An upstate man convicted of murder in a stabbing attack will get a new trial because his 2006 trial judge never made his lawyer aware of the substance of one of two jury notes that requested more information about jury instructions.
An Appellate Division, Fourth Department panel has ruled that then-Monroe County Court Judge Stephen Sirkin “violated the core requirements of CPL 310.30 in failing to advise counsel … of the contents of a substantive jury note, and thereby committed reversible error.”
The unanimous panel explained that during deliberations in the trial of Anthony Ott, the jury sent two notes to Sirkin seeking more information on the court’s legal jury instructions. The first note asked that the jury be given a written copy of the court’s legal instructions. The second note requested, in part, that the jury receive a re-reading of all of the court’s legal instructions, the panel said.
“The court informed the parties that the jury had sent several notes and indicated that the jury requested a re-reading of the instructions, but the court did not mention the contents of the first note,” the panel wrote. The justices added that while the record established that Ott’s lawyer was made aware of the existence of the initial note, “there is no indication that the entire contents of the note were shared with counsel,” quoting People v. Morrison.
“We therefore ‘reject the [Rochester District Attorney’s Office's] argument that defense counsel’s awareness of the existence and the “gist” of the note satisfied the court’s meaningful notice obligation [under under CPL 310.30],’” the justices wrote, adding that “’in 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,’” again quoting Morrison.
Ott was convicted in a 2005 stabbing attack, perpetrated with Edwin Perez, on two men as they walked through the parking lot of a Rochester bar, according to court papers. One of the men attacked, Travis Gray, was stabbed eight times and later died of his injuries, records said.
Ott was convicted of second-degree murder and first-degree assault and was sentenced to 20 years to life in prison, although he later appealed and was subsequently resentenced, according to court records and the Fourth Department panel. Perez was convicted of at least first-degree manslaughter, according to a court record.
The panel sitting in Rochester, composed of Justices Gerald Whalen, Nancy Smith, Brian DeJoseph, Shirley Troutman and Joanne Winslow, wrote on Oct. 5 that after the earlier appeal that led to resentencing, Ott made a subsequent motion for a writ of error coram nobis on the ground that his appellate counsel had failed to raise an issue that may have merit—namely, whether the court erred when it failed to comply with CPL 310.30 in its handling of jury notes.
The panel in People of the State of New York v. Ott granted the writ of error coram nobis.
Thomas Theophilos, of the Law Office of Thomas Theophilos in Buffalo, represented Ott. He said in an email that judges “should take care to ensure that they read the exact specific contents of jury notes into the record rather than offering summaries of those notes,” and “should mark any jury note as an exhibit and then state on the record that counsel was given the jury note and asked to read it for himself.”
“And on this score, it is not sufficient for the judge to simply give a copy of the note to counsel without stating on the record that counsel was given the note,” Theophilos said.
Daniel Gross, an assistant district attorney representing the state, could not be reached for comment.