People v. Perfetti

Dillon, P. J. (dissenting).

I dissent. In my view there should be a reversal and a new trial. In the course of its deliberations the jury caused to be delivered to the trial court an envelope which contained two notes, one of which stated: “We would like to state three opinions on the verdict, if we may.” The content of the other note remains unknown, but as reconstructed on the day following the verdict by the jury foreperson at the request of the court, it contained the following: “lack of police procedure * * * incomplete chemist’s notes * * * wrong label on prescription bottle”. After the envelope containing the two notes was delivered to the Trial Judge in chambers, but before he had an opportunity to resume the Bench, the jury caused to be delivered to the court a second envelope which contained its verdict. Thereupon court was reconvened and the *972colloquy quoted by the majority occurred. After inquiry by the clerk, the jury reported its guilty verdict and was discharged. Prior to the verdict the note listing the three subjects upon which the jury apparently wished to comment was not marked as an exhibit, nor was its content made known to defendant or his counsel. It was not until the following day, after the note from the jury had been lost, that defense counsel was informed by the court that there had been such a note. A defendant has a right to be present at all stages of a criminal proceeding when “his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge” (Snyder v Massachusetts, 291 US 97,105-106;People ex rel. Bartlam v Murphy, 9 NY2d 550,553; NY Const, art I, § 6). When a court gives supplemental instructions to the jury in response to questions raised by the jurors, defendant’s presence is both statutorily and constitutionally required (People v Ciaccio, 47 NY2d 431,436-437; CPL 310.30). That right is clearly violated where, as here, defendant and his counsel, though present, were not informed prior to verdict of the content of a communication between the jury and the court. Defendant was deprived of any opportunity to have the court seek clarification of the jury’s inquiry, to request further instructions to the jury, or to except to the instruction which was given. The failure of the court to have made defendant and his counsel aware of the content of the communication was fundamental error which requires reversal and a new trial (People v Ciaccio, supra). (Appeal from judgment of Oneida County Court — criminal sale of controlled substance, sixth degree.) Present — Dillon, P. J., Cardamone, Simons, Doerr and Moule, JJ.