People v. McKay — 214 A.D.2d 685

Majority

p. 685

The People of the State of New York, Respondent, v Corey McKay, Appellant.

[625 NYS2d 590]

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

p. 686

new 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.

Cases cited

People v. Coons 75 NY2d 796 N.Y. 1990-01-11 p. 686
People v. Torres 72 NY2d 1007 N.Y. 1988-10-18 p. 686
People v. Mehmedi 69 NY2d 759 N.Y. 1987-02-10 p. 686
People v. Ahmed 66 NY2d 307 N.Y. 1985-11-21 p. 686
People v. Lara 199 AD2d 419 N.Y. App. Div. 1993-12-20 p. 686
People v. Rogoski 194 AD2d 754 N.Y. App. Div. 1993-06-21 p. 686
People v. Jones 159 AD2d 644 N.Y. App. Div. 1990-03-19 p. 686
People v. Lykes 81 NY2d 767 N.Y. 1993-01-12 p. 686
People v. Bonaparte 78 NY2d 26 N.Y. 1991-06-06 p. 686
People v. Buxton 192 AD2d 289 N.Y. App. Div. 1993-08-02 p. 686
People v. Harrison 192 AD2d 551 N.Y. App. Div. 1993-04-05 p. 686
People v. Torres 191 AD2d 601 N.Y. App. Div. 1993-03-15 p. 686
People v. Smith 181 AD2d 844 N.Y. App. Div. 1992-03-23 p. 686
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 686