The People, Respondent,v.James Alcide, Appellant.

Brief

N.Y.September 3, 2013

To be argued by: KEITH DOLAN (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Kings County Indictment Number 1830/2005 JAMES ALCIDE, Defendant-Appellant. RESPONDENT'S BRIEF AND APPENDIX LEONARD JOBLOVE KEITH DOLAN Assistant District Attorneys of Counsel January 18, 2013 Telephone: Facsimile: 718-250-2485 718-250-2549 CHARLES J. HYNES DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (7 I 8) 250-2000 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . ........................................ iii QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 SUMMRY OF FACTS AND ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 The Trial.................................................. 5 The People's Case...................................... 5 The Defense Case and the Stipulations................. 13 The Charge, the Jury's Requests, and the Verdict...... 14 The Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16 The Appeal to the Appellate Division ..................... 16 ARGUMENT - DEFENDANT HAS FAILED TO PRESERVE HIS CLAIMS THAT THE TRIAL COURT ERRED BY PARTICIPATING IN THE READBACK OF TESTIMONY AND THAT THE COURT DID NOT GIVE ADEQUATE NOTICE OF ITS INTENDED RESPONSE TO THE READBACK REQUESTS .. 18 A. Defendant has failed to preserve his claim that the trial court erred by participating in the readback of testimony, and the alleged error does not fall within the exception to the preservation requirement for ~mode of proceedings" errors...................... 18 B. Defendant has failed to preserve his claim that the trial court did not comply wi th the notice requirement of C. P. L. § 310.30, and the alleged error does not fall within the exception to the preservation requirement for ~mode of proceedings" errors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39 TABLE OF CONTENTS (cont' d) Page CONCLUSION - FOR THE FOREGOING REASONS, THE ORDER OF THE APPELLATE DIVISION AND DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED............................................... 50 APPENDIX - Excerpt of Transcript of Preliminary Instructions....... RA.l Excerpt of Sentencing Transcript........................ RA.6 Certification Pursuant to C. P. L. R. § 2105 ............... RA.8 ii TABLE OF AUTHORITIES Pages CASES People v. Agramonte, 87 N. Y. 2d 765 (1996) . . . . . . . . . . . . . 22, 23 People v. Ahmed, 66 N. Y. 2d 307 (1985) . . . . . . . . . . . . . . . . . 23 People v. Alcide, 95 A. D. 3d 897 (2d Dep't 2012) . . . . . . . 1, 16, 17 People v. Alcide, 19 N. Y. 3d 956 (2012) . . . . . . . . . . . . . . . . 2, 17 People v. Alvarez, 20 N.Y.3d 75 (2012) ................24 People v. Autry, 75 N.Y.2d 836 (1990) .................33, 48 People v. Baker, 14 N.Y.3d 266 (2010) .................30 People v. Bayes, 78 N.Y.2d 546 (1991) .................23 People v. Becoats, 17 N.Y.3d 643 (2011), cert. denied, 132 S. Ct. 1970 (2012) ............. passim People v. Berg, 59 N.Y.2d 708 (1983) ..... .............31 People v. Brockett, 74 A.D.3d 1218 (2d Dep't 2010) ....28 People v. Brown, 7 N.Y.3d 880 (2006) .................. 24 People v. Casey, 95 N. Y. 2d 354 (2000) ................. 23 People v. Collins, 99 N.Y.2d 14 (2002) ................35 People v. Davis, 58 N.Y.2d 1102 (1983) ...............31 People v. DeRosario, 81 N.Y.2d 801 (1993) .............49 People v. People v. People v. People v. Gray, 86 N.Y.2d 10 (1995) ...................21, 24 Guzman, 76 N.Y.2d 1 (1990) ..................31 Hawkins, 11 N.Y.3d 484 (2008) ...............23 Hernandez, 94 N.Y.2d 552 (2000) .............35, 36 iii TABLE OF AUTHORITIES (cont' d) Pages People v. Kadarko, 14 N.Y.3d 426 (2010) ...............24, 34, 35, 49 People v. Kelly, 5 N. Y. 3d 116 (2005) . . . . . . . . . . . . . . . . . . passim People v. Kelly, 16 N. Y. 3d 803 (2011) . . . . . . . . . . . . . . . . . 35 People v. Kisoon, 8 N. Y. 3d 129 (2007) . . . . . . . . . . . . . . . . . 23 People v. Lykes, 81 N. Y. 2d 767 (1993) . . . . . . . . . . . . . . . . . passim People v. Mays, No. 225, 2012 N.Y. LEXIS 3667 (Dec. 18, 2012) ..................................34, 48 People v. Mezon, 80 N.Y.2d 155 (1992) ......... ........20 People v. Olsen, 34 N.Y.2d 349 (1974) .................37, 38 People v. O'Rama, 78 N.Y.2d 270 (1991) ................passim People v. Patterson, 39 N.Y.2d 288 (1976), aff'd, 432 U.S. 197 (1977) ..............................23 People v. Ramirez, 15 N.Y.3d 824 (2010) ...............48 People v. Robinson, 88 N. Y.2d 1001 (1996) .............21 People v. Rodriguez, 100 N.Y.2d 30 (2003) .............22 People v. Rosen, 96 N. Y. 2d 329, cert. denied, 534 U.S. 899 (2001) ..............................32 People v. Smart, 96 People v. Starling, People v. Stewart, People v. Tabb, 13 N. Y.2d 793 (2001) ................. 30 85 N.Y.3d 509 (1995) .............. passim 81 N.Y.2d 877 (1993) ............... 49 N.Y.3d 852 (2009) ..................23, 49 People v. Thomas, 50 N.Y.2d 467 (1980) ................32, 47 iv TABLE OF AUTHORITIES (cont' d) Pages People v. Webb, 78 N. Y.2d 335 (1991) ..................24 People v. Whalen, 59 N.Y.2d 273 (1983) ................21 People v. Williams, 16 N.Y.3d 480 (2011) ..............32 People v. Yut Wai Tom, 53 N.Y.2d 44 (1981) ............22, 37, 38 CONSTITUTIONAL PROVISIONS N. Y. Const. art. VI, § (3) (a) ......................... 19, 40 STATUTES C.P.L. § 310.30 ....................................... passim C. P.L. § 470.05 .......................................19, 40 P.L. § 125..25 .........................................1, 6 P.L. former § 265.02 ..................................6 P.L. former § 265.03 ..................................1, 6 v QUESTIONS PRESENTED 1. Whether defendant has failed to preserve for appellate review his claim that the trial court erred by participating in the readback of testimony, and whether the alleged error does not fall within the exception to the preservation requirement for ~mode of proceedings" errors. 2. Whether defendant has failed to preserve for appellate review his claim that the trial court erred by allegedly not giving adequate notice to defense counsel of the court's intended response to the jury's readback requests, and whether the alleged error does not fall within the exception to the preservation requirement for ~mode of proceedings" errors. vi COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Kings County Indictment Number 1830/2005 JAMES ALCIDE, Defendant-Appellant. RESPONDENT'S BRIEF PRELIMINARY STATEMENT Defendant, James Alcide, appeals from an order of the Appellate Di vision, Second Department, dated May 1, 2012. People v. Alcide, 95 A.D.3d 897 (2d Dep't 2012). The Appellate Division affirmed a judgment of the Supreme Court, Kings County, rendered December 12, 2006, convicting defendant, following a jury trial, of Murder in the Second Degree (P.L. § 125.25(1)) and Criminal Possession of a Weapon in the Second Degree (P.L. former § 265.03(2)), and sentencing him to concurrent terms of imprisonment of eighteen years to life on the murder count and nine years on the weapon possession count (Reichbach, J., at trial and sentence) . By order dated June 25, 2012, Judge Victoria A. Graffeo granted defendant permission to appeal to this Court from the order of the Appellate Division. 956 (2012). People v. Alcide, 19 N.Y.3d Defendant is incarcerated pursuant to this judgment. were no co-defendants. There 2 SUMMRY OF FACTS AND ARGUMENT On February 20, 2005, inside a store in Brooklyn, defendant James Alcide shot and killed Steven St. Jean. After a jury trial, defendant was convicted of intentional murder and second- degree criminal possession of a weapon. The Appellate Division affirmed defendant's judgment of conviction. On this appeal, defendant asserts two claims. First, defendant claims that the trial court erred by participating in the readback of the testimony of two witnesses during the jury's deliberations. However, at the trial, defendant did not obj ect to the court's participation in the readback. Moreover, contrary to defendant's contention, the ~mode of proceedings" exception to the preservation requirement does not apply to his claim regarding the court's participation in the readback, because the court did not commit any error, let alone a ~mode of proceedings" error, when the court participated in the readback. The statute that sets forth the procedure to be followed when a court responds to a deliberating jury's request for a readback of testimony C.P.L. § 310.30 neither requires that a readback be done by the court reporter nor prohibits the judge from participating in the readback. Therefore, defendant's claim regarding the court's participation in the readback should be rej ected on the ground that it is unpreserved and beyond the review of this Court. 