Approximately 90 minutes into the deliberations, the jurors sent a note to the court stating that they believed that they would never reach a unanimous verdict and their current vote totals on each charge. The court summarized the contents of the note to the attorneys outside the presence of the jury, but did not inform the attorneys of the vote total. After the jury was seated, the court read the following portion of the note: “[W]e believe that further deliberation will not change our decision,” without mentioning the vote totals, and delivered an Allen charge (see Allen v United States, 164 US 492 [1896]). Defense counsel never sought to see the note or have it read verbatim into the record, nor did he ask the court to inform him what its intended response to the note was, or suggest language for the court’s charge. Moreover, defense counsel never objected to the Allen charge either as the court was delivering it or after the jury had retired to deliberate.
The trial court did not follow the procedure suggested in People v O’Rama (78 NY2d 270 [1991]) for dealing with notes from the jury. The court’s summary, while essentially the same as the language of the note, did not state that the jury was voting 10 to 2 in favor of conviction. However, we find the defendant’s claim that it was error for the court not to inform defense counsel of the actual contents of the jury’s note is unpreserved for appellate review because he did not object at any time to the court’s failure to read the note, nor did he ask for permission to view the note. While defense counsel could have obviated the court’s error with a timely objection, he chose instead to remain silent.
*25The majority holds that traditional preservation rules do not apply and the conviction should be overturned notwithstanding the defendant’s failure to object to the court’s procedure at trial. In People v O'Rama (supra at 279) the Court of Appeals held that a defendant need not object to the trial court’s improper handling of a jury note in order to challenge the court’s procedure on appeal if the court’s actions had the effect of “preventing defense counsel from participating meaningfully in this critical stage of the trial” (see People v Cook, 85 NY2d 928, 931 [1995]; see also People v Guzman, 259 AD2d 632 [1999]; People v Heath, 234 AD2d 388 [1996]). However, in these cases the trial court affirmatively prevented defense counsel from having any input into formulating the court’s response to the note. Here, in contrast, although the court did not read the note verbatim or invite defense counsel to participate in formulating the response, it did not prevent counsel from reading the note or from suggesting or commenting on the response to the jury, nor did it refuse counsel an opportunity to make a record of any objections (see People v Cook, supra at 930). It is the absence of these actions by the trial court that distinguishes this case from O’Rama and its progeny, as the court’s handling of the jury note did not prevent defense counsel from meaningful participation in responding to the jury’s inquiry. Therefore, this case is not within the O’Rama exception to traditional preservation rules.
Moreover, O’Rama is distinguishable because there the trial court summarized a lengthy and detailed juror’s note by merely stating “there are continued disagreements among the jurors” (78 NY2d at 275). Here, the court’s summary of the jury’s note, along with its reading of a portion of the note, accurately conveyed to defense counsel the essential “language and tone” of the jury’s inquiry (id. at 277). In People v DeRosario (81 NY2d 801 [1993]), the Court of Appeals had occasion to revisit this issue and rejected the defendant’s contention that no preservation was necessary, distinguishing the court’s actions from O’Rama. The Court stated that O’Rama involved “a total deprivation to defense counsel of notice and an opportunity to participate meaningfully in the court’s response” while traditional preservation rules applied in DeRosario because defense counsel had been present, was given notice of the jury’s inquiry and had participated in formulating the court’s response (id. at 803). Similarly, in People v Starling (85 NY2d 509 [1995]), the Court of Appeals held that traditional rules requiring timely objection *26were applicable because “defense counsel was given notice of the contents of the jury notes and had knowledge of the substance of the court’s intended response . . . counsel’s silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here” (id. at 516).
Here, there is no merit to the contention that the trial court somehow led defense counsel to believe it was actually reading the note instead of paraphrasing it. The statement by the court when it summarized the note cannot reasonably be interpreted as a verbatim reading. Moreover, the fact remains that defense counsel never asked to see the note, did not ask that it be read into the record, and did not ask the court to inform him of its intended response. Indeed, the only part of the note not conveyed to defense counsel was the current vote of the jury. The defendant argues that had defense counsel known that two jurors were voting to acquit he might have asked the court to include language in the charge stressing the importance for jurors to not surrender their conscientiously held views. However, counsel knew that the jury was “deadlocked,” and at least one juror was voting for acquittal, yet he failed to request that this language be included in the supplemental Allen charge. Instead, he chose to sit silently while the trial court responded to the jury’s note. Accordingly, the defendant’s argument that the trial court’s actions deprived him of the assistance of counsel at a critical stage of the proceeding is unpreserved for appellate review (see People v Cintron, 273 AD2d 84 [2000]; People v Neal, 268 AD2d 307 [2000]). Furthermore, the court’s response to the jury’s note does not warrant reversal as the defendant was not prejudiced thereby (see People v Maldonado, 237 AD2d 463 [1997]; People v Tinner, 209 AD2d 457 [1994]).
Florio, J.P., and Luciano, J., concur with Fisher, J.; Schmidt and Adams, JJ., dissent and vote to affirm the judgment in a separate opinion by Schmidt, J.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.