Opinion
February 9, 1976
Appeal by the People from an order of the County Court, Suffolk County, dated May 28, 1975, which, after a hearing, granted defendant's motion pursuant to CPL 330.30 (subd 2) to set aside a jury verdict of guilty of grand larceny in the second degree (Penal Law, § 155.35). Order affirmed. At the end of the trial it became necessary to sequester the jury overnight. The clerk of the trial court reconvened the jury prior to 9:30 A.M. the next morning, contrary to the court's instructions. The jury, at the beginning of its deliverations, requested a rereading of the charge concerning "reasonable doubt", in a note to the Trial Judge. The clerk, again contrary to instructions, opened the note and permitted the jury to continue its deliberations until its request could be satisfied. Approximately 15 minutes later, the jury sent a second note, this time informing the court that it had reached a verdict and no longer desired a rereading of the "reasonable doubt" charge. The guilty verdict which followed was rendered without the judge or counsel being informed of the existence of either note. The failure to comply with the jury's initial request, although inadvertent, was prejudicial to defendant's substantial rights. It was not an abuse of discretion to set aside the verdict pursuant to CPL 330.30 (subd 2) (see People v Ochs, 9 A.D.2d 792). Martuscello, Acting P.J., Latham, Margett, Damiani and Christ, JJ., concur.