People v. Martin , 808 N.Y.S.2d 865 ( 2006 )

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered December 18, 1992. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law and a new trial is granted on the first and third counts of the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]) under the first and third counts of the indictment. The jury did not reach the second count, charging depraved mind murder (§ 125.25 [2]). We note that we previously affirmed the judgment of conviction (People v Martin, 225 AD2d 1029 [1996], lv denied 88 NY2d 881 [1996]), but we thereafter granted defendant’s motion for a writ of error coram nobis based on the contention of defendant that he was denied his right to effective assistance of appellate counsel because counsel failed to argue in the prior appeal “that the defense was never given an opportunity to review the various jury notes, or to have input into the trial court’s response to such notes” (People v Martin, 17 AD3d 1172, 1172 [2005]). In granting defendant’s motion, we concluded that the argument with respect to the jury notes “may have merit” (id.), and we now conclude that the argument has merit with respect to two of the three jury notes requesting additional instructions during deliberations.

We agree with defendant that reversal is required based on Supreme Court’s failure to read into the record the jury’s first note requesting, inter alia, “definitions of 3 counts” (see People v O'Rama, 78 NY2d 270, 277-278 [1991]; People v Sanchez, 244 AD2d 922, 923 [1997], lv denied 92 NY2d 905 [1998]; People v Roberts, 236 AD2d 848, 849 [1997], lv denied 89 NY2d 1040 [1997]) and the court’s failure to respond to that request (see People v Butler, 192 AD2d 1126, 1127-1128 [1993]; see generally People v Santi, 3 NY3d 234, 248 [2004]). We further agree with defendant that reversal also is required based on the court’s failure to read into the record the jury’s second note requesting, inter alia, “First Count 3 points” (see O'Rama, 78 NY2d at 277-278; Sanchez, 244 AD2d at 923). The court’s attempt to interpret and paraphrase that note does not serve as a substitution for the requisite notice to defense counsel “of the actual specific content of the jurors’ request” (O'Rama, 78 NY2d at 277). With respect to both notes, “the court’s error[s] in failing to disclose the contents of the note[s] had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from the organization of the court or the mode of proceedings prescribed by law” (id. at 279 [internal quotation marks omitted]). Thus, those errors are “not subject to the usual rules of preservation” (People v Kisoon, 23 AD3d 18, 23 [2005]). Nor are the errors here subject to harmless error analysis. The failure to disclose the exact content of the jury’s substantive inquiries was “inherently prejudicial,” effectively depriving defendant of an opportunity to evaluate those inquiries and to propose responses (People v Cook, 85 NY2d 928, 931 [1995]; see O'Rama, 78 NY2d at 279-280).

We reject the contention of defendant, however, that reversal is required on the additional ground that he was denied his fundamental right to be present during the court’s response to the jury’s third note. The absence of a notation in the record indicating that defendant was present is not sufficient to demonstrate that he was not present (see People v Foster, 1 NY3d 44, 48; People v Afrika, 13 AD3d 1218, 1222-1223 [2004], lv denied 4 NY3d 827 [2005]), and thus defendant has failed to come forward with substantial evidence to rebut the presumption of regularity that attaches to criminal proceedings (see Afrika, 13 AD3d at 1222-1223; see generally People v Andrew, 1 NY3d 546, 547 [2003]). In view of our decision herein, we do not address defendant’s remaining contentions.

All concur except Scudder and Kehoe, JJ., who dissent and vote to affirm in the following memorandum.