Judges Rivera, Stein, Fahey and Wilson concur. Chief Judge DiFiore dissents in an opinion,In which Judges Garcia and Feinman concur in a separate dissenting opinion by Judge Garcia.
MEMORANDUM:The order of the Appellate Division should be affirmed.The trial court’s failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal (see People v. Mack, 27 NY3d 534, 538 [2016], rearg denied 28 NY3d 944 [2016]; People v. Nealon, 26 NY3d 152, 156-157 [2015]). “[M]eaningful notice ‘means notice of the actual specific content of the jurors’ request’” (Mack, 27 NY3d at 538, quoting People v. O’Rama, 78 NY2d 270, 277 [1991]). Although the record demonstrates that “defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel” (People v. Walston, 23 NY3d 986, 990 [2014]). We therefore reject the People’s argument that defense counsel’s awareness of the existence and the “gist” of the note satisfied the court’s meaningful notice obligation, or that preservation was required. “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note — as it is in this case — preservation is not required” (id.).Moreover, “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to” (id.). In other words, “[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v. Tabb, 13 NY3d 852, 853 [2009]). We again decline “to disavow our holding in Walston…that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O’Rama” (People v. Silva, 24 NY3d 294, 300 [2014], rearg denied 24 NY3d 1216 [2015]; see People v. Parker, — NY3d — [decided today]).The jury note marked as Court Exhibit 9, which is the only note at issue on this appeal, was not ministerial.1 Even assuming for the sake of argument that the jury was requesting instruction on whether to continue deliberating or to return the next morning — a request that would require only a ministerial response — the note also stated that the jury had reached a decision on counts two and three but had “a lot of work to do” on count one. A note that informs the court that the jury has reached a verdict on two counts but is struggling with another count is not a note that is “‘wholly unrelated to the substantive legal or factual issues of the trial’” (People v. Hameed, 88 NY2d 232, 241 [1996], quoting People v. Harris, 76 NY2d 810, 812 [1990]) of which the trial court had no obligation to provide meaningful notice to counsel (see People v. Wallace, 27 NY3d 1037, 1039 [2016]; Nealon, 26 NY3d at 161; People v. Ochoa, 14 NY3d 180, 188 [2010]). Counsel, upon receiving meaningful notice, may have requested a partial verdict or a modified Allen charge, which was the response the trial court ultimately provided to the jury.To the extent the People contend that the presence of media in the courtroom justified the trial court’s failure to provide counsel with meaningful notice, that argument is without merit. The O’Rama Court recognized that “special circumstances,” such as concern about sharing an individual juror’s note with the rest of the jury, might warrant departure from the O’Rama procedure, but the Court found it “difficult to imagine a situation in which a court would be justified in declining to show or read a juror’s note to counsel” (O’Rama, 78 NY2d at 278-279). If the trial court was concerned about media influence, it could have simply asked counsel to confirm on the record that they had read the note.“‘[T]hough it hardly needs restating, we underscore the desirability of adherence to the procedures outlined in O’Rama’” (Nealon, 26 NY3d at 163, quoting People v. Kisoon, 8 NY3d 129, 135 [2007]).
