People v. Moyler

• Decision Date: 15 November 1995
• Citation: 221 A.D.2d 943,634 N.Y.S.2d 593
• Parties: PEOPLE of the State of New York, Respondent, v. Damon MOYLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 593

634 N.Y.S.2d 593

221 A.D.2d 943

PEOPLE of the State of New York, Respondent, v. Damon MOYLER, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 15, 1995.

Richard H. Speranza, Lockport, for Appellant.

Matthew J. Murphy, III, Lockport, for Respondent.

Before DENMAN, P.J., and LAWTON, WESLEY, DOERR and BALIO, JJ.

MEMORANDUM:

On appeal from a judgment convicting him of manslaughter in the first degree, defendant contends, inter alia, that County Court improperly delegated a judicial function in allowing a court employee to instruct the jury, out of defendant's presence, to continue deliberating, thereby depriving defendant of his right to be present at a critical stage of trial. We agree and therefore reverse defendant's conviction.

CPL 310.30 provides that, upon a jury request for further instruction or information, "the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper." It is well settled that the trial court's response to the jury's request for further instruction or information is a critical stage of trial at which defendant has a right to be present (see, People v. Torres, 72 N.Y.2d 1007, 1008-1009, 534 N.Y.S.2d 914, 531 N.E.2d 635; People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610, rearg. denied 69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363; People v. Ciaccio, 47 N.Y.2d 431, 436-437, 418 N.Y.S.2d 371, 391 N.E.2d 1347). Further, the court may not delegate the responsibility of communicating with the jury to non-judicial personnel, and generally may not communicate with the jury through a non-judicial intermediary (see, CPL 310.30; People v. Torres, supra; People v. Mehmedi, supra; People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894, rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558; People v. Ciaccio, supra; People v. Bonilla, 186 A.D.2d 748, 589 N.Y.S.2d 61). A violation of that rule cannot be waived or consented to by defendant, presents a reviewable question of law even in the absence of objection, and is not amenable to harmless error analysis (see, People v. Cain, 76 N.Y.2d 119, 121, 124, 556 N.Y.S.2d 848, 556 N.E.2d 141; People v. Mehmedi, supra; People v. Nichols, 163 A.D.2d 904, 905, 558 N.Y.S.2d 772; People v. Jones, 159 A.D.2d 644, 645, 553 N.Y.S.2d 37, lv. denied 76 N.Y.2d 790, 894, 559 N.Y.S.2d 995, 559 N.E.2d 689, 76 N.Y.2d 894, 561 N.Y.S.2d 556, 562 N.E.2d 881).

Here, even in the absence of objection by defendant, the court committed reversible error in responding to the jurors' note concerning a possible hung jury by giving a court employee a note instructing the jury to continue deliberating (see, People v. Torres, supra; People v. Bonilla, supra ). An instruction to continue deliberations is not a mere "ministerial" matter concerning which a non-judicial employee might be permitted to...