New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

-Notes From The Jury During Deliberations


People v. Kadarko , New York Court of Appeals, Decided April 6, 2010

2010 NY Slip Op 02834

Notes from the jury during deliberations: does the trial court have to tell all that is in the jury’s note?

Issue : Whether the trial court erred when it did not reveal the entire contents of a jury note to defense counsel, specifically the jury’s numerical breakdown of how they were voting.

Held : No, the trial court did not commit reversible error when it did not reveal the entire contents of the jury’s note to the court. The Court’s duty when it receives a note from the jury are (1) to notify counsel about the note, and (2) the court must provide a meaningful response. The court’s failure to disclose the specific contents of the note was not a mode of proceedings error.

Facts : During the course of jury deliberations the jury sent several notes to the court. One of the notes stated: “Are still divided as follows regarding alleged robberies on: 7/14/04 – 8 to 4, 7/26/04 – 11 to 1, 7/20/04 – 10 to 2, 8/3/04 – 11 to 1, 8/9/04 – 11 to 1.

The trial court explained the note to both counsel, but believed it inappropriate to show the numerical breakdown of the votes. Neither prosecutor nor defense counsel objected to the court withholding the specific numbers.

The Court of Appeals referred to People v. O’Rama , 78 N.Y.2d 270 (1991) where they held that CPL §310.30 imposes two distinct duties on the court that receives a note from the jury: first, a duty to notify counsel about the note, and second, a duty to provide a meaningful response. Meaningful notice was defined as notice of the actual specific contents of the juror’s note. The failure to disclose the specific contents of the not had the effect of entirely preventing defense counsel from participating meaningfully in a critical stage of the trial and thus represented a significant departure from the organization of the court of the mode of proceedings prescribed by law.

In People v. Kisson , 8 N.Y.3d 129 (2007) where the court failed to read the note aloud and simply responded to the note on its own, we found that failure to have deprived counsel of an opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response and that failure is inherently prejudicial.

The Court of Appeals found in this case that specifically withholding the numbers from counsel until after the jury had retired to resume deliberations, where defense voiced no objection, may have been error, but it was not a mode of proceedings error and the court later corrected itself without objection or request for further instruction.