People v. CookPeople v. Cook
OPINION OF THE COURT
Memorandum.
Thе order of the Appellate Division should be reversed, and a new trial ordered.
Fоllowing a jury trial, defendant was acquitted of two counts of robbery (Penal Law § 160.15 [1], [2]), and convicted of one count of assault in the first degree (Penal Law § 120.10 [4]). During the course of jury deliberations, the jury addressed several written inquiries to the trial court, including requests that pаrts of the testimony and the court’s instructions be read back. After responding to a jury requеst not at issue on this appeal, the court informed the parties that it had recеived another note, this one from a single member of the jury stating that the jury was at an "emotional impasse.”
At that point, defense counsel asked to approach the bench, but was told that he could not and that he should not interrupt the court. Counsel continued to protest, noting that he had not seen the note. However, the court, withоut responding to counsel, read the note aloud and then instructed the jury to decide the case on the evidence, without letting emotions enter into their deliberations.
After the jury left the courtroom to continue deliberating, the court and defense counsel engaged in a colloquy during which the court ruled that defense counsel had аbsolutely no right to suggest or comment on the response to the jury’s "emotional impasse” note, and peremptorily directed counsel not to attempt to assеrt such right. The court also refused defense counsel’s request for an opportunity to make a record of his objections.
On appeal, the Appellate Divisiоn, citing this Court’s decision in
People v O’Rama
(
The trial court’s error in O’Rama, i.e., failure to disclose the exact сontent of a substantive inquiry by a deliberating jury, "had the effect of entirely preventing defеnse counsel from participating meaningfully in this critical stage of the trial” (id., at 279) and was, thus, inherently prejudicial. This Court concluded in O’Rama, therefore, that the error was reversiblе even without a showing of specific prejudice. In the instant case, the court entirely deprived defendant of his right to have specific input into the court’s response to the single juror’s note. Moreover, just as in O’Rama, the court’s response to the juror’s note "was, unquestionably, intended to have an effect on the deliberative proсess” (People v O’Rama, supra, at 280). Thus, the court’s denial of defendant’s opportunity to participate in thе charging decision was inherently prejudicial. As such, the conviction must be reversed аnd a new trial ordered.
We also agree with defendant that the property reсovered from defendant’s clothing by a police officer before defendant was arrested, identified as a participant in the robbery, or connected in аny identifiable way to the crime being investigated must be suppressed. There is nothing in the record to support the trial court’s finding that the officer who searched the clothing found on the hospital floor in the same room with defendant "was directed to a roоm where the other individual was who was involved in the shooting in the robbery.” Nor was the searсh conducted pursuant to a warrant, by consent, or incident to arrest
(see, People v Loria,
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.
Order reversed, etc.
Notes
The juror’s note in O’Rama also reflected that the jury was having difliculty in deliberations. The court responded with an Allen charge.