holding that an "absence of record proof constituted "a mode of proceedings error . . . requiring reversal"Summary of this case from Munoz v. Burge
No. 213 SSM 47.
Decided November 24, 2009.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered February 6, 2009. The Appellate Division affirmed a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), which had convicted defendant, upon a jury verdict, of assault on a peace officer, police officer, fireman or emergency medical services professional and assault in the second degree.
People v. Tabb, 59 AD3d 1080, reversed.
Legal Aid Bureau of Buffalo, Inc., Buffalo ( Robert B. Hallborg, Jr., David C. Schopp and Barbara J. Davies of counsel), for appellant.
Frank A. Sedita, III, District Attorney, Buffalo ( Raymond C. Herman of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be reversed and a new trial ordered.
During deliberations, the jury sent a note to the trial court that asked for direction on, or an explanation of, "the legal definition of self defense." Nothing in the record indicates that the court informed defense counsel and the prosecutor about the contents of the note. In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal ( see e.g. People v. Kisoon, 8 NY3d 129, 135; People v. O'Rama, 78 NY2d 270, 277).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.