3 Second, defendant claims that the trial court failed to give defense counsel adequate notice of the court's intended response to the readback requests. However, at the trial, defendant did not obj ect to the adequacy of the notice of the court's intended response. Moreover, contrary to defendant's contention, the "mode of proceedings" exception to the preservation requirement does not apply to his claim regarding the adequacy of the trial court's notice of its intended response to the jury's readback requests, because the trial court did not commit any error, let alone a ~mode of proceedings" error, regarding the manner in which the court provided notice of its intended response. The controlling statute C. P. L. § 310.30 requires that the court provide notice to the People and to defense counsel of the jury's request before the response is given. In this case, the court complied with that requirement, because the court informed the parties of the content of the jury's notes requesting the readbacks, and of the court's intended response to those requests, before the court proceeded wi th the readbacks themselves. Therefore, defendant's claim regarding the adequacy of the notice of the court's intended response to the readback requests similarly should be rej ected on the ground that it is unpreserved and beyond the review of this Court. 4 Accordingly, this Court should affirm the Appellate Division's order affirming the judgment of conviction. 5 STATEMENT OF FACTS Introduction On February 20, 2005, inside a store at 3111 Church Avenue in Brooklyn, defendant James Alcide shot and killed Steven St. Jean. For this crime, defendant was charged, by Kings County Indictment Number 1830/2005, with Murder in the Second Degree (P.L. § 125.25(1)); Criminal Possession of a Weapon in the Second Degree (P.L. former § 265.03(2)); and Criminal Possession of a Weapon in the Third Degree (P. L. former § 265.02 (4) ) . The Trial The People's Case MIRIAM MORENCY considered Steven St. Jean to be one of her best friends; he was like a big brother to her and she saw him almost every day. Morency had known St. Jean since 1993 or 1994, and she also knew his family (Morency: A.55-57).1 St. Jean was a member of the Crips, and he had a street name, ~Juks," which was a West Indian reference to stabbing (Morency: A.58, 75, 80, 109-10). Morency also knew defendant, whom she knew as 1 Numbers in parentheses preceded by ~A" refer to pages of defendant's appendix; and numbers preceded by ~RA" refer to pages of the respondent's appendix, which is attached to this brief. Wi tnesses' names precede the page references. 6 ~Jimmy," and she knew where he lived. Morency had known defendant since 1995, and she would see defendant about once a week. Morency and defendant also had mutual acquaintances (Morency: A.56-57, 118). On February 20, 2005, Morency was in her house with st. 90-91) . Afterwards, St. Jean drove Morency (Morency: A.60, to pick up her Jean, who had been recently released from jail daughter and the laundry. They drove in St. Jean's car to a laundromat on Church and Raleigh Avenues, about two blocks from Morency's home (Morency: A. 61-62) . St. Jean parked his car and waited while Morency went into the laundromat. While inside, Morency looked for St. Jean's former girlfriend, Carla (also known as ~Cookie") -- who was defendant's new girlfriend -- but she was not there (Morency: A.63; Detective ROBERT SOMMER: A. 308-09) . Morency returned to St. Jean's car with her laundry, and she told St. Jean that Carla was not inside (Morency: A. 64). St. Jean then got out of his car and walked to another laundromat across the street (Morency: A. 64-65) . same time, Morency saw that Carla was approaching. At about the St. Jean and Carla then went into the second laundromat (Morency: A. 65-66) . However, in a ~quick second," St. Jean came back out. St. Jean then walked into a grocery store across the street (Morency: 7 A.66-67) . Morency remained outside by St. Jean's car, waiting for him (Morency: A.68). Morency then heard two gunshots, separated by a few seconds, coming from the direction of the grocery store (Morency: A. 69) . She saw four or five people running out of the store, and then she saw defendant run out of the store, towards her. Defendant had braids in his hair, and he was holding in his left hand a black gun, wrapped in a jacket (Morency: A.70- 72, 105, 112). Morency yelled at defendant, and he almost dropped the gun. Defendant used his right hand to hold up his falling pants (Morency: A. 71-73) . Morency yelled at defendant, ~I can't believe -- I don't think -- I can't believe you. No, not you" (Morency: A.73, 105- 06) . She also told defendant that he was going to have problems because St. Jean was a member of the Crips (Morency: A. 107) . Morency believed that defendant had heard her; defendant turned and looked at Morency, but kept running away (Morency: A.73-74, 105, 110). Morency ran to the grocery store, and she saw St. Jean lying on the floor, conscious, with a bullet hole in his arm. A woman was present, as were the store employees (Morency: A.74- 77, 103). St. Jean said to Morency, ~Jimmy. You know Jimmy, right?" (Morency: A.76, 112). Morency said, ~I know. .I saw him. Don't say no more." St. Jean told her to take care of his 8 car. His eyes then rolled to the back of his head, and he started shaking as if he was having a seizure (Morency: A.76- 77) . Morency told st. Jean that she was calling the police (Morency: A. 77, 118). The police arrived, and a crowd was gathering by the store. As the detectives were taking Morency away, she saw Carla standing by the doorway. Morency screamed at her, ~AII this is your fault, you know. This is your fault" (Morency: A. 77-78) . Two other individuals observed the events. At the time of the shooting, TERRY BENNETT was parked in front of a restaurant on Church Avenue, between East 31st and 32nd Streets (Bennett: A.193) . A bodega was to Bennett's immediate right, on the same side of the street, a few doors down from where he was parked (Bennett: A. 196-97, 212-13). In addition, at about the same time, DESMOND GRENARDO was also parked on Church Avenue, between East 31st and 32nd Streets, by a nail salon next to a bodega (Grenardo: A.230-3l, 233-34, 243, 247-48). While Bennett was in the parked car; he heard a gunshot. Bennett looked to his right and saw defendant, who had braids; defendant was standing in the doorway of a bodega near Bennett's car, with a black nine-millimeter pistol in his right hand (Bennett: A.197-200, 202, 223).2 Defendant was a stranger, and 2 Bennett identified defendant in court (Bennett: A.200). 9 he stood a few feet away (Bennett: A. 207) . Defendant exclaimed ~Fuck that" and turned to fire two more shots back into the store, with his gun pointing downwards (Bennett: A. 200-01) . Defendant then walked away, passing in front of Bennett's car. Defendant tried to put the gun in his waist, but he put it under his coat instead (Bennett: A.202, 216, 225). As Grenardo's wife was putting laundry bags into the car, Grenardo heard what he recognized as two or three gunshots (Grenardo: A.232, 248). Grenardo looked into his rearview mirror and saw two people running across the street -- a man wi th braids and a woman. the side, not the front. Grenardo saw the man's face only from Grenardo called the police (Grenardo: A.232-34, 237-38, 249, 252). After defendant left the scene, Bennett and Grenardo went into the bodega. The victim was on the floor, and a woman was running towards the store, screaming (Bennett: A.202-04, 216; Grenardo: A.238). The victim was on his side, with a very faint pulse, and could not speak (Grenardo: A.238-39, 254-55). Bennett left without waiting for the police (Bennett: A.204-05, 226). On February 20, 2005, at about 5:00 P.M., Police Officer JACQUELINE DeCARLO responded to a radio report and went to the delicatessen at 3111 Church Avenue (DeCarlo: A.14l-43, 152-53). At the scene, the officer observed shell casings and a crowd outside the store; she found employees inside the store, along 10 with St. Jean, who had been shot, on the floor. Officer DeCarlo asked him if he was shot, but he was unable to reply. An ambulance arrived and took St. Jean to the hospital (DeCarlo: A.144-46, 148, 150-51, 153-55, 158-59). Carla was on the scene, arguing with another person. Officer DeCarlo asked her if she had seen anything, but she said no. the precinct (DeCarlo: A.147, 158). Later that day, Detecti ve JOSEPH BELLO of the Crime Scene Unit prepared a sketch and took photographs of the scene (Bello: A.6-8, 11, 32, 40, 46). The detective recovered three items of ballistics evidence: a deformed bullet (which he designated Bl); a discharged nine-millimeter shell casing (designated B2); and a live nine-millimeter cartridge (designated B3). There was The police took Carla to also a bullet impact mark from a ricochet on the store floor (Bello: A.8-l0, 16-17, 19, 22, 25, 28-29, 45-52). Detective Bello also recovered three latent fingerprints from the exterior of the entrance door (Bello: A. 31, 33). After the shooting, Bennett became curious about what had happened to the victim, and he contacted a friend, Police Officer Athena Brook-Smith, and asked about the victim. Officer Brook-Smith told Bennett that she would check and get back to him. Officer Brook-Smith called Bennett back and asked how he knew about the incident; he told her that he had been there. 