People v. Heath

• Decision Date: 09 December 1996
• Citation: 651 N.Y.S.2d 551,234 A.D.2d 388
• Parties: The PEOPLE, etc., respondent, v. Terry HEATH, appellant.
• Court: New York Supreme Court — Appellate Division

Page 551

651 N.Y.S.2d 551

234 A.D.2d 388

The PEOPLE, etc., respondent, v. Terry HEATH, appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 9, 1996.

Daniel L. Greenberg, New York City (Robert S. Dean, of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Jeanette Lifschitz, Gary Sancilio, and Lisa R. Marlow Wolland, of counsel), for respondent.

Before ROSENBLATT, J.P., and PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giaccio, J.), rendered September 14, 1995, convicting him of robbery in the first degree, grand larceny in the fourth degree, unauthorized use of a motor vehicle in the third degree, criminal possession of stolen property in the fourth degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.

During the course of deliberations, the court received a note from the jury asking to "[p]lease give the elements to be considered in counts 1 and 2, for a guilty verdict". The defense counsel asked to see the note out of the presence of the jury and the court replied: "No * * * [t]he court doesn't need any assistance". The prosecutor noted that "I think there is a legal requirement * * * so he has an option to make any requests before the jury hears any response we have", and went on to state that withholding the note portended reversible error. Nevertheless, despite the urgings from both sides, the court refused to reveal the contents of the note, stating:

"I have already made my decision, I don't have to confer with counsel when I receive a note from the jury before I bring the jury back into the courtroom".

After the jury was seated in the courtroom with all parties present, the court read the contents of the note aloud and repeated those portions of the original charge dealing with the elements of robbery in the first degree and grand larceny in the fourth degree.

The court made its response to the jury before counsel could have any input with respect to that response. The supplemental instructions were obviously, and concededly "intended to have an effect on the deliberative process" (People v. O'Rama, 78 N.Y.2d 270, 280, 574 N.Y.S.2d 159, 579 N.E.2d 189), inasmuch as they dealt with the elements of the crimes. The...