People v. McKay

Appellate Division of the Supreme Court of New York

People v. McKay

214 A.D.2d 685, 625 N.Y.S.2d 590, 1995 N.Y. App. Div. LEXIS 4279

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 1995

StatusPublished

Cited by1 cases

This text of 214 A.D.2d 685 (People v. McKay) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McKay, 214 A.D.2d 685, 625 N.Y.S.2d 590, 1995 N.Y. App. Div. LEXIS 4279 (N.Y. Ct. App. 1995).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered June 29, 1992, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a [686]*686new trial is ordered. The facts have been considered and determined to have been established.

During its deliberations, the jury sent a note to the trial court which read, "Do we have to vote on both counts?”. The trial court sent a clerk to respond to this inquiry, instructing him as follows: "Yes, just say yes. If they want further information, let me know and we’ll bring them out”. The response to the jury’s question formulated by the court constituted an instruction on a question of law, and thus the delivery of this instruction to the jury should not have been delegated to the clerk (see, People v Coons, 75 NY2d 796; People v Torres, 72 NY2d 1007; People v Mehmedi, 69 NY2d 759; People v Ahmed, 66 NY2d 307; People v Lara, 199 AD2d 419; People v Rogoski, 194 AD2d 754; People v Jones, 159 AD2d 644; cf., People v Lykes, 81 NY2d 767; People v Bonaparte, 78 NY2d 26; People v Buxton, 192 AD2d 289; People v Harrison, 192 AD2d 551; People v Torres, 191 AD2d 601; People v Smith, 181 AD2d 844). A new trial is therefore necessary.

Viewing the evidence in the light most favorable to the prosecution (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, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

We have reviewed the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Pizzuto, Hart and Krausman, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered June 29, 1992, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a [686]*686new trial is ordered. The facts have been considered and determined to have been established.

During its deliberations, the jury sent a note to the trial court which read, "Do we have to vote on both counts?”. The trial court sent a clerk to respond to this inquiry, instructing him as follows: "Yes, just say yes. If they want further information, let me know and we’ll bring them out”. The response to the jury’s question formulated by the court constituted an instruction on a question of law, and thus the delivery of this instruction to the jury should not have been delegated to the clerk (see, People v Coons, 75 NY2d 796; People v Torres, 72 NY2d 1007; People v Mehmedi, 69 NY2d 759; People v Ahmed, 66 NY2d 307; People v Lara, 199 AD2d 419; People v Rogoski, 194 AD2d 754; People v Jones, 159 AD2d 644; cf., People v Lykes, 81 NY2d 767; People v Bonaparte, 78 NY2d 26; People v Buxton, 192 AD2d 289; People v Harrison, 192 AD2d 551; People v Torres, 191 AD2d 601; People v Smith, 181 AD2d 844). A new trial is therefore necessary.

Viewing the evidence in the light most favorable to the prosecution (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, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

We have reviewed the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Pizzuto, Hart and Krausman, JJ., concur.

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Bluebook (online)

214 A.D.2d 685, 625 N.Y.S.2d 590, 1995 N.Y. App. Div. LEXIS 4279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mckay-nyappdiv-1995.

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