11 Two days later, Detective Hardman called Bennett to inquire about what he had witnessed (Bennett: A.205, 217-19, 227). On March 11, 2005, defendant surrendered to the police with his attorney. Detecti ve ROBERT SOMMER observed that defendant's hair was different than had been described, because the police were looking for somebody with braids, but when defendant surrendered, his hair was not in braids (Sommer: A.290-9l, 293). On that same day, Detective Sommer arranged a lineup consisting of defendant and five other subjects (Sommer: A.29l-93, 304). The police put hats or head coverings on everyone in the lineup so that nobody could see the hairstyles, and the police also had everyone sit down to minimize any height differences (Sommer: A.294-95, 299). Defendant picked his own number, number three. Defendant did not wish to change his number between lineup viewings. His attorney was present for the lineup and did not raise any objections (Sommer: A.29l-92, 299-301). Morency, Bennett, and Grenardo came to the precinct to view the lineup. They were escorted into the precinct, were kept separate before the viewings, and were not allowed to communicate (Sommer: A. 296-97, viewed the lineup separately Bennett identified defendant in 300, 302-03). (Sommer: A.299). Each witness Morency and the lineup (Morency: A.78-79; Bennett: A.205-06; Sommer: A.296). Grenardo also viewed the 12 lineup, but could not identify anyone because he had seen the gunman's face only from the side (Grenardo: A.239, 256). On February 21, 2005, Dr. ANDREA COLEMAN performed an autopsy on st. Jean's body (JULES ST. JEAN: A.129-3l; DeCarlo: A.15l-52; Coleman: A.169). St. Jean had sustained three gunshot wounds to the upper left arm, the lower right arm, and the left chest. The bullets that caused the arm wounds exited and were not recovered; one bullet was recovered from the chest. St. Jean had bled to death from damage to his lungs caused by the gunshot wound to his chest, and the bullet wound to the right arm had damaged a major artery (Coleman: A.172-75, 179-80, 184, 187-90) . Detective JAMES VALENTI, an expert in firearms operability and microscopics, examined the three pieces of ballistics evidence recovered at the scene, as well as the bullet recovered during the autopsy. Detecti ve Valenti concluded that the deformed lead bullet and the discharged casing were both nine- millimeter, and had probably been fired from a semi-automatic pistol. However, a bullet and a casing cannot be matched to each other. The deformed bullet and the autopsy bullet could not be definitively matched (Valenti: A.267, 275-82). 13 The Defense Case and the Stipulations Defendant did not present any witnesses in his behalf (A. 313) . The parties stipulated that the latent fingerprints recovered from the doorway did not match the fingerprints of defendant or St. Jean. The parties also stipulated to the weather conditions and sunset time on February 20, (Stipulation: A. 312-13) . 2005 The Charge, the Jury's Requests, and the Verdict On November 9, 2006, the court submitted three counts to the jury: Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and, in the alternative, Criminal Possession of a Weapon in the Third Degree (A.339, 451-52, 454- 55) . During the afternoon session that day, as deliberations were in progress, the jury was assembled in the courtroom and the court announced that it had received three notes from the jury: a note requesting to see the photographs in evidence; a note requesting the reading of the testimony of the first officer at the crime scene; and a note requesting the reading of Mr. Bennett's testimony (A.466; A.478-79 (Court Exhibits 3 and 4 J) . The court then outlined its intended response to the jury's requests for the readback of testimony: 14 To expedite this, and hopefully to keep you awake, what we will do on the direct, I will read the questions, the court officer will read the witness's response, and we'll reverse that on cross-examination, with the reporter reading the questions and I'LL be reading the response of the witnesses. The officer. court reporter, not I stand corrected. the court (A. 466-67) . Defendant did not raise any obj ection that he had not received notice of the content of the notes, or complain that he had not received an opportunity to be heard regarding the court's proposed manner of response. Nor did defendant raise any objection to the court's stated intention to participate in the readback (A.466-67). At 4:16 P.M., after the testimony was read back, the court sent the jury to resume its deliberations (A. 467) . Again, defendant raised no obj ection (A. 467) . Later that afternoon, the court received another note from the deliberating jury, which, the court advised the parties, ~reads as follows, we need a repeat and clarification of the defini tion of reasonable doubt" (A. 467). The court asked if the parties wished to be heard; defense counsel said no (A. 467-68) . The court gave the requested instruction and sent the jury to resume its deliberations (A. 468-72) . The court then asked, ~Anybody wish to be heard?" and defense counsel answered no (A. 472) . 15 The jury thereafter convicted defendant of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree (A. 474) . The Sentence On December 12, 2006, the court sentenced defendant to concurrent terms of imprisonment of eighteen years to life on the murder count and nine years on the weapon possession count (RA. 6-7) . The Appeal to the Appellate Division On appeal to the Appellate Division, Second Department, defendant asserted that the trial court had failed to comply with the requirements of People v. O'Rama, 78 N.Y.2d 270 (1991), when the court responded to the jury notes requesting the readback of testimony, and that the trial court's participation in the readback was improper. On May 1, 2012, the Appellate Division unanimously affirmed the judgment of conviction (A.1-2). People v. Alcide, 95 A.D.3d 897 (2d Dep't 2012). The Appellate Division held that defendant had failed to preserve for appellate review his claim that the trial court's procedure for handling the jury notes was contrary to this Court's decision in 0' Rama, and the Appellate Division declined to reach the unpreserved claim in its interest of justice jurisdiction (A. 1) . 95 A.D.3d at 898. The Appellate 16 Division, citing People v. Starling, 85 N.Y.2d 509 (1995), held that since the jury merely requested readbacks of certain trial testimony, the alleged error did not constitute a mode of proceedings error which would obviate the preservation requirement (A. 1) . 95 A.D.3d at 898. In addition, the Appellate Division held that defendant's claim of error regarding the trial court's participation in the readback was unpreserved, and declined to review that claim pursuant to its interest of justice jurisdiction. Id. On June 25, 2012, Judge Victoria A. Graffeo granted defendant leave to appeal to this Court from the order of the Appellate Division (A.3). People v. Alcide, 19 N.Y.3d 956 (2012) . 