O’Brien, J., dissents and votes to reverse the judgment, on the law, and to order a new trial, with the following memorandum: I dissent and vote to reverse the conviction on the ground that the court failed to disclose to defense counsel the full contents of a note from the jury, thereby depriving him of an opportunity to suggest a response on behalf of the defendant (see, People v O’Rama, 78 NY2d 270; People v Hewitt, 189 AD2d 781; CPL 310.30). A reversal is required even in the absence of a showing of specific prejudice to the defendant by the court’s action (see, People v O’Rama, supra, at 279-280).
In the note, the jury requested "all pictures” and the "DD5 from Jennifer Hill”. Two of the prosecution witnesses were named Jennifer Bell and Maxine Hill but there was no witness named "Jennifer Hill.” Bell’s written statement to the police was admitted into evidence. A DD5 containing statements by Hill was not admitted into evidence but was referred to during cross-examination. The court did not inform the attorneys of the contents of the jury’s note until after a verdict was reached. The court simply informed the attorneys that the jury had requested "the evidence, and the photos have been given to them. That is what they requested”.
The court’s failure to inform defense counsel of the jury’s request deprived him of the opportunity to suggest a meaningful response. As the Court of Appeals stated in People v O’Rama (supra, at 276-277), the statutory requirement of notice to counsel is not a mere formality but ensures that counsel has an opportunity to participate before the response is given. The approved procedure is to read the contents of the note into the record in the presence of counsel before the jury enters the courtroom and to give counsel a full opportunity to suggest appropriate responses (see, United States v Ronder, *633639d 931, 934; People v O'Rama, supra). While the court could have sought a clarification from the jury of its request prior to notifying counsel (see, People v Lykes, 81 NY2d 767), the court should have informed counsel before it ultimately responded to the jury’s request. The record indicates that the court’s only response was to send the photographs to the jury. Assuming that the jury wanted to see the DD5, rather than Bell’s written statement, counsel might have suggested that the court inform the jury that the DD5 was not in evidence but the jury could request a readback of testimony concerning the document.
I disagree with my colleagues’ conclusion that the defendant waived this issue because the parties stipulated that exhibits which were admitted into evidence could be provided to the jury without the necessity of an appearance by counsel. The request for the DD5 of "Jennifer Hill” could not be satisfied simply by sending to the jury the exhibits which were admitted into evidence. Moreover, the People’s claim that this issue is not preserved for review is without merit, as the defense counsel was deprived of notice of the full contents of the note (see, People v O’Rama, 78 NY2d 270, supra; cf., People v DeRosario, 81 NY2d 801).
In view of my conclusion that a new trial is required, I decline to address the remaining issues raised by the defendant.