How much of a jury's note must a trial court disclose to counsel?

The Court of Appeals recently addressed this issue in its decision in People v. Kadarko (4/6/2010) (Pigott, J.).  The case arose from a prosecution involving multiple robberies.  While the jury was deliberating, it sent multiple notes to the court indicating that it was divided by various ratios as to whether the defendant committed the robberies.  The court explained the note's contents to counsel, but withheld the vote breakdowns and how the majority voted; however, the court did inform counsel that there were three different ratios in the vote breakdowns.  While neither the defense nor prosecution objected to the court's watered-down presentation of the note's contents, defense counsel did move for a mistrial, arguing only that the jury was unable to come to a verdict. The court denied the mistrial motion and gave another Allen charge.  Again, neither the People nor the defendant objected.  However, the court did show both the People and the defendant the entire note after the Allen charge.  Again, neither party objected to the court's actions.  The jury ended up convicting the defendant on one of the robbery counts, but "remained divided" on the other counts.  The court declared a mistrial regarding the counts on which the jury was hung.

On appeal, the defendant argued that the trial court "committed a mode of proceedings error" by not informing trial counsel of the vote breakdowns before the Allen charge was given.  The First Department agreed with the defendant and reversed his conviction.  However, one justice of that court dissented and argued that there could be no mode of proceedings error where a single "slip" of the court "prompted no objection[.]"

On leave to the Court of Appeals, the Court briefly examined People v. O'Rama, 78 N.Y.2d 270 (1991) and its progeny.  From the cases examined, the Court articulated that both a trial court and defense counsel have responsibilities when the trial court receives a note from the jury.  From O'Rama and People v. Kisoon, 8 N.Y.3d 129 (2007), the Court noted that trial courts must (1) verbally provide counsel with "notice of the actual specific contents of the . . . note[,]" and (2) provide a "meaningful response" to the note.  From People v. Starling, 85 N.Y.2d 509 (1995), the Court noted that, once defense counsel has "notice of the contents of a jury note and . . . knowledge of the substance of the court's intended response," the lawyer "must object to preserve the claim for appellate review." 

Applying these rules to the record, the Court held:

In the present case, unlike in O'Rama and Kisoon, the error does not amount to a failure to provide counsel with meaningful notice of the contents of the jury note or an opportunity to respond. Here, the judge informed counsel of the contents of the note and that he was specifically withholding the numbers from counsel until after the jury had retired to resume deliberations. Defense counsel voiced no objection to this procedure either before or after the entire contents of the note were revealed by the judge. Although the court's decision not to read the entire note until after the jury had resumed deliberations may have been error, it was not a mode of proceedings error and the court later corrected itself, without objection or request for further instruction by either party.

Accordingly, the Court reversed the order of the First Department.  (JTR/LC)