17 ARGUMENT DEFENDANT HAS FAILED TO PRESERVE HIS CLAIMS THAT THE TRIAL COURT ERRED BY PARTICIPATING IN THE READBACK OF TESTIMONY AND THAT THE COURT DID NOT GIVE ADEQUATE NOTICE OF ITS INTENDED RESPONSE TO THE READBACK REQUESTS. Defendant failed to preserve for appellate review his claim that the trial court erred when it participated in the readback of testimony, and defendant similarly failed to preserve his claim that the court failed to give defense counsel adequate notice of the court's intended response to the jury's readback requests. Moreover, contrary to defendant's contention, neither alleged error falls within the exception to the preservation requirement for ~mode of proceedings" errors. Consequently, defendant's claims are beyond this Court's review, and the order of the Appellate Division and defendant's judgment of conviction should be affirmed. A. Defendant has failed to preserve his trial court erred by participating in testimony, and the alleged error does the exception to the preservation ~mode of proceedings" errors. claim that the the readback of not fall within requirement for When, during the deliberations, the jury requested the readback of the testimony of two witnesses, the trial court responded to that request by participating, with the court reporter, in the readback of that testimony. At the trial, defense counsel did not assert any obj ection to that procedure 18 at any time. Contrary to defendant's claim, the alleged error of the court's participation in the readback was not a ~mode of proceedings" error that excused defendant's failure to preserve his claim. Indeed, the ~mode of proceedings" exception to the preservation rule does not apply, because the trial court's participation in the readback was not error at all, let alone a ~mode of proceedings" error; C. P. L. § 310.30 -- which is the statute that specifies the procedure to be followed when the court responds to a deliberating jury's request for a readback of testimony -- does not prohibit the court from participating in a readback. Therefore, defendant's present claim that the court's participation in the readback constituted error is unpreserved for appellate review and beyond the review of this Court. Defendant claims on appeal that the trial court erred by personally participating in the readback of testimony. At the trial, however, defendant did not object at all to the procedure that the court followed in responding to the jury's readback requests, either when the court stated, before the readback began, how the court intended to conduct the readback, or after the readback was concluded (see A. 466-67) . Consequently, the claim is unpreserved for appellate review. See C. P. L. § 470.05(2). Therefore, the claim is beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); People v. Becoats, 17 19 N.Y.3d 643, 650 (2011) (~The general rule, of course, is that this Court does not consider claims of error not preserved by appropriate obj ection in the court of first instance" (citations omitted)), cert. denied, 132 S. Ct. 1970 (2012); People v. Kelly, 5 N.Y.3d 116, 119 (2005) (~Ordinarily, preservation is essential to the exercise of this Court's jurisdiction, which is limi ted to the review of questions of law" (citations omitted)) . Defendant argues that his claim is not subject to the preservation requirement (Defendant's Brief at 33-37), but that argument is meri tless. Defendant's argument that it would have been ~particularly unfair" to require counsel to object ~under the circumstances" (Defendant's Brief at 37) is without merit. There is absolutely nothing in the record to support defendant's assertion that the trial court's announcement that it would participate in the readback ~strongly suggested that it would not alter its already-stated plan" regarding the readback if defendant lodged a protest (id.). Thus, this is not an instance in which the failure to object should be excused because an obj ection would have been futile. Cf. People v. Mezon, 80 N. Y. 2d 155, 160-61 (1992) (once trial court stated its ruling unequivocally, any further objection would have been futile; ~The law does not require litigants to make repeated pointless protests after the court has made its position clear"). 20 Indeed, nothing prevented defendant from informing the court of any obj ections or other concerns that he might have had regarding the readback procedure. Upon hearing an obj ection by defendant, the court might have decided not to participate in the readback. In any case, by objecting, defendant would have given the court an opportunity to avert the alleged error and to change its intended course of action. However, defendant deprived the court of such an opportunity to avoid the procedure that he now claims was unduly prejudicial. See People v. Robinson, 88 N.Y.2d 1001, 1002 (1996) (~to frame and preserve a question of law reviewable by the Court of Appeals, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error"); People v. Gray, 86 N. Y. 2d 10, 20 (1995) (~The chief purpose of demanding notice through obj ection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention"); People v. Whalen, 59 N.Y.2d 273, 280 (1983) (objection is required to alert trial judge to claimed error, so as to afford court an opportunity to correct itself). In addition, defendant's contention that his failure to object should be excused because any objection could have ~easily telegraph (ed)" to the jury his concern that the court would be conveying its personal belief to the jury (Defendant's 21 Brief at 37) is also unpersuasi ve. If defendant was concerned about voicing his arguments before the jury, then he could have asked to approach the bench and to discuss the matter at sidebar, out of the jury's hearing. See People v. Rodriguez, 100 N.Y.2d 30, 36 (2003) (defense counsel objected and asked to approach the bench); People v. Yut Wai Tom, 53 N. Y. 2d 44, 55 n. 6 (1981) (defense counsel requested a sidebar to renew his objection) . In short, there was absolutely no reason why defendant could not have raised an objection to the court's proposed plan to participate in the readback, and there is no reason to excuse defendant's failure to preserve the issue. Moreover, this Court should reject defendant's argument that the unpreserved claim may be considered because the alleged error was a ~mode of proceedings" error (Defendant's Brief at 34-37) . While ~ (t) he general rule, of course, is that this Court does not consider claims of error not preserved by appropriate obj ection in the court of first instance," the Court has nevertheless recognized a ~narrow exception for so-called 'mode of proceedings' errors. " Becoats, 17 N.Y.3d at 650 (citations omitted). No preservation is required for a claim regarding a ~mode of proceedings" error, because such errors "go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted." Kelly, 5 N. Y. 3d at 119-20; People v. Agramonte, 87 N. Y.2d 765, 769-70 (1996); 22 People v. Patterson, 39 N.Y.2d 288, 295 (1976), aff'd, 432 U.S. 197 (1977). But ~ (n) ot every procedural misstep in a criminal case is a mode of proceedings error." Becoats, 17 N.Y.3d at 651; see also People v. Hawkins, 11 N.Y.3d 484, 492 n.2 (2008). Such errors are within a ~tightly circumscribed class," and outside that limited category, this Court ~ha (s) repeatedly held that a court's failure to adhere to a statutorily or consti tutionally grounded procedural protection does not relieve the defendant of the obligation to protest." Kelly, 5 N. Y. 3d at 120 (footnote omitted); see also Becoats, 17 N. Y. 3d at 651; Agramonte, 87 N.Y.2d at 770; Patterson, 39 N.Y.2d at 295-96. The characterization of an error as a ~mode of proceedings" error ~is reserved for the most fundamental flaws." Becoats, 17 N.Y.3d at 651. Thus, this Court has found mode of proceedings errors where: the trial judge delegated his or her function to a law secretary or to the attorneys, People v. Bayes, 78 N.Y.2d 546, 551 (1991); People v. Ahmed, 66 N.Y.2d 307, 312 (1985); there was no proof in the record that the trial court complied with its core responsibilities under C. P. L. § 310.30, People v. Tabb, 13 N.Y.3d 852, 853 (2009); People v. Kisoon, 8 N.Y.3d 129 (2007); or pleading errors occurred involving omission of elements of the charged crime, People v. Casey, 95 N. Y. 2d 354, 362 (2000). 23 By contrast, this Court has refused to expand that narrow exception to the preservation requirement, and to hold that an alleged error was a mode of proceedings error, for a wide variety of other claims. See People v. Alvarez, 20 N.Y.3d 75, 81 (2012) (public trial violation is a not a mode of proceedings error); People v. Kadarko, 14 N.Y.3d 426,429-30 (2010) (trial court's decision to delay reading the entirety of a jury note may have been error, but it was not a mode of proceedings error); People v. Brown, 7 N.Y.3d 880 (2006) (instructing jury at voir dire on elements of the charges); Gray, 86 N.Y.2d at 21 (claim that prosecution failed to prove each element of the crime charged); People v. Webb, 78 N.Y.2d 335,339 (1991) (failure to sequester the jury). The ~mode of proceedings" exception to the preservation rule does not apply to defendant's claim regarding the trial court's participation in the readback of testimony, because the trial court did not commit any error, let alone a ~mode of proceedings" error, when it participated in the readback. The procedure to be followed when a court responds to a deliberating jury's request for a readback of testimony is set forth in C. P. L. § 310.30. That statute provides, in relevant part: At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or wi th respect to any other matter pertinent to the 24 jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. (Emphasis added). That statute applies to a jury's request for a readback of testimony, because such a request constitutes a ~request (to) the court for further . information . with respect to the content or substance of any trial evidence." C.P.L. § 310.30. Thus, the controlling