People v. Meyers , 148 A.D.3d 1057 ( 2017 )

People v Meyers (2017 NY Slip Op 02064)

People v Meyers

2017 NY Slip Op 02064

Decided on March 22, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
CHERYL E. CHAMBERS
JEFFREY A. COHEN, JJ.

2015-02398
(Ind. No. 294/13)

[*1]The People of the State of New York, respondent,

v

Vincent Meyers, appellant.

Patrick Michael Megaro, Uniondale, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Pamela Kelly-Pincus of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Carter, J.), dated March 12, 2015, convicting him of robbery in the second degree (two counts), assault in the second degree, criminal possession of stolen property in the fourth degree, criminal possession of stolen property in the fifth degree, criminal mischief in the fourth degree (two counts), and harassment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Nassau County, for a hearing in accordance herewith regarding the item in the court file denominated "Court Exhibit # XIV," and thereafter a report to this Court limited to its findings, and the appeal is held in abeyance pending receipt of the Supreme Court's report, which shall be filed with all convenient speed.

An item in the court file marked "Court Exhibit # XIV" appears to be a jury note, or a draft of a jury note. The contents relate to instructions on the law and the progress of the jury's deliberations. The item was neither referred to in open court nor marked on the clerk's list of court exhibits. The defendant contends that the item was a jury note and that the Supreme Court did not comply with CPL 310.30 in addressing it (see People v Mack, 27 NY3d 534, 538-539; People v Alcide, 21 NY3d 687, 691-692). The People contend that the matter should be remitted to the Supreme Court, Nassau County, for a hearing. We agree that a hearing is appropriate. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to assess all the circumstances regarding the item, including when and how it came to the court's attention and when it was marked as a court exhibit and placed into the court file, and thereafter a report to this Court limited to the Supreme Court's findings (see People v Mitchell, 129 AD3d 404, 404). The appeal will be held in abeyance pending receipt of the Supreme Court's report. We decide no other issues at this time.

RIVERA, J.P., BALKIN, CHAMBERS and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court