People v. Kadarko, 14 N.Y.3d 426 (2010)
To preserve a claim of error relating to the disclosure of a jury note, defense counsel must object to the procedure employed by the trial court after being given notice of the contents of the note and knowledge of the court’s intended response.
Summary
Kadarko was convicted of robbery. During jury deliberations, the jury sent a note indicating their division on each of the alleged robberies. The trial judge informed counsel of the note’s contents but withheld the specific numerical breakdown until after giving an Allen charge. Defense counsel did not object to this procedure. The Appellate Division reversed, finding a mode of proceedings error. The Court of Appeals reversed, holding that while the trial court’s initial withholding of the numerical breakdown may have been error, it was not a mode of proceedings error because the court later corrected itself, and defense counsel failed to object.
Facts
Kadarko was indicted for robbing food deliverymen on five occasions. During deliberations, the jury sent a note to the court indicating their division on each robbery charge.
Procedural History
The trial court informed counsel of the contents of the jury note but withheld the specific numerical breakdown. Defense counsel moved for a mistrial, which was denied. After giving an Allen charge, the court showed counsel the complete note. The jury convicted Kadarko on one count, leading to a mistrial on the remaining counts. The Appellate Division reversed the conviction, finding a mode of proceedings error. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.
Issue(s)
Whether the trial judge committed a mode of proceedings error when he initially failed to inform counsel of the verbatim contents of the jury’s note, including the numerical divisions, and whether the defendant preserved the error for appeal.
Holding
No, because the judge informed counsel of the note’s contents, defense counsel voiced no objection to the procedure, and the court later corrected itself by revealing the entire note without objection. The error, if any, was not preserved for appellate review.
Court’s Reasoning
The Court of Appeals distinguished this case from People v. O’Rama and People v. Kisoon, where the trial courts completely failed to provide counsel with meaningful notice of the jury’s note or an opportunity to respond. Here, the trial judge informed counsel of the contents of the note and the decision to withhold the numbers temporarily. The court emphasized that defense counsel failed to object to the procedure before or after the entire note was revealed. The Court cited People v. Starling, noting that when defense counsel is given notice of the contents of a jury note and knows the substance of the court’s intended response, counsel must object to preserve the claim for appellate review. The Court stated that while the initial withholding of information “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.” The failure to object constituted a failure to preserve the issue for appeal.