statute neither requires that the court reporter be the person who reads back the testimony in response to the jury's request nor otherwise prohibits the judge from participating in the readback of that testimony. On the contrary, the statute explicitly provides that it is ~the court" that ~must" give such requested information as the court deems proper. C.P.L. § 310.30. Consequently, far from prohibiting the judge's participation in the readback of testimony, the language of C. P. L. § 310.30 apparently authorizes such participation, because the term ~the court," as used in that statute, refers, at the very least, to the judge. In light of the clear language of C. P. L. § 310.30 providing that it is ~the court" -- not the court reporter -- who must give the requested information in response to a jury's request for a readback of testimony, defendant does not cite any 25 statutory authority for the proposition that ~the judge should not have personally participated in the readback" (Defendant's Brief at 33). Instead, lacking any statutory authority for that proposition, defendant relies on ~a well-established, long- standing custom and practice for the court reporter to read both the questions and the answers when a deliberating jury requests a readback" (id. at 27). But even if having the court reporter read back requested testimony is ~a well-established, long- standing custom and practice," it does not follow that adherence to that practice is required by law or that departing from the practice by having the judge participate in the readback is prohibi ted by law. Indeed, the reason why the practice of having the court reporter read back requested testimony is widespread is presumably because, in cases in which the requested testimony has not yet been transcribed, the court reporter may be the only person in the courtroom who has the ability to read the stenographic notes regarding the testimony at issue. Thus, the existence of a common practice of having the court reporter read back requested testimony does not mean that there is any reason why the judge may not participate in the readback when a transcript of the requested testimony is available. Moreover, contrary to defendant's assertion that the court's participation in the readback ~served no legitimate 26 purpose" (Defendant's Brief at 29) , a court could reasonably conclude that, when conducting a readback of a witness's testimony, it is preferable not to have the same person read both the questions that were put to the witness and the witness's answers. After all, during the witness's actual testimony, one person (one of the lawyers, or, sometimes, the judge) was asking the questions, and another person (the wi tness) was gi ving the answers. Thus, it is reasonable to conclude that it would be easier for the jury to listen to the readback, and to separate the questions from the answers, if two people, rather than the court reporter alone, participates in the readback. The court in this case apparently concluded as much, stating that one of the reasons that it was going to participate in the readback was ~hopefully to keep (the jurors) awake" (A. 466) . The trial court -- which was of course uniquely familiar with the court reporter and the jury at the trial over which the court presided reasonably concluded that its approach would expedite the readback and help to keep the jury attentive. Even if, as defendant argues, there were other ways in which the court could have addressed its stated concerns about expeditiousness and the jury's attentiveness without participating in the readback (see Defendant's Brief at 29-30), 27 it does not follow that the procedure used by the court was improper. 3 Defendant also argues that the trial court erred by participating in the readback in an allegedly uneven manner, because, for both of the witnesses whose testimony was read back, the court read the prosecutor's questions on direct examination and then read the witness's responses on cross- examination. Defendant argues that, ~by assuming the role of the prosecutor and then the prosecution witnesses, the court necessarily suggested to the jury that it was 'aligned with' the prosecutor, and that it felt comfortable taking the prosecutor's position, but not defense counsel's position, in this case" (Defendant's Brief at 28). However, the court's instructions to the jury assured that the jury would draw no such conclusion from the court's participation in the readback of testimony. 3 In support of his claim that the judge should not have personally participated in the readback, defendant relies on the decision in People v. Brockett, 74 A.D.3d 1218 (2d Dep't 2010), in which the Appellate Division stated, in dictum, that it agreed with the defendant's contention that the trial judge should not have participated as a reader in the readback of testimony. Id. at 1221 (see Defendant's Brief at 27, 28, 30). However, in Brockett, the Appellate Division did not cite any statutory authority for that conclusion and did not explain how to reconcile that conclusion with the language of C. P. L. § 310.30, which apparently authorizes the judge's participation in the readback of testimony (see supra at 24-25). Therefore, that dictum in Brockett should not be followed. 28 In its preliminary instructions and in its final charge, the trial court gave the jury specific instructions regarding the court's absolute and complete impartiali ty, and the exclusi ve fact-finding power of the jury. In the preliminary instructions, the court stated: It will be your duty to find from the evidence what the facts are. You and you alone are the sole and exclusive judges of the facts. Nothing that I may say during the course of this trial should be taken by you as indicating what your verdict should be. I have neither knowledge nor opinion about the facts in this case, but even if I did, my opinion would be wholly and completely irrelevant to your determination. As I say, you and you alone are the exclusive judges of the facts. (Y) ou must not infer from any ruling I make or any ruling you think I have made or indeed from anything I say or do that I hold any views regarding the evidence in the case. (RA.2, 5). In the final charge, the court stated: Next, you must not infer from any of my rulings or, indeed, from anything I've said or done during the course of this trial that I hold any personal views for or against this defendant. (A.428) . The court emphasized that only the jury could determine the facts, and that no one including the court -- could influence that determination: No one, not counsel, nor the Court, presume to tell you how those issues of should be decided, and the credibility, may fact that 29 is the believability, of each itself, an issue of fact exclusively within the province to determine. witness solely of the is, and jury (A. 429). The court also advised the jury: (I) f during the course of these instructions I refer to any evidence in the case, I again remind you that it is not my characterization of what the evidence was, but your own recollection that must govern your deliberations. (A. 430-31). In addition, the court told the jury: Now, during the course of the trial I had occasion to put some questions to some of the witnesses. When I did so it was because I thought the jury required enlightenment on a particular point. But my questions to the witnesses and the witnesses' response to those questions should be considered by you just as you consider every other question and answer. In other words, you shouldn't attach any special significance to the answer because it was the Judge who asked the question. (A.43l) . By these instructions, the court made clear to the jury that it had no role whatsoever in the determination of the facts, witness credibility, or the ultimate verdict -- which were the jury's sole province -- and that the jury was not to draw any inference regarding those issues from whatever the court may have said or done. ~Jurors are presumed to follow the legal instructions they are given." People v. Baker, 14 N.Y.3d 266, 274 (2010) (citations omitted); see also People v. Smart, 96 N.Y.2d 793, 30 795 (2001); People v. Guzman, 76 N.Y.2d 1, 7 (1990); People v. Berg, 59 N.Y.2d 294, 299-300 (1983); People v. Davis, 58 N.Y.2d 1102, 1104 (1983). Consequently, there is no basis for defendant's contention, that -- in direct violation of the trial court's repeated instructions that the jury should not infer ~from anything I say or do" or ~from anything I've said or done during the course of this trial" that the court ~h (e) ld any views regarding the evidence in the case" or ~h (e) ld any personal views for or against this defendant" (RA.5, A.428) the jury nevertheless concluded that the court was ~aligned wi th" the prosecutor just because of which questions