The Appellate Division, First Department, at 27 Madison Ave.
The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)

A Manhattan appeals court has overturned a conviction for low-level drug possession in a case where a judge instructed the jury—while the defendant and his counsel were not present—that it must resume deliberations.

The Appellate Division, First Department‘s, ruling Thursday in People v. Farez, 3662 359/14, said the dismissal was based on other decisions by Bronx County Supreme Court Justice Eugene Oliver Jr. during a 2015 drug possession trial, such as denying access to a police document as evidence.

However, the majority stated that “were we not reversing on the basis of error regarding the Rosario material and the related cross-examination, we would reverse on another ground—namely, [the judge's] communication with the jury off the record and outside the presence of defendant and his counsel.”

It was that focus on Oliver’s communication with the jury that engendered disagreement from two justices, who wrote separately in a lengthy concurrence.

The case focused on defendant Joel Farez’s charge of possession of a controlled substance in the fifth degree. According to the panel, Farez was sentenced to three years in prison in part because he was a second-felony drug offender.

The Rosario material in question involved police documentation of the arrest of another person for Suboxone possession around the time Farez was arrested. The panel said that Oliver denied a discovery request by Farez and rejected his trial counsel’s argument that he and the other person, both Hispanic men, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer about the same time and location.

Yet the panel spent almost as much space in the opinion addressing Oliver’s decision to address the jury outside of the presence of Farez and his trial lawyer.

“After the jurors had been deliberating for four days, they sent a note to the court stating they were deadlocked on the third count of the indictment and asking for guidance,” the panel wrote. “The court discharged the jury for the day in contemplation of taking further actions. … The next morning, in defendant’s and his counsel’s absence, the court instructed the jury, off the record, to resume deliberations. The same afternoon, the court informed defendant and his counsel of this instruction, and counsel did not object.”

The panel said Oliver’s action could not be rectified.

“[T]he presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given, and failure to notify them is a fundamental error,” the justice wrote, citing People v Ciaccio. “Here, the absence … during the court’s undisputedly substantive instruction to resume deliberating notwithstanding the reported deadlock was a mode of proceedings error, requiring reversal despite the lack of any objection.”

Justices John Sweeny, Ellen Gesmer, Karla Moskowitz, Richard Andrias and Marcy Kahn joined the decision.

But in a separate concurrence Andrias, joined by Kahn, said Oliver complied with CPL 310.30 by reading verbatim the jury’s note to Farez and his lawyer the previous afternoon, giving the lawyer a chance to respond, advising Farez and his lawyer that the jury would have one more day to deliberate, possibly with another Allen charge, and instructing the jurors to cease deliberations until they reassembled the next day.

That was enough, Andrias wrote, to make an objection by Farez’s defense counsel necessary. “However, not only did defense counsel fail to raise an objection, he in fact agreed with the procedure employed by the court,” he wrote.

The next morning, Oliver addressed the jury without Farez and his lawyer present, ordering them to resume work.

“Counsel and defendant were apprised of the procedure the court intended to employ and, upon defendant’s production the next morning, were immediately informed that the court had given a brief directive to the jury to resume deliberations,” Andrias wrote.

Farez’s appellate counsel, David Crow of The Legal Aid Society, did not return a call seeking comment, nor did a representative of the Bronx District Attorney’s office.