People v. Anderson

"[A] defendant's absence during nonministerial instructions [to a deliberating jury], in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for [this Court's] review â​​ even absent an objection or where defense counsel has consented to the procedures used" (id.; see People v Collins, 99 NY2d 14, 17 [2002]; People v Cain, 76 NY2d 119, 124 [1990]; People v Harris, 76 NY2d at 812 n; People v Mehmedi, 69 NY2d 759, 760 [1987]). In such a scenario, reversal is mandated "regardless of whether any actual prejudice or harm is shown"

(People v Cain, 76 NY2d at 121). However, when a "communication is ministerial and therefore does not fall within the ambit of a supplemental jury instruction," defendant's presence is not required (People v Rivera, 23 NY3d at 832; see People v Collins, 99 NY2d at 17-18; People v Harris, 76 NY2d at 812). Accordingly, the dispositive inquiry is whether County Court's discussion with the juror in this case constituted a ministerial or nonministerial communication. When charging the jury prior to the commencement of deliberations, County Court provided specific instructions on a variety of issues, including as it pertained to the manner in which jurors were required to deliberate. The court largely parroted the language of the model colloquy in that regard, stating that each juror "ha[d] a duty to consult with one another and to deliberate in an orderly and dispassionate manner with a respect for each person's point of view and a view to reaching an agreement, if it can be done, without violence to individual judgment," and "must decide this case for him or herself, but only after an impartial consideration of the evidence" (see https://www.nycourts.gov/judges/cji/1- General/CJI2d.Deliberations.pdf). The court further instructed that[*3]"no[ ] juror should surrender his or her honest convictions as to the weight or effect of the evidence solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict" and that, during the course of deliberations, "a juror should not hesitate to reexamine his or her own views and change a held opinion if convinced it is erroneous." The court also explained the process of submitting a note if the jurors had a question or needed more information during the course of their deliberations.

On the fifth day of deliberations, the trial judge placed on the record that he had received a note from one of the jurors asking to speak with him and that, "with the consent of the attorneys," he engaged in an off-the-record discussion with the juror in his chambers. Although the discussion was not transcribed, the trial judge explained that the juror had vented her frustration about the manner in which another juror was deliberating with her, revealing that "she was taking her role as a juror seriously" and that she was "being confronted" by another juror "when she voiced an opinion on issues" and "ask[ed] specific questions." In response, the trial judge informed the juror that she "ha[d] a right to ask questions, and [the other jurors] ha[d] an obligation to deliberate with her and to respond to her in a civil manner." The trial judge further revealed that, during the discussion with this juror, he "substantially reviewed with her the instructions that [he had given] to all the jurors regarding the requirement of meaningful and in-good-faith deliberations." After the trial judge placed such exchange on the record, defendant's counsel revealed that he was contemplating requesting that the court charge the entire jury on civility. However, he ultimately declined to do so. On this record, we disagree with the People's ^FN1 assertion that County Court's off-the-record discussion with the juror was ministerial in nature. Although the juror's note was ambiguous and the discussion in chambers was not transcribed â​​ making it impossible to know the precise nature of the conversation â​​ County Court revealed that it had "substantially reviewed" with the juror the instructions it had previously provided to the entire jury panel regarding meaningful and good faith deliberations. As noted by the Court of Appeals, " 'there are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury's request for clarification of the law or further guidance on the process of deliberations'" (People v Kisoon, 8 NY3d 129, 134-135 [2007] [brackets omitted & emphasis added], quoting People v Kisoon, 23 AD3d 18, 20 [2d Dept 2005], affd 8 NY3d 129 [2007]). Under the circumstances presented, we conclude that the court's conversation with the juror â​​ which included providing a substantive instruction on the jurors' obligations during the deliberative process â​​ was not ministerial in nature, violated defendant's [*4]right to be present at all material stages of the trial and constituted a mode of proceedings error (see People v Rivera, 23 NY3d at 832; People v Ciaccio, 47 NY2d 431, 436-437 [1979]; People v Kluge, 180 AD3d 705, 711 [2d Dept 2020]; compare People v Williams, 21 NY3d 932, 935 [2013]; People v Mays, 20 NY3d 969, 971 [2012]; People v Collins, 99 NY2d at 17- 19; People v Hameed, 88 NY2d 232, 240-241 [1996], cert denied 519 US 1065 [1997]; People v Harris, 76 NY2d at 812). Accordingly, defense counsel's failure to raise an objection is of no moment and defendant is entitled to a new trial (see People v Rivera, 23 NY3d at 833; People v Kluge, 180 AD3d at 712).

Ceresia, McShan, Powers and Ryba, JJ., concur.