and which answers the judge read in response to the jury's requests for a readback of testimony. Similarly, defendant's assertion that the judge might have inadvertently conveyed to the jury an opinion about the case by his tone of voice during the readback (Defendant's Brief at 33) an assertion that is purely speculati ve and unsupported by the record -- is inconsequential in light of those instructions that the jury should not infer from anything the judge said or did that he had any opinion about the case. Furthermore, the court expressly informed the jury why the court was participating in the readback: ~(t)o expedite this, and hopefully explanation as to to keep you why it was awake" (A.466) . The court's the readback,participating in 31 together with the other instructions cited above, precluded any possibility that the jury concluded that the court was aligned with the prosecution. Thus, for all of these reasons, the ~mode of proceedings" exception to the preservation requirement does not apply to defendant's claim that the trial court erred by participating in the readback of testimony, because the trial court did not commit any error, let alone a ~mode of proceedings" error, when the court participated in the readback. Cf. People v. Williams, 16 N. Y. 3d 480, 485-86 (2011) (this Court concluded that claim of error was meritless, and therefore rejected claim that alleged error was ~mode of proceedings" error); People v. Rosen, 96 N.Y.2d 329, 334-35 (same), cert. denied, 534 U.S. 899 (2001). In any event, even if the trial court's participation in the readback of testimony constituted error, it did not consti tute a ~mode of proceedings" error. An error is a ~mode of proceedings" error only if the procedure followed at trial ~was at basic variance with the mandate of law prescribed by Constitution or statute" (People v. Thomas, 50 N.Y.2d 467, 471- 72 (1980) (citations omitted)) and the error ~go (es) to the essential validity of the process and (is) so fundamental that the entire trial is irreparably tainted." Kelly, 5 N. Y. 3d at 119-20. In this case, there was no constitutional bar to the court's participation in the readback of testimony; and given 32 that the language of C. P. L. § 310.30 does not prohibit the judge from participating in a readback of testimony, and, indeed, apparently authorizes such participation (see supra at 24-25), the court's participation in the readback was not in conflict wi th any clear statutory mandate. In addition, an alleged error of a trial court should not be characterized as a ~mode of proceedings" error that is exempt from the preservation requirement when the absence of an obj ection at trial to the alleged error may well be attributable to a reasonable strategic decision by defense counsel. In People v. Autry, 75 N. Y. 2d 836 (1990), this Court held that a claim of error regarding an extended instruction to the jury that no adverse inference should be drawn from the defendant's failure to testify did not fall within the exception to the preservation requirement, noting that ~ it (was) entirely possible that the failure to object represent (ed) counsel's trial level determination that an extended instruction to the jury would benefit these defendants." Id. at 839. Similarly, in this case, defense counsel reasonably could have concluded that no obj ection was warranted, either because the judge's participation in the readback of testimony was preferable to having the readback done entirely by the court reporter, or, at the least, because it made no difference to defendant whether or not the judge participated in the readback (see supra at 27). 33 In this case, as in Autry, because defendant reasonably could have concluded that, at trial, no objection was warranted to the court's ruling, he should not be permitted, on appeal, to obtain a windfall by characterizing the court's ruling as a ~mode of proceedings" error that he can challenge as a matter of law even in the absence of an obj ection at trial. Because the court's participation in the readback of testimony, even if error, was not a ~mode of proceedings" error, defendant's claim should be rejected on the ground that it is unpreserved and beyond the review of this Court. See Kadarko, 14 N. Y. 3d at 429-30 (trial court's decision to delay reading the entirety of a jury note may have been error, but it was not a mode of proceedings error). Moreover, contrary to defendant's suggestion (Defendant's Brief at 22-26, 35), a different result is not required merely because the alleged error in this case occurred during jury deliberations. Notwithstanding defendant's observation that the deliberations stage of the proceedings is ~sensitive" (id. at 23), just as not every mistake in a trial constitutes a mode of proceedings error, Becoats, 17 N. Y. 3d at 651, not every mistake during deliberations constitutes a mode of proceedings error. See People v. Mays, No. 225, 2012 N.Y. LEXIS 3667 (Dec. 18, 2012) (no mode of proceedings error where, during deliberations, jury asked to see surveillance video, prosecutor played back 34 video at judge's direction, jurors called out ministerial requests to which prosecutor responded, and defendant claimed on appeal that trial judge committed an O'Rama error by failing to give counsel notice before formulating a response to jury's requests during playback); People v. Kelly, 16 N.Y.3d 803, 804 (2011) (no mode of proceedings error where, during deliberations, court directed court officer to speak to juror privately about child care issue, but did not instruct jury to stop deliberating, nor direct officer to provide such instruction) ; Kadarko, 14 N.Y.3d at 429-30 (no mode of proceedings error where court delayed reading the entirety of a jury note); People v. Collins, 99 N. Y.2d 14, 17 (2002) (no mode of proceedings error where court instructed deliberating jury, only through the verdict sheet, to consider counts in the alternative, without recalling jury and instructing jury to that effect in defendant's presence); People v. Hernandez, 94 N. Y. 2d 552 (2000) (no mode of proceedings error where trial judge absented himself from the proceedings during readback of testimony) . This Court's decision in People v. Hernandez, 94 N.Y.2d 552 (2000), supports the conclusion that, in this case, the trial court's participation in the readbacks was not a ~mode of proceedings" error. In Hernandez, the deliberating jury After specifying therequested several readbacks of testimony. 35 testimony to be read back, and instructing the court reporter to do so, the trial judge (with the consent of the parties), absented himself from the proceedings during the readback of the testimony. Id. at 553-54. This Court concluded that while the absence of trial judges from readbacks was ~disfavored," the judge's absence ~did not rise to the level of a 'mode of proceedings' error." Id. at 556 (citation omitted). Thus, even if the judge's conduct at issue in defendant's case were deemed to constitute error, the fact that the conduct at issue involved the readback of testimony during deliberations does not automatically means that the alleged error was a ~mode of proceedings" error. Given this Court's holding in Hernandez that a trial judge's absence from the courtroom during a readback of testimony did not constitute a ~mode of proceedings" error, there is no basis to hold that the trial judge's participation in a readback was nevertheless such an error. Contrary to defendant's suggestion, the holding in Hernandez did not rest on the rationale that the judge's absence from the readback suggested to the jury that the judge ~ (was) actually disinterested in the readback process and the outcome of the case" (Defendant's Brief at 35 n. 5), but instead rested on the rationale that the judge's absence from the readback did not prevent the performance of an essential, non-delegable judicial function. See Hernandez, 94 N.Y.2d at 555-56 (~all substantive 36 rulings regarding readbacks were made by the Trial Judge and no delegation of judicial authority occurred (citations omitted)"). Just as the conduct of the judge in Hernandez did not result in the delegation of any judicial authority, so too in this case, the court's participation in the readback did not result in the delegation of any judicial authority. In support of his claim of error, defendant relies upon People v. Olsen, 34 N.Y.2d 349 (1974), and People v. Yut Wai Tom, 53 N.Y.2d 44 (1981) (see Defendant's Brief at 20-23), but that reliance is misplaced. The trial court's ruling at issue in Olsen cannot be compared to the readback procedure in the case at bar. In Olsen, after the jury had been deliberating for several hours, the trial court permitted the prosecutor to recall one of the prosecution witnesses to give additional testimony, over the defendant's obj ection. 