The People v. Iquan Wiggs

Oct 20, 2016
219 SSM 30
Versions:28 N.Y.3d 987
63 N.E.3d 1132
41 N.Y.S.3d 188
2016 NY Slip Op 06860

Cons Laws of NY, Book 7B, CPLR C4518:4A at 454-455 [2007 ed]).

Contrary to defendant‘s further contention, County Court properly held that the record of simulator solution testing and the records pertaining to the maintenance and calibration of the breath test instrument were admissible based upon the attached state agency certifications, and County Court did not err in disregarding the inaccurate certifications submitted by the Oneida County Sheriff‘s Office with respect to those records. The trial court also relied upon the state agency certifications when admitting the documents into evidence, and therefore County Court did not violate CPL 470.15 (1) in concluding that the records were admissible based on those certifications (see People v Nicholson, 26 NY3d 813, 825 [2016]). Finally, we reject defendant‘s contention that the state agency certifications attached to the records of maintenance and calibration of the breath test instrument did not comply with CPLR 4518 (c).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, in a memorandum.

APPEARANCES OF COUNSEL

Richard A. Brown, District Attorney, Kew Gardens (Deborah E. Wassel of counsel), for appellant.

Lynn W.L. Fahey, Appellate Advocates, New York City (David P. Greenberg of counsel), for respondent.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.

Where the trial court “has read the precise content of the [jury] note into the record in the presence of counsel, defendant, and the jury,” the trial court has “complied with its core responsibility to give counsel meaningful notice of the jury‘s notes,” and “the court‘s failure to discuss the note with counsel before recalling the jury is not a mode of proceedings error” (People v Nealon, 26 NY3d 152, 160-162 [2015]). Furthermore,

“where counsel has meaningful notice of the content of a jury note and of the trial court‘s response, or lack thereof, to that note, the court‘s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review” (People v Mack, 27 NY3d 534, 537 [2016], rearg denied 28 NY3d 944 [2016]).

Here, the trial court complied with its responsibility to provide counsel with meaningful notice of the jury‘s notes by reading the notes verbatim into the record in the presence of counsel, defendant, and the jury (see Nealon, 26 NY3d at 160-162). Inasmuch as counsel had meaningful notice of the jury notes, the trial court‘s failure to provide a response to the jury‘s outstanding request for a readback of testimony before accepting the verdict does not constitute a mode of proceedings error (see Mack, 27 NY3d at 537). Counsel was required to object to preserve any claim of error for this Court‘s review. “Although the court‘s procedure here may have been error, it was not a mode of proceedings error, and we have no jurisdiction to review it” (id. at 544).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that Court, in a memorandum.