BRINK, RONALD, PEOPLE v ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1109
    KA 08-02649
    PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    RONALD G. BRINK, DEFENDANT-APPELLANT.
    (APPEAL NO. 1.)
    LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Ontario County Court (Craig J.
    Doran, J.), rendered December 9, 2008. The judgment convicted
    defendant, upon a jury verdict, of burglary in the second degree and
    grand larceny in the fourth degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously reversed on the law, the second count of the indictment is
    dismissed without prejudice to the People to file or represent to
    another grand jury any appropriate lesser charge under that count, and
    a new trial is granted on the remaining count, in accordance with the
    following memorandum: Defendant was convicted upon a jury verdict of
    burglary in the second degree (Penal Law § 140.25 [2]) and grand
    larceny in the fourth degree (§ 155.30 [1]). On a prior appeal, this
    Court modified the judgment by reducing the conviction of grand
    larceny to petit larceny and remitted the matter to County Court for
    sentencing on the petit larceny conviction (People v Brink, 78 AD3d
    1483, lv denied 16 NY3d 742, reconsideration denied 16 NY3d 828). We
    subsequently granted defendant’s motion for a writ of error coram
    nobis, however, on the ground that appellate counsel had failed to
    raise an issue on appeal that may have merit, i.e., whether County
    Court erred in failing to comply with CPL 310.30 in its handling of a
    jury note (People v Brink, 124 AD3d 1419, 1419). Upon reviewing the
    appeal de novo, we agree with defendant that the judgment of
    conviction must be reversed and a new trial granted.
    We agree with defendant that the court violated the core
    requirements of CPL 310.30 in failing to advise counsel on the record
    of the contents of a substantive jury note before accepting a verdict,
    and thereby committed reversible error (see People v Silva, 24 NY3d
    294, 299-300; People v O’Rama, 78 NY2d 270, 277-278). The record
    establishes that, during its deliberations, the jury sent two notes
    -2-                          1109
    KA 08-02649
    requesting certain specified testimony and legal instructions. The
    record reflects that the court read those notes into the record and
    formulated its response after discussing them with counsel. As the
    court brought the jury into the courtroom to respond to the first two
    notes, the jury gave a third note to the court. The court told the
    jury that it would respond to the first two notes at that time, and
    would then discuss the issue raised in the third note with counsel
    after sending the jury back to the jury room. The court stated that
    the “third note [had] not yet [been] shown to counsel nor have we had
    an opportunity to discuss it.” The record further reflects that the
    jury resumed its deliberations after the court provided requested
    testimony and instruction in response to the first two notes, and then
    rendered a verdict of guilty. The third note, which is included in
    the record, indicates that the jury was seeking the testimony of a
    particular witness on a specific topic, but there is nothing in the
    record indicating that the note was shown to counsel, or that it was
    read into the record before the jury rendered its verdict. Where, as
    here, “the record fails to show that defense counsel was apprised of
    the specific, substantive contents of the note . . . [,] preservation
    is not required” (People v Walston, 23 NY3d 986, 990; see Silva, 24
    NY3d at 299-300), and we conclude that the “[c]ourt committed
    reversible error by violating the core requirements of CPL 310.30 in
    failing to advise counsel on the record of the contents of a
    substantive jury note before accepting a verdict” (People v Garrow,
    126 AD3d 1362, 1363). We therefore reverse the judgment and grant a
    new trial, but only on the burglary count.
    We note that, in the order on the original appeal, this Court
    reduced the conviction of grand larceny in the fourth degree (Penal
    Law § 155.30 [1]), to petit larceny (§ 155.25), based on the
    insufficiency of the evidence on the greater charge (Brink, 78 AD3d at
    1483-1484). In our order granting defendant’s motion for a writ of
    error coram nobis, however, we vacated that order and indicated that
    we would consider the appeal de novo, and defendant does not address
    the sufficiency of the evidence in his brief on appeal (Brink, 124
    AD3d at 1419). We further note the well-settled principle, however,
    that “dismissal of a count due to insufficient evidence is tantamount
    to an acquittal for purposes of double jeopardy and protects a
    defendant against additional prosecution for such count” (People v
    Biggs, 1 NY3d 225, 229). Consequently, we conclude, for the reasons
    stated in our original order in the matter (Brink, 78 AD3d at 1483-
    1484), that the evidence is not legally sufficient to support the
    conviction of grand larceny in the fourth degree. Nevertheless,
    because we further conclude that the evidence is legally sufficient to
    support a conviction of petit larceny, upon reversing the conviction
    of grand larceny in the fourth degree based on the court’s error with
    respect to the jury note, we dismiss the second count of the
    indictment without prejudice to the People to file or represent to
    another grand jury any appropriate charge under that count (see People
    v Walker, 119 AD3d 1402, 1403).
    Entered:   December 23, 2015                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 08-02649

Filed Date: 12/23/2015

Precedential Status: Precedential

Modified Date: 10/7/2016