Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Emil Bricker of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, SHERI S. ROMAN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 9, 2010, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
A new trial is required due to the trial court's failure to meaningfully comply with CPL 310.10. During deliberations, the jury sent four notes to the trial court. The record reflects that, on the fourth occasion, the court did not disclose the contents of the note to the prosecutor and defense counsel until serially reading, and immediately responding to, the questions contained therein in the presence of the jury. All three of the questions in this note concerned the subject of accomplice liability.
The jury's requests for further explanation of the meaning of accomplice liability within the context of this case required a "substantive response" (People v Lockley, 84 A.D.3d 836, 839; see People v McGhee, 103 A.D.3d 667, 668; People v Stocks, 101 A.D.3d 1049, 1051), rather than a merely "ministerial" one (People v Lockley, 84 A.D.3d at 839; see People v Brown, 106 A.D.3d 755, 756; People v Alcide, 95 A.D.3d 897, 898, affd _____ N.Y.3d _____, 2013 NY Slip Op 06598 ; People v Bryant, 82 A.D.3d 1114). As such, the trial court's failure to afford defense counsel "the opportunity to provide suggestions" (People v Lockley, 84 A.D.3d at 839) regarding the court's responses to the jury's questions constituted "a mode of proceedings error... requiring reversal" (People v Tabb, 13 N.Y.3d 852, 853), despite defense counsel's failure to object to the trial court's handling of the jury's fourth note (see People v McGhee, 103 A.D.3d at 668).
In light of our determination, the defendant's remaining contentions have been rendered academic (see People v Nazarino, 100 A.D.3d 783, 785; Peo ...