This opinion is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be reversed and a new trial ordered.
Defendant was charged with two counts of Assault in the First Degree for allegedly stabbing two men during a brawl outside a bar. At trial, defendant interposed the defense of misidentification. During deliberations, the jury submitted a note requesting to see the written statement prepared by a police officer and signed by defendant in which he made certain admissions. Although the exhibit was ostensibly only to be used to refresh the police officer's recollection, Supreme Court received and marked this exhibit in evidence over the objection of defense counsel. Later, Supreme Court, outside the presence of the jury, reversed its ruling and determined that this written statement was not evidence, re-marking it as a court exhibit. Supreme Court failed to instruct the jury accordingly, however. The jury retired to deliberate and first requested certain exhibits that had been marked in evidence, which were provided.*fn1
Later, the jury requested to see the written statement signed by defendant, which it also believed was in evidence. Nothing in the record suggests that the judge received the jury note or discussed its contents with the parties.
Defendant appealed from the judgment convicting him of two counts of first degree assault citing a violation of CPL 310.30 and People v O'Rama (78 NY2d 270 ). The Appellate Division initially reserved decision on defendant's appeal and remitted the case to Supreme Court for a reconstruction hearing to determine "whether there was a jury note and, if so, what action was taken with regard to the jury note" (People v Cruz, 42 AD3d 901 [4th Dept 2007] [internal quotation marks, modifications and citations omitted]).
At the reconstruction hearing, the trial judge stated that he had no independent recollection of receiving the particular jury note at issue. He discussed his standard practice with the parties and noted that he generally allows juries to review exhibits admitted in evidence upon their request without reconvening, provided that the parties are in agreement as they were here. Significantly, he stated that, had he been told that the jury in this case requested a court exhibit not in evidence, he would have reconvened the proceeding in the presence of defendant. The Appellate Division, applying the presumption of regularity, affirmed the judgment (People v Cruz, 57 AD3d 1453 [4th Dept 2008]).
Typically, "a presumption of regularity attaches to judicial proceedings" (People v Velasquez, 1 NY3d 44, 48 ; see also People v Harrison, 85 NY2d 794, 796 ). Here, the Appellate Division erred in holding that the presumption had not been overcome. The record shows that there was a significant, unexplained irregularity in the proceedings in that defendant established that the jury requested an exhibit not in evidence; it was reasonable for the jury to believe the exhibit to be in evidence, since it heard the trial court receive the item, but was not privy to the court's subsequent reversal of that ruling; and the request was never brought to the judge's attention.
Thus, there is no basis in the record to conclude that the jury was informed by anyone that the item was not in evidence, and the jury may have received the exhibit in error.
We conclude that defendant met his burden of rebutting the presumption of regularity by substantial evidence. That evidence includes the trial judge's statement at the reconstruction hearing that he never saw the note, that he did not reconvene with counsel, and that he did not know if the exhibit was ever shown to the jury. Nor can we agree with the Appellate Division's determination that, even if the jury received this unadmitted exhibit in error, such error was harmless, since the exhibit contradicted defendant's misidentification defense at trial (cf. People v Bouton, 50 NY2d 130, 137 ).
We need not reach defendant's remaining arguments.
LIPPMAN, Chief Judge (concurring)
At trial, each of the two assault victims gave testimony to the effect that defendant stabbed him outside a "little bar" in Rochester on the night of February 2, 2003. In addition, the arresting officer testified that upon arriving at the scene he observed defendant with a knife in his hand. Defendant and his father, on the other hand, testified that defendant had been misidentified --- that a fight had broken out inside the bar and that defendant, his father and his uncle were attempting to extricate themselves and leave the scene when the police arrived. Defendant denied possessing a knife or stabbing anyone on the occasion charged.
After his arrest, defendant gave a statement to a police officer. The statement, as transcribed by the officer, included the phrase, "I took the knife from him and started kicking his ass." Defendant disputed whether he had, in fact, said this and in pretrial proceedings it was stipulated, in lieu of a Huntley hearing, that the statement could be used to impeach defendant but would not be admissible for the truth of the matter asserted on the People's case. Defendant was confronted with the above-quoted portion of his statement on cross-examination and immediately afterward the prosecutor requested that the entire statement, which had been marked for identification as exhibit 28, be admitted in evidence for the jury's examination. The court, over defendant's objection and in the presence of the jury, purported to accede to this request. Subsequently, after defendant's re-direct testimony and out of the jury's presence, the court said it had been mistaken and that it had not intended to receive exhibit 28 as evidence. Although the exhibit was, accordingly, not received, the jury was not advised that the evidentiary ruling announced in its presence had been countermanded.
On the People's rebuttal case, the police officer who had taken defendant's statement testified, and in connection with his testimony the prosecutor again sought admission of the statement. The court responded "At the present time I will receive it only as a Court ...