People v. Anderson

Smith, J. (dissenting).

I dissent because I cannot agree that the trial court’s decision to permit a jury to take notes, when it repeated the elements of forgery at the jury’s request, violated the defendant’s due process rights or any of his rights.

First, no objection to the court’s action was made until the jury had received the supplemental instructions. At that time the defendant did not request any cautionary instructions.

Second, no statute or case required the court to obtain the consent of the defendant before notes were taken by a juror. The cases cited by the majority do not require reversal. In People v Owens (69 NY2d 585 [1987]), the Court of Appeals held that it was reversible error for a court to submit a portion of its charge in writing to the jury in the face of an objection by the defendant. In People v DiLuca (85 AD2d 439 [2d Dept 1982]), the Appellate Division held that while a court had the discretion to permit note-taking by jurors, the permission should have been accompanied by cautionary instructions.

Third, tou reverse on the basis of the action taken here is to negate the discretion of a trial court to meet the necessities of a trial situation.

Finally, it is of significance that the evidence of guilt in this case was overwhelming and there is no showing of prejudice. (Cf., People v Lourido, 70 NY2d 428, 435 [1987]; and People v Agosto, 73 NY2d 963, where the Court of Appeals indicated that a court must make a meaningful response to a jury’s request for further instruction and that a trial court’s failure to respond to a jury’s note would be reversible error only if such failure prejudiced the defendant.)