The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Following a joint trial, defendant Mark Ochoa was found guilty of one count of robbery in the second degree, and defendant Mark Figueroa was convicted of two counts of robbery in the second degree and one count of criminal possession of a weapon arising from events that occurred in January of 2003.
Fernando Cruz had taken his video game console to Madeline Ruballo's sixth-floor apartment, meeting up with defendants. According to later testimony, the four of them spent the night smoking crack cocaine. At some point, Cruz decided to take his console and leave. As Cruz approached the door, Figueroa pulled out a box cutter, reached for the console, and demanded that Cruz give it to him. Cruz and Figueroa began struggling and ended up on the sixth-floor landing. Ochoa then allegedly pulled Cruz's jacket over his head, causing his wallet to fall to the floor. Figueroa took the console and fled, with Ochoa following. Cruz claimed over $200 was taken from his wallet as well.
Following their arrest, defendants were charged, on an "acting in concert" theory, with the crimes of robbery in the first degree, robbery in the second degree (two counts), robbery in the third degree (two counts) criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree.
Cruz and Ruballo testified at trial, and were subjected to vigorous cross-examination by defense counsel, who were able to elicit several inconsistencies in their testimony.
Defense counsel impeached Cruz with false statements he had made in his two appearances before the grand jury, and confronted Ruballo with statements to police that she later admitted were untrue. The prosecutor's redirect examination of those witnesses forms the basis of one of the issues raised on this appeal.
The other issue involves the trial judge's handling of a note he received from the foreperson an hour after the jury had reached its verdict.
Prior to the judge's receipt of that note, the jury had sent three other notes either asking for further instruction or advising the court that it was deadlocked. In each of those instances, the court ensured that defendants and counsel were present, read the note aloud, and then addressed its substance before the jury. The day of the verdict, the court received two more notes. The first, which was written at 1:25 p.m., stated, "Have reached a verdict." The second, a personal note from the foreperson, was written at 2:20 p.m. and stated, "Your Honor, I do not feel comfortable reading this verdict."
The judge met with the foreperson without informing defense counsel beforehand. However, immediately afterward, in open court, the judge explained:
"The Court has received two notes, one they reached a verdict, which you know. You. . . gentlemen saw one personal note from the foreperson that he doesn't feel comfortable reading the verdict. For the record, the court asked the foreperson to come down, he sat right here and the foreperson was inquired into why he didn't feel comfortable. He said, well, he didn't want to have to go through and have to say what the verdict was, never telling me [the court] the verdict. I told him the way it works. The clerk asks him and say [sic], Have you reached a verdict. Yes. As to the first count on Mr. Figueroa, guilty or not guilty. As to the first count on Mr. Ochoa, and I explained to him how it goes and all he had to do is answer guilty or not guilty.
And then he seemed relieved and he said, 'Oh, okay, fine.'"
After being shown the foreperson's note, neither defense counsel voiced an objection to the manner in which the court addressed the juror's concern. Following the verdict, defense counsel requested that the jury be polled, and the foreperson stated that the verdict as to each defendant was his verdict. On appeal, both convictions were affirmed.
In Ochoa the Appellate Division rejected defendant's argument that the prosecutor's redirect examinations of Cruz and Ruballo constituted improper bolstering and further concluded, as to the foreperson's note, that counsel's failure to object or seek other relief from the court relative to the ex parte communication with the foreperson constituted a waiver of that argument (see People v Ochoa, 57 AD3d 342, 343-344 [1st Dept 2008]). One justice dissented and subsequently granted defendant leave to appeal to this Court.
In Figueroa, the Appellate Division addressed the juror note issue and held, as to the court's ex parte communication with the foreperson, that its action was ministerial and therefore neither defendant nor defense counsel had a right to be present, and, in any event, counsel "was required to request a further inquiry of the foreperson or otherwise preserve a claim of error" (People v Figueroa, 48 ...