Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered January 7, 2009.
Appellate Division, Fourth 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 December 30, 2010
PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ.
The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree, burglary in the first degree (two counts) and robbery in the first degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts two through seven of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). We agree with defendant, however, that reversal is required because Supreme Court failed to comply with CPL 310.30 during jury deliberations. Indeed, the court failed to fulfill its "core responsibility under the statute" in responding to a note from the jury at that time (People v Kisson, 8 NY3d 129, 134). "It is well settled that a substantive written jury communication . . . should be . . . read into the record in the presence of counsel' before the jury is summoned to the courtroom in response thereto" (People v Piccione, ___ AD3d ___, ___ [Nov. 12, 2010], quoting People v O'Rama, 78 NY2d 270, 277-278), and here the court responded to the jury's note in writing without providing notice thereof to the prosecutor or defense counsel. In light of our decision, we do not address defendant's remaining contentions except to note that, in view of the date on which the crimes were committed, the court erred in imposing the DNA databank fee (see People v McCullen, 63 AD3d 1708, 1710, lv denied 13 NY3d 747).
Entered: December 30, 2010
Patricia L. Morgan Clerk of the Court
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