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Bruce R. Bryan

Judgment Reversed, New Trial Ordered

The People of the State of New York, respondent, 

v

Timothy Howell, appellant.

Lynn W. L. Fahey, New York, NY (A.Alexander Donn of counsel,) for appellant

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.), rendered December 16, 2009, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered on the second and third counts of the indictment.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

However, a new trial is required in light of the Supreme Court’s failure to comply with CPL 310.30 (see generally People v O’Rama, 78 NY2d 270). Specifically, the court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. As the People correctly concede, the court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from the preservation requirements and requires reversal (see People v Tabb, 13 NY3d 852, 853; People v Powell, 101 AD3d 756, 758-759;People v Curry, 101 AD3d 743, 745; People v Surpris, 83 AD3d 742, 744). Accordingly, the judgment must be reversed, and a new trial ordered on the second and third counts of the indictment, charging the defendant with criminal possession of a weapon in the second degree and reckless endangerment in the first degree.

In light of our determination, we need not reach the defendant’s remaining contention.
MASTRO, J.P., LEVENTHAL, SGROI and COHEN, JJ., concur.

B. Bryan, "Defendant's Guide to Criminal Appeals, Review & Parole in New York," (2005)


Guide to Criminal Appeals, Review & Parole in New York | Bryan Criminal Appeals Lawyer NY

The object of appellate advocacy is to persuade. The winning advocate focuses the court on the strength of your case. Read More

Cornell Adjunct Professor of Law


Guide to Criminal Appeals, Review & Parole in New York | Bryan Criminal Appeals Lawyer NY

As an adjunct faculty, Professor Bryan teaches "Advanced Persuasive Writing and Appellate Advocacy" to second and third year law students at Cornell Law School. Read More