34 N.Y.2d at 350. Among its criticisms of this procedure, this Court observed that ~new evidence introduced during the jury's deliberations is likely to be given undue emphasis," resulting in the possibility of prejudice. Id. omitted) . Defendant's at 353 (citation and quotation marks comparison of the introduction of new testimony to a deliberating jury, with a trial judge's Defendant offersparticipation in a readback, is unpersuasi ve. no persuasive explanation as to why a readback by a court reporter is not comparable to the submission of prejudicial new 37 evidence, but a readback by the court reporter together with the trial judge is comparable to the submission of such new evidence. Accordingly, Olsen fails to provide any support for defendant's claim of error in this case. Nor does People v. Yut Wai Tom, 53 N. Y.2d 44 (1981), provide any support for defendant's claim that the trial court's readback consti tuted excessive interference and unwarranted participation in the triaL. In Yut Wai Tom, this Court held that the defendant was denied a fair trial because of the trial judge's unwarranted interference in the examination of witnesses, which included the judge's 55 n. 6, asking 58-59. of 1,300 Nothing ofsubstanti ve questions. Id. at 54, the sort occurred in the case at bar; rather, the court merely participated in a readback of testimony in response to the jury's request. Thus, Yut Wai Tom is wholly inapposite to defendant's argument. For all of these reasons, the trial court's participation in the readback of testimony was not a ~mode of proceedings" error. Therefore, defendant's claim regarding the court's participation in the readback should be rej ected on the ground that it is unpreserved and beyond the review of this Court. 38 B. Defendant has failed to preserve his claim that the trial court did not comply with the notice requirement of C. P. L. § 310.30, and the alleged error does not fall within the exception to the preservation requirement for ~mode of proceedings" errors. When, during the deliberations, the jury requested the readback of the testimony of two witnesses, the trial court, in the presence of the parties and the jury, read aloud the jury notes requesting the readback of that testimony, explained how the court intended to participate in the readback, and then proceeded with the readback. At the trial, defense counsel did not assert any objection to that procedure at any time. Contrary to defendant's claim on appeal, the alleged error of the court's failure to give notice to defense counsel, outside the presence of the jury, of the court's intended response to the readback requests was not a "mode of proceedings" error that excused defendant's failure to preserve his claim. Indeed, the ~mode of proceedings" exception to the preservation rule does not apply, because the procedure followed by the trial court with regard to notice to the parties of the court's intended response to the readback requests was not error at all, let alone a ~mode of proceedings" error; the procedure followed by the trial court complied with the notice requirement of C. P. L. § 310.30, which is the statute that specifies the procedure to be followed when the court responds to a deliberating jury's request for a readback of testimony. Therefore, defendant's 39 present claim that the court failed to give defense counsel adequate notice of the court's intended response to the readback requests is unpreserved for appellate review and beyond the review of this Court. Defendant claims on appeal that the trial court erred by allegedly not giving adequate notice to defense counsel of the court's intended response to the jury's readback requests. At the trial, however, defendant did not obj ect at all to the adequacy of the notice to counsel of the court's intended response, either when the court stated, before the readback began, how the court intended to conduct the readback, or after the readback was concluded (see A.466-67). Consequently, the claim is unpreserved for appellate review. See C. P. L. § 470.05(2). Therefore, the claim is beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); People v. Starling, 85 N.Y.2d 509, 516 (1995) (claim that trial court failed to comply with notice requirements of C.P.L. § 310.30 was subject to preservation requirement where court read entire content of jury's notes in open court prior to responding). The ~mode of proceedings" exception to the preservation rule does not apply to defendant's claim regarding the adequacy of the trial court's notice of its intended response to the jury's readback requests, because the trial court did not commit any error, let alone a ~mode of proceedings" error, regarding 40 the manner in which the court provided notice of its intended response. The procedure to be followed when a court responds to a deliberating jury's request for a readback of testimony is set forth in C.P.L. § 310.30. That statute provides, in relevant part: At any time during its deliberation, the jury may request the court for further instruction or information with. respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. (Emphasis added). That statute requires that the court provide notice to the People and to defense counsel of the ~actual specific content" of the jury's request (People v. O'Rama, 78 N.Y.2d 270, 277 (1991)), but the requirement of the statute regarding the timing of that notice is only that the ~requested information or instruction" must be given ~after" the notice to the parties. C.P.L. § 310.30. In this case, the court fully complied with that requirement, because the court informed the parties of the content of the jury's notes requesting the readbacks, and of the court's intended response to those requests, before the court proceeded wi th the readbacks themselves (see A.466-67). See People v. Lykes, 81 N.Y.2d 767, 769-70 (1993) (where, after jury was brought back into 41 courtroom, and in presence of defendant and counsel, court read jury note into record and gave response to jury's request, ~the requirements of CPL 310.30 were not violated") . Indeed, in People v. O'Rama, 78 N.Y.2d 270 (1991) -- which is the case on which defendant primarily bases his claim -- this Court stated that a purpose of the ~notice" requirement of C.P.L. § 310.30 ~is to ensure that counsel has the opportunity to be heard before the response is given." 78 N.Y.2d at 277 (emphasis in original). That purpose was satisfied by the procedure followed by the trial court in this case, because nothing prevented defense counsel from making any requests or obj ections after the court read the content of the jury's notes to the parties and informed the parties of the court's intended response, and before the court began the readbacks. This case is controlled by this Court's decisions in People v. Starling, 85 N.Y.2d 509 (1995), and People v. Lykes, 81 N.Y.2d 767 (1993). In Starling, the defendant claimed that the procedure followed by the court in responding to the jury's requests for an instruction on the law failed to comply with the notice requirements of C.P.L. § 310.30. This Court held that the defendant's claim was subject to the preservation requirement because, in contrast to the situation in O'Rama in which the Court held that such a claim was reviewable even in the absence of a timely obj ection in Starling, ~the court 42 read the entire content of the jury's notes in open court prior to responding," and ~defense counsel was given notice of the content of the jury's notes and had knowledge of the substance of the court's intended response." 85 N. Y.2d at 516. In defendant's case, as in Starling, "the court read the entire content of the jury's notes in open court prior to responding," and ~defense counsel was given notice of the content of the jury's notes and had knowledge of the substance of the court's intended response." See id. Therefore, in defendant's case, as in Starling, ~counsel' s silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here." See id. Similarly, in Lykes, after the trial judge received the note at issue from the jury, which requested reinstruction on the legal definitions of the crimes charged, the jury was brought back into the courtroom, and, in the presence of the defendant and counsel, the judge read the note into the record and proceeded to charge the jury in response to its request. 