Contrary to the People’s contention, the defendant’s contention that the hearing court improperly relied upon the fellow-officer rule to conclude that his arrest was supported by probable cause is preserved for appellate review, since the hearing court expressly decided that there was probable cause for the defendant’s arrest based upon the fellow-officer rule (see CPL 470.05 [2]; People v Feingold, 7 NY3d 288, 290 [2006]; People v Prado, 4 NY3d 725, 726 [2004]; People v Berry, 49 AD3d 888, 889 [2008]). Moreover, upon a review of the hearing record, we conclude that the defendant’s motion to suppress identification testimony and physical evidence should have been granted.
Consequently, the hearing court should have suppressed, as the fruits of the unlawful arrest, the physical evidence seized from the defendant, as well as the testimony regarding a showup identification (see People v Dodt, 61 NY2d 408, 417 [1984]; People v Moses, 32 AD3d 866, 868 [2006]; People v Thomas, 32 AD3d 869, 870 [2006]; People v Skinner, 220 AD2d 350, 351 [1995]).
Additionally, the Supreme Court failed to comply with CPL 310.30. When a trial court receives a “substantive written jury communication” during deliberations, the court must put forth the inquiry on the record and allow counsel a full opportunity to suggest an appropriate response (People v O’Rama, 78 NY2d 270, 277 [1991]). The opportunity to respond “is essential to counsel’s ability to represent the client’s best interest and, further, to ensure the protection of the client’s constitutional and statutory rights at these critical postsubmission proceedings” (id. at 277)
During deliberations, the jury sent out a note reporting that it was deadlocked, along with a tally sheet. Although the note was marked as court exhibit 10, neither the note nor the tally sheet was read into the record. There is no indication in the record that the Supreme Court provided defense counsel with a summary of the note’s contents or of the accompanying tally sheet, or that counsel was afforded an opportunity to suggest an appropriate response (see People v Lewis, 77 AD3d 579, 580 [2010]). Although, during the pendency of this appeal, the
In any event, even if resettlement were an appropriate remedy, a showing that the contents of the jury note were revealed to counsel off the record would be of no avail to the People, since Court of Appeals case law interpreting CPL 310.30 contemplates that the procedure for complying with that statute will occur on the record. Specifically, the Court of Appeals has held that “whenever a substantive written jury communication is received by the Judge,” it should be “read into the record in the presence of counsel,” and that, “[a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses” (People v O’Rama, 78 NY2d at 277-278). This procedure is designed to “ensure a clear and complete record, thereby facilitating adequate and fair appellate review” (id. at 278).
Here, the Supreme Court failed to fulfill its “core responsibility” under CPL 310.30 (People v Kisoon, 8 NY3d 129, 135 [2007]). This constituted a mode of proceedings error that is exempt from preservation requirements and requires reversal (see People v Tabb, 13 NY3d 852, 853 [2009]; People v Lockley, 84 AD3d 836 [2011]; People v Surpris, 83 AD3d 742, 744 [2011]; People v Lewis, 77 AD3d at 580).
In light of the foregoing, the defendant’s convictions of burglary in the third degree, criminal possession of stolen property in the fifth degree (two counts), and trespass must be reversed (see People v Sanchez, 276 AD2d 723 [2000]), and the matter must be remitted to the Supreme Court, Queens County, for further proceedings on those counts of the indictment. Since the defendant was acquitted of the count of the indictment
In light of our determination, we need not reach the defendant’s remaining contention. Rivera, J.P., Hall, Lott and Cohen, JJ., concur.