SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

574 

KA 09-01627 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROBIN KALINOWSKI, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Michael L.

D’Amico, J.), rendered February 25, 2009. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law and a new trial is granted. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting her upon a jury verdict of murder in the second degree

(Penal Law § 125.25 [1]) and, in appeal No. 2, defendant appeals from

a judgment convicting her upon her plea of guilty of conspiracy in the

second degree (§ 105.15). With respect to appeal No. 1, defendant

contends that she is entitled to a new trial based on County Court’s

failure to comply with CPL 310.30 in handling the first note from the

jury. We agree. At the commencement of jury deliberations, the

attorneys and the court agreed that, if the jury requested certain

items of evidence, the court would provide the jury with the evidence

without first reassembling the parties in the courtroom. The first

jury note read: “The jury would like further clarification of the

path of the bullet. Does the autopsy report clarify the exact path of

the bullet wound in the decedent[’s] head - if so, can we please

hear/see the path of the wound and/or autopsy report.” The court did

not read the jury note into the record, nor did it respond to the note

on the record. In fact, there is no indication in the record that

defendant or her attorney was even apprised of the note or its

content. Thus, it is clear that the court failed to comply with the

mandates of CPL 310.30 (see generally People v O’Rama, 78 NY2d 270,

276-278).

We reject the contention of the People that the court’s handling

of the jury note was proper pursuant to the stipulation entered at the
-2- 574 

KA 09-01627 

commencement of jury deliberations. The jury did not merely request

the autopsy report or another exhibit in its first note. Rather, as

defendant correctly notes, the note can fairly be interpreted as

requesting a readback of the testimony of the Chief Medical Examiner,

who testified extensively concerning the path of the bullet in the

victim’s head. At the very least, the note is ambiguous as to whether

the jury was requesting a readback of certain testimony, as opposed to

or in addition to the autopsy report, and we conclude that the court

should therefore have notified the attorneys of the note and afforded

them an opportunity to be heard with respect to an appropriate

response. Although defendant did not object to the court’s handling

of the first jury note, preservation is not required because the court

failed to comply “with its core responsibilities under CPL 310.30” and

thereby committed a mode of proceedings error (People v Tabb, 13 NY3d

852, 853; see People v Kisoon, 8 NY3d 129, 135; see generally O’Rama,

78 NY2d at 276-277). 

Defendant further contends in appeal No. 1 that the indictment

should be dismissed because the evidence is legally insufficient to

establish that she intended to kill the victim. We reject that

contention inasmuch as the People presented ample evidence of

defendant’s intent to kill. Viewing the evidence in light of the

elements of the crime as charged to the jury (see People v Danielson,

9 NY3d 342, 349), we also reject defendant’s contention that the

verdict is against the weight of the evidence. Even assuming,

arguendo, that a different verdict would not have been unreasonable,

we cannot conclude that the jury failed to give the evidence the

weight it should be accorded (see People v Kalen, 68 AD3d 1666, 1667,

lv denied 14 NY3d 842; see generally People v Bleakley, 69 NY2d 490,

495). Because defendant is entitled to a new trial based on the

court’s failure to comply with CPL 310.30, we need not address her

remaining contentions in appeal No. 1. 

With respect to appeal No. 2, defendant contends that, in the

event that she is entitled to a new trial on the murder charge, her

plea of guilty to conspiracy in the second degree must be vacated. We

reject that contention. Defendant was charged with conspiracy in the

second degree and criminal solicitation in the second degree (Penal

Law § 100.10) based on her efforts to hire someone to kill her former

paramour so that he would be unable to testify at the murder trial. 

After defendant was convicted of murder and sentenced to a term of

imprisonment of 25 years to life, defendant pleaded guilty to

conspiracy in the second degree and the court promised to sentence her

to a concurrent term of imprisonment. Defendant was informed prior to

sentencing that her conspiracy conviction would stand even in the

event that she was successful on her appeal from the judgment

convicting her of murder, and defense counsel acknowledged that

defendant was aware of the same when she pleaded guilty. Defendant

therefore is not entitled to vacatur of her plea inasmuch as reversal

of the murder conviction and removal of the sentence imposed thereupon

does not nullify “a benefit that was expressly promised and was a 
-3- 574 

KA 09-01627 

material inducement to the guilty plea” (People v Rowland, 8 NY3d 342,

345; see generally People v Pichardo, 1 NY3d 126,129-130). 

Entered: May 6, 2011 Patricia L. Morgan

Clerk of the Court