81 N.Y.2d at 769. This Court held that, in those circumstances, ~the requirements of CPL 310.30 were not violated," because defense counsel had an opportunity to participate before the court gave the reinstruction. Id. at 770. In defendant's case, as in Lykes, the procedure followed by the trial court did not violate the requirements of C.P.L. § 310.30, because, as in 43 Lykes, the court informed counsel of the content of the jury's notes and counsel had an opportunity to participate in framing a response before it was given, even though, as in Lykes, counsel was not given notice of the content of the notes until after the jury had been brought back into the courtroom. Defendant contends that the notice to defense counsel of the content of the jury's notes and of the court's intended response was inadequate because the court did not give that notice ~before convening the jury" (Defendant's Brief at 41). That contention is meri tless. Although, in 0' Rama, this Court endorsed a procedure, with respect to a substantive written communication from a jury, of reading the note into the record in the presence of counsel ~before the jury is recalled to the courtroom," 78 N.Y.2d at 277-78, this Court has never held that it is error for the trial court to read the note into the record in the presence of counsel only while in the presence of the jury. Nor would such a holding be supported by the language of C.P.L. § 310.30, which requires only that the notice to defense counsel be given before the court gives its response to the jury's request, but does not require that the notice be given outside the jury's presence. Indeed, in 0' Rama itself, this Court stated that the point of its decision in that case ~ (was) not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize 44 participation by counsel at a time when counsel's input is most meaningful, i. e., before the court gives its formal response." 78 N. Y. 2d at 278 (emphasis added). In this case, the procedure followed by the trial court satisfied that purpose, because the trial court gave counsel notice of the content of the jury's notes and of the court's intended response "before the court g(a)ve() its formal response." See id. And, in Lykes, this Court held that ~the requirements of CPL 310.30 were not violated" when the trial court gave counsel notice of the content of the jury's note only after the jury had been brought back into the courtroom. Lykes, 81 N.Y.2d at 770. Defendant asserts that the trial court's response to the jury's notes was ~completely unanticipated," insofar as the court participated in the readback (Defendant's Brief at 41), but that assertion does not require a different result. First, the only "notice" to defense counsel that is required by C. P. L. § 310.30 is notice of the ~actual specific content" of the jury's request (0' Rama, 78 N.Y.2d at 277), not notice of the court's intended response. Thus, the court was not required to give any notice of its intended response. See Lykes, 81 N. Y.2d at 769-70 (~the requirements of CPL 310.30 were not violated" where, after jury was brought back into courtroom, and in presence of defendant and counsel, court read jury note into 45 record and gave response to jury's request; court apparently did not give notice of its intended response) . In any event, the trial court plainly stated, before the readback began, that the court would participate in the readback, and how the court would participate in the readback (A. 466-67) . That notice was sufficient to allow defense counsel to inform the court of any objections or other concerns that he might have had regarding the readback procedure, whether the court's decision to participate in could be characterized as ~unanticipated." Thus, for all of these reasons, the ~mode of proceedings" regardless of the readback exception to the preservation requirement does not apply to defendant's claim that the trial court failed to give defense counsel adequate notice of the court's intended response to the readback requests, because the procedure followed by the trial court with regard to notice to the parties of the court's intended response to the readback requests was not error at all, let alone a ~mode of proceedings" error. See Lykes, 81 N. Y.2d at 770 (where defendant claimed that trial court violated notice requirement of C.P.L. § 310.30, and, at trial, defendant did not object to procedure employed by trial court, this Court concluded that claim was meritless, holding that ~the requirements of CPL 310.30 were not violated") . 46 In any event, even if the procedure followed by the trial court with regard to notice to the parties of the court's intended response to the readback requests constituted error, it did not constitute a ~mode of proceedings" error. An error is a ~mode of proceedings" error only if the procedure followed at trial ~was at basic variance with the mandate of law prescribed by Constitution or statute" (Thomas, 50 N.Y.2d at 471-72 (ci tations omitted)) and the error ~go (es) to the essential validity of the process and (is) so fundamental that the entire trial is irreparably tainted." Kelly,S N.Y.3d at 119-20. In this case, there was no constitutional requirement that the trial court's notice to counsel of the jury's readback requests be provided outside the presence of the jury; and given that the language of C.P.L. § 310.30 does not prohibit a judge from providing notice of a readback request in the presence of the jury (see supra at 24-25; Lykes, 81 N.Y.2d at 770), the procedure followed by the trial court with regard to notice to the parties of the court's intended response to the readback requests was not in conflict with any clear statutory mandate. In addition, just as defense counsel reasonably could have concluded that no objection to the judge's participation in the defense counsel reasonably could (see supra at 27), so too have concluded that no readback of testimony was warranted objection to the adequacy of the notice that the judge intended 47 to participate in the readback was warranted. Because defendant reasonably could have concluded that, at trial, no objection was warranted to the adequacy of the notice to the parties of the court's intended response to the readback requests, he should not be permi tted, on appeal, to obtain a windfall by characterizing the alleged inadequacy of the notice as a ~mode of proceedings" error that he can challenge as a matter of law even in the absence of an objection at triaL. N.Y.2d at 839. Indeed, this Court has repeatedly rej ected claims that an alleged violation of the notice requirement of C. P. L. § 310.30 See Autry, 75 constituted a ~mode of proceedings" error when, as in this case, defense counsel was given notice of the jury's request at some point before the court actually responded to that request. See Mays, 2012 N. Y. LEXIS 3667 (no mode of proceedings error where, during deliberations, jury asked to see surveillance video, prosecutor played back video at judge's direction, jurors called out ministerial requests to which prosecutor responded, and defendant claimed on appeal that judge committed an 0' Rama error by failing to give counsel notice before formulating a response to jury's requests during playback); People v. Ramirez, 15 N.Y.3d 824 (2010) (claim that trial court did not provide defense counsel with notice of jury note and opportunity to be heard regarding court's response was unpreserved, where counsel 48 had notice of contents of jury note and court's response); Kadarko, 14 N. Y. 3d at 429-30 (no mode of proceedings error where court delayed reading the entirety of a jury note); Starling, 85 N. Y. 2d at 516 (claim that trial court failed to comply with notice requirements of C. P. L. § 310.30 was subj ect to preservation requirement where court read entire content of jury's notes in open court prior to responding); People v. Stewart, 81 N.Y.2d 877 (1993) (defendant did not preserve claim that he was denied opportunity to discuss with court any supplemental instructions before such instructions were actually given); cf. People v. Tabb, 13 N.Y.3d 852 (2009) (mode of proceedings error occurred where court apparently did not inform defense counsel and prosecutor about contents of jury note requesting instruction on law); People v. DeRosario, 81 N. Y. 2d 801, 803 (1993) (O'Rama involved ~a total deprivation to defense counsel of notice and an opportunity to participate meaningfully in the court's response to a jury's written inquiry"). Thus, the procedure followed by the trial court with regard to notice to the parties of the court's intended response to the readback requests was not a ~mode of proceedings" error. Therefore, defendant's claim regarding that procedure should be rej ected on the ground that it is unpreserved and beyond the review of this Court. Accordingly, the order of the Appellate Division and the judgment of conviction should be affirmed. 49 CONCLUSION FOR THE FOREGOING REASONS, THE ORDER OF THE APPELLATE DIVISION AND DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. Dated: Brooklyn, New York January 18, 2013 Respectfully submitted, CHARLES J. HYNES District Attorney Kings County LEONARD JOBLOVE II ~ 0 0\ í . KEITH DOLAN flU t\ ~ Assistant District Attorneys of Counsel 50