CA: trial court's failure to read jury's note into record is a mode of proceeding error

People v Kisoon, People v Martin, 2007 NY Slip Op _____ [available here]

Deciding two appeals, the Court of Appeals held that "a trial court committed a mode of proceedings error when it failed to disclose, or significantly paraphrased, a jury note." (Kisoon, 2007 NY Slip Op _____.) A trial court is required by statute to give "notice" of a jury's note to both the prosecutor and defense counsel, and the Court of Appeals has previously held that this "notice" should be accomplished by marking the jury note as a court exhibit and reading the contents of the note into the record. (See CPL 310.30; People v O'Rama, 78 NY2d 270 [1991].) Now the good caselaw of O'Rama is even better, because no objection at trial is necessary to preserve the issue for appeal. If the trial court fails to read the jury note into the record verbatim, reversal is required regardless of whether defense counsel objects. (Id. at __.) As the Court notes in Kisoon, "failure to read the note verbatim deprive[s] counsel of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response." (Id.)