People v. Dupleasis

• Decision Date: 30 December 2010
• Citation: 913 N.Y.S.2d 636,79 A.D.3d 1777
• Parties: The PEOPLE of the State of New York, Respondent, v. Hillery M. DUPLEASIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 636 79 A.D.3d 1777 The PEOPLE of the State of New York, Respondent, v. Hillery M. DUPLEASIS, Defendant-Appellant. Supreme Court, Appellate Division, Fourth Department, New York. Dec. 30, 2010.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered January 7, 2009. 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).

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for defendant-appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [3] ). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990). "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, 78 A.D.3d 1518, 910 N.Y.S.2d 784, quotingPeople v. O'Rama, 78 N.Y.2d 270, 277-278, 574 N.Y.S.2d 159, 579 N.E.2d 189), 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 A.D.3d 1708, 1710, 881 N.Y.S.2d 577, lv. denied 13 N.Y.3d 747, 886 N.Y.S.2d 101, 914 N.E.2d 1019).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new...