People v. DeRosario

• Decision Date: 11 February 1993
• Citation: 81 N.Y.2d 801,595 N.Y.S.2d 372,611 N.E.2d 273
• Parties: , 611 N.E.2d 273 The PEOPLE of the State of New York, Respondent, v. Napoleon DeROSARIO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 372

595 N.Y.S.2d 372

81 N.Y.2d 801, 611 N.E.2d 273

The PEOPLE of the State of New York, Respondent, v. Napoleon DeROSARIO, Appellant.

Court of Appeals of New York.

Feb. 11, 1993.

[81 N.Y.2d 802] [611 N.E.2d 274] Barbara Zolot and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Christina Welykyj and Gregory H. Mansfield, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 179 A.D.2d 533, 580 N.Y.S.2d 218, should be reversed, and a new trial ordered.

Defendant was convicted, after a jury trial, of robbery in the first degree, criminal possession of a controlled substance in the second degree, criminal sale of a controlled substance in the third degree, and criminal possession of a weapon in the second degree. The charges stemmed from a narcotics buy-and-bust operation during which an undercover officer was held at gun point for 10 minutes. The Appellate Division affirmed the conviction. On the appeal to this Court, we reverse and order a new trial.

Several oral colloquies took place between the Trial Justice and the jury during deliberations. These occurred after the court had answered specific written inquiries from the jury with defense counsel's participation (see, CPL 310.30; People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189). The subsequent oral exchanges included substantive discussions regarding reasonable doubt and constructive and actual possession, matters not part of the original written queries from the jury. The manner in which these discussions were conducted did not allow defense counsel, who was present and objected to at least one of the substantive exchanges, to participate in the formulation of the responses.

As a threshold matter, we note that trial counsel for appellant joined in an objection made by counsel for a codefendant, after the colloquy which related to reasonable doubt. The court stated, "we're just going to go on with that". The issue now argued in this respect is thus sufficiently preserved for our review. We reject defendant's contention that no preservation is necessary (see, People v. O'Rama, supra, at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189). The situation in this case is clearly distinguishable from O'Rama with respect to preservation. That case arose out of a total deprivation to defense counsel of notice and an opportunity to participate meaningfully in the court's response to a jury's written inquiry. Here, defense counsel was present, was given notice, and participated in formulating the responses to the written jury queries. Thus, as to the written jury inquiries, the statute was satisfied. We conclude under these circumstances that traditional preservation rules are required (see, People v. Mezon, 80 N.Y.2d 155, 160-161, 589 N.Y.S.2d 838, 603 N.E.2d 943), and that they were satisfied on this record.

On the merits, therefore, CPL 310.30, as interpreted by People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, supra, requires that counsel be given meaningful notice of jury inquiries. An important purpose of the statute "is to ensure that counsel has the opportunity to be heard before the response is given" (id., at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 [emphasis in original]. The failure to give d...