defendant's suppression motion was properly denied (see e.g. People v Montague, 175 AD2d 54 [1st Dept 1991]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 18, 2017
CLERK