People v Martin, __ AD3d __ [available here]
A jury in a murder trial sent out three notes to the judge during deliberations. The first note--asking the trial judge to repeat the jury charge for all three counts of the indictment--was ignored by the trial judge, who did not read the contents of the note into the record and did not respond to the note. (People v Martin, __ AD3d at __.) The jury sent out another note later, seemingly requesting a readback of the jury charge for count one of the indictment; the trial court did not read the note verbatim into the record, but did try to respond to the note by rereading the charge for count one. (Id. at __.) While the jurors were in the courtroom for the readback, a juror requested a readback of the jury charge for count two of the indictment. (Id. at __.) The trial judge complied with the request and gave the readback. (Id. at __.) About 30 minutes later, the jury sent out another note seemingly asking the court to repeat the jury charge for count three of the indictment; the trial judge did not read the note into the record, but did give the charge for count three again.
A majority of the Fourth Department found the trial judge's failure to read any of the jury notes into the record and the failure to respond at all to the first note was a "mode of proceeding" error that required reversal without regard to preservation or harmless error. From the decision:
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' and the court's failure to respond to that request. We further agree with defendant that reversal is also required based on the court's failure to read into the record the jury's second note requesting, inter alia, 'First Count 3 points'. 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'. 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'. Thus, those errors are 'not subject to the usual rules of preservation'. Nor are the errors here subject to harmless error analysis. The failure to disclose the exact content of the jury's substantive inquires was 'inherently prejudicial,' effectively depriving defendant of an opportunity to evaluate those inquiries and to propose responses.
(Id. at __.)
Justices Scudder and Kehoe dissented. Although the dissenters agreed that the trial court erred by not responding to the first note, they did not approach the issue as a "mode of proceeding" error and would have required a showing of prejudice. Since the court covered all of the information requested in the first note in response to later jury notes, "the court's errors were cured by the jury's two subsequent notes and on-the-record request for that same information, and by the court's prompt and 'meaningful' responses to those subsequent requests." (Id. at __.) As to the failure to read the jury notes into the record, the dissenters would have required preservation:
Although . . . apprised of the existence and substance of the notes, defense counsel never made a request on the record to view the notes, never complained on the record about the court's failure to read the notes into the record verbatim, never suggested responses to the notes on the record, and never complained on the record about the adequacy of the court's responses to the notes. "[D]efense counsel's failure to object at a time when the court could have corrected the alleged errors renders defendant's contention[s] unpreserved for our review."
(Id. at __ [citations omitted].)
Hard to fault the reasoning of either the majority or dissenters here--as is so often the case, the framing of the issue (i.e. whether the mistake is characterized as a "mode of proceeding" error or not) dictates the outcome.