OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be modified by vacating defendant’s conviction of manslaughter in the first degree, with leave to the People to resubmit that charge to a grand jury, and remitting to Supreme Court for resentencing on defendant’s conviction of criminal possession of a weapon in the second degree and, as so modified, affirmed.
Defendant was indicted on one count each of murder in the second degree (Penal Law § 125.25 [1] [intentional murder]) and criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] [possession of a loaded firearm]), after he shot the victim five times, killing him. At the conclusion of proof at trial, the court granted defense counsel’s request to charge the jury on the lesser included offense of manslaughter in the first degree (Penal Law § 125.20 [1] [intent to cause serious physical injury to another person, and causing the death of such person]). The court instructed the jury on counts of second-degree murder, first-degree manslaughter and second-degree weapon possession, and, as relevant here, gave an expanded intent charge that applied with equal force to the murder and manslaughter counts.
During deliberations, the jury sent a note that read: “Power Point - Judge[’]s directions on Manslaughter/Murder in the Second Degree - (Intent).” The court apprised counsel that the jury “want[ed] the Judge’s directions on manslaughter and murder in the second degree,” but did not mention the note’s “intent” language. After the jury entered the courtroom, the court again paraphrased the note by stating “you have asked for a read back of manslaughter and murder” and gave the standard charges for each crime. The jury acquitted defendant of murder but found him guilty on the manslaughter and weapon possession counts.
On appeal, defendant claimed that the trial court’s handling of the jury note violated the procedure delineated in People v O’Rama (78 NY2d 270 [1991]). The Appellate Division concluded that defendant’s O’Rama argument was unpreserved and that the claimed error did not constitute a mode of proceedings error (101 AD3d 1156, 1157-1158 [2d Dept 2012]).
CPL 310.30 requires that when the trial court receives a request “for further instruction or information with respect to
The Appellate Division erred in concluding that defendant was required to preserve his O’Rama argument. We have acknowledged that some departures from O’Rama procedures are subject to our rules of preservation, such as where the court reads the “entire content” of the note verbatim in open court prior to responding to the jury (see People v Alcide, 21 NY3d 687, 693-694 [2013]; People v Starling, 85 NY2d 509, 516 [1995] [court read the entire content of the notes in open court]; People v DeRosario, 81 NY2d 801, 803 [1993] [requiring application of traditional preservation rules where defense counsel was present, was given notice of the contents of the written inquiry and participated in formulating responses thereto]). In such cases, although there has been a deviation from procedure, preservation is required where it is evident from the record that the trial court fulfilled its core responsibilities. When a court fails to fulfill those responsibilities, however, a mode of proceedings error occurs and departures from the O’Rama procedures are not subject to preservation rules (Kisoon, 8 NY3d at 135; O’Rama, 78 NY2d at 279).
That does not mean, however, that defendant is entitled to vacatur of his conviction on the weapon possession count. In his written statement, which was read to the jury and admitted in evidence, defendant confessed to possessing a loaded firearm and shooting the victim. The People also presented evidence from a witness who testified that he had given defendant the revolver that defendant used moments before the shooting. Because the note at issue was addressed to an element relative to the homicide counts, and not to the weapon possession count, there was no danger of prejudice as it related to the latter count.
*.
Defendant claims that he was deprived of the effective assistance of counsel because his attorney should have requested that the court charge the lesser included offense of manslaughter in the second degree. In light of our holding, we do not reach that issue.