
    The People of the State of New York, Respondent, v Lemuel Lykes, Appellant.
    Argued November 19, 1992;
    decided January 12, 1993
    
      APPEARANCES OF COUNSEL
    
      Kristin M. Preve, Buffalo, Barbara J. Davies and Linda S. Reynolds for appellant.
    
      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Roger W. Wilcox, Jr., and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of sexual abuse in the first degree and endangering the welfare of a child stemming from the molestation of a five-year-old boy. During deliberations, the Trial Judge received a note from the jury stating, "Legal Terminology about Charges brought against defendant on all three accounts.” Without notifying defendant, defense counsel or the prosecutor, the Judge sent a note to the jury asking:

"Do you wish the legal definition of each crime charged?
"or
"Do you wish the elements repeated?
"or
"Something else?”

The jury responded with a note stating, "We wish the legal definition of each crime charged.” The notes exchanged between the Judge and the jury were then marked as court exhibits and the jury was brought back into the courtroom. In the presence of defendant and counsel, the Judge read the last note into the record and proceeded to charge the jury with respect to the legal definitions of the crimes charged. Defendant took no exception to the charge itself or to the procedure employed by the court.

We agree with the Appellate Division that the clarification sought by the Trial Judge without prior notification to counsel did not constitute reversible error. Under CPL 310.30, upon a jury’s request for reinstruction or information, "the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” Section 310.30 does not require notice to defendant in every instance of communication from the jury to the court (see, People v O’Rama, 78 NY2d 270). In People v O’Rama (supra) we held that when an inquiry is received from the jury, "meaningful notice” to counsel must be provided so that defendant’s interests may be advocated in formulating a response (id., at 277-278). In most instances, that requirement is best served by requiring that all written jury requests be read into evidence in the presence of defendant and counsel so that counsel may be afforded an opportunity to participate in the framing of an appropriate response (id.; see also, United States v Ronder, 639 F2d 931). The point of our decision in O’Rama, however, was "not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response” (78 NY2d, at 278, supra).

In the instant case, defendant and counsel were clearly afforded meaningful notice of the jury’s request prior to the time the Judge gave the jury any information or instruction. The Judge’s initial note was simply a request for clarification as to what the jury wanted. It conveyed no information pertaining to the law or facts of the case, and did not limit or channel the jury’s question, explicitly leaving open the possibility that the jury wanted "something else.” It did not purport to be a response contemplated and governed by the statute. Defense counsel had an opportunity to participate after the clarification was received from the jury and before the court gave the reinstruction as to the legal definitions of the crimes charged. We therefore conclude that, in the circumstances presented, the requirements of CPL 310.30 were not violated.

Titone, J.

(dissenting). In People v O’Rama (78 NY2d 270), this Court held that when the jurors request information or supplementary instruction pursuant to CPL 310.30, defense counsel must be given meaningful notice, a term that implies such notification as will afford counsel the opportunity to "participate effectively” and to "adequately protect the defendant’s rights” (see, id., at 277). We also held that the procedure outlined in United States v Ronder (639 F2d 931) should be followed except in "special circumstances” where those procedures might need to be "modified or tailored to ensure the integrity of the deliberative process” (People v O’Rama, supra, at 278 [emphasis supplied]). Thus, although some flexibility was contemplated, our ruling made clear that any modifications to the prescribed procedures must be designed to ensure "maximfum] participation by counsel at a time when counsel’s input is most meaningful” (People v O’Rama, supra, at 278).

In this case, the trial court’s failure to notify defense counsel of the jurors’ inquiry before seeking "clarification” deprived counsel of all opportunity to participate in the formulation of the court’s response. Although the court’s response was a request for "clarification” rather than a formal supplementary instruction, the need for counsel’s advance participation was no less critical. While the court may have felt that its open-ended query covered all of the possible permutations suggested by the jury’s ambiguous question, it is also reasonably likely that counsel, with his unique perspective and intimate knowledge of the defense’s case, could have discerned additional nuances and proposed another way of framing the query to elicit a more tailored juror response.

For example, mindful that his client was charged with offenses involving varying degrees of severity and that the jurors may have been weighing which offenses to use as a basis for conviction, counsel might well have suggested that the jurors also be asked whether they were specifically interested in the differences between the elements of the various charged crimes. Alternatively, counsel might have proposed that the jurors be asked whether there was a particular legal term or crime element that needed further definition. While the trial court undoubtedly has considerable discretion in deciding whether to honor such requests (see generally, People v Malloy, 55 NY2d 296), that fact does not detract from the defendant’s right to have his attorney participate, or at least be afforded the opportunity to participate, in the proceeding (People v O’Rama, supra).

Furthermore, counsel’s exclusion from this aspect of the postsubmissions proceedings was not a trivial or insignificant deprivation of the right to participation by counsel (cf., People v Agosto, 73 NY2d 963). The manner in which a "clarifying” question to the jurors is framed will inevitably affect the terms in which the jurors, who are unschooled in legal idiom, will rephrase their inquiry. Thus, "clarifying” colloquies can have a tangible impact on the critical proceedings that ensue, particularly the focus of the supplementary instructions that are given in response. Accordingly, counsel’s exclusion from these colloquies represents a serious impairment of the defendant’s rights — an impairment that cannot be remedied by affording counsel the opportunity to comment on the substantive instructions that are ultimately given.

Because counsel’s input at this stage of the proceeding could well have a meaningful impact on the remainder of the deliberative process in these circumstances, a judicial decision to seek "clarification” from the jurors without first notifying counsel was an "inherently prejudicial” misuse of the trial court’s discretion (see, People v O’Rama, supra, at 280). Since the majority’s decision to affirm lends unwarranted sanction to this undesirable practice, I must, respectfully, dissent.

Acting Chief Judge Simons and Judges Kaye, Hancock, Jr., Bellacosa and Smith concur; Judge Titone dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.  