The People, Respondent,v.James Alcide, Appellant.BriefN.Y.September 3, 2013To be argued by MELISSA S. HORLICK (20 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JAMES ALCIDE, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant- Appellant 2 Rector Street, 10th Floor New York, NY 10006 (212) 693-0085 MELISSA S. HORLICK Of Counsel September 2012 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . I PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . 5 Introduction . . . . . . . . . . . . . . . . . . . . 5 The People’s Case . . . . . . . . . . . . . . . . . 7 The Defense’s Theory and the Court’s Instructions . 12 The Deliberations and Verdict . . . . . . . . . . . 13 The Appellate Division Decision . . . . . . . . . . 18 ARGUMENT THE COURT DENIED APPELLANT’S DUE PROCESS RIGHTS TO A JURY TRIAL AND A FAIR TRIAL BY (A) PERSONALLY ASSUMING THE PROSECUTOR’S ROLE DURING READBACKS OF THE DIRECT TESTIMONY OF TWO PROSECUTION WITNESSES, AND THEN SWITCHING ROLES WITH THE COURT REPORTER TO READ THOSE WITNESSES’ CROSS-EXAMINATION ANSWERS; AND (B) FAILING TO FIRST ADVISE COUNSEL OF ITS INTENDED, UNORTHODOX READBACK PROCEDURE BEFORE ADDRESSING THE JURY. . . . . 18 (A) . . . . . . . . . . . . . . . . . . . . . . . . 20 (B) . . . . . . . . . . . . . . . . . . . . . . . . 38 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 46 TABLE OF AUTHORITIES Cases Pages Eason v. United States, 281 F.2d 818, 822 (9th Cir. 1960) . . . . . . . 25 People v. Agramonte, 87 N.Y.2d 765 (1996) . . . . . 34, 37 People v. Ahmed, 66 N.Y.2d 307 (1985) . . . . 3, 24, 26, 28, 34-35 People v. Arnold, 98 N.Y.2d 63 (2002) . . . 20, 21, 23, 25, 31 People v. Bayes, 78 N.Y.2d 546 (1991) . . . . . . . . . . 35 People v. BeCoats, 17 N.Y.3d 643 (2011) . . . . . . . . . 34 People v. Brockett, 74 A.D.3d 1218, 1221 (2d Dep’t 2010) . . . . 27, 28, 30 People v. Bryant, 82 A.D.3d 1114 (2d Dep’t 2011) . . . . 43 People v. Ciaccio, 47 N.Y.2d 431 (1979) . . . 2, 24, 25, 26 People v. Cook, 85 N.Y.2d 928 (1995) . . . 23, 25, 39, 40, 42, 44 People v. Cruz, 14 N.Y.3d 814 (2010) . . . . . . . . . . 27 People v. De Jesus, 42 N.Y.2d 519 (1977) . . 21, 22, 23 29 People v. DeRosario, 81 N.Y.2d 801 (1993) . . . . . . . . 43 People v. Dixon, 231 N.Y. 111 (1921) . . . . . . . . . . 27 People v. Dohring, 59 N.Y. 374 (1874) . . . . . . . . . . 36 People v. Ellis, 62 A.D.2d 471 (1st Dep’t 1978) . . . . . 29 People v. Ferrone, 204 N.Y. 551 (1912) . . . . . . . . . 24 People v. Gallo, 12 N.Y.2d 12 (1962) . . . . . . . . . . 27 People v. Gerrara, 88 A.D.3d 811 (2d Dep’t 2011) . . . . 43 People v. Grant, 42 A.D.2d 736 (2d Dep’t 1973) . . . . . 27 -i- People v. Hernandez, 94 N.Y.2d 552 (2000) . . . . . . 27, 35 People v. Jamison, 47 N.Y.2d 882 (1979) . . . 2, 20, 21, 23 29 People v. Kalinowski, 84 A.D.3d 1739 (4th Dep’t 2011) . . 44 People v. Kardarko, 14 N.Y.3d 426 (2010) . . . . . . . . 42 People v. Kelly, 5 N.Y.3d 116 (2005) . . . . . . . . 34, 37 People v. Kisoon, 8 N.Y.3d 129 (2007) . . . . . . . . 25, 40 People v. Kovzelove, 242 A.D.2d 477 (1st Dep’t 1997) . . 21 People v. Lewis, 262 A.D.2d 584 (2d Dep’t 1999) . . . . . 26 People v. Lockley, 84 A.D.3d 836 (2nd Dep’t 2011) . . . 42 People v. Lourido, 70 N.Y.2d 428 (1987) . . . . . . 26, 44 People v. Lykes, 81 N.Y.2d 767 (1993) . . . . . . . 41, 43 People v. Mees, 47 N.Y.2d 997 (1979) . . . . . . . . . .21 People v. McLaughlin, 150 N.Y. 365 (1896) . . . . . . . 22 People v. Monroe, 90 N.Y.2d 982 (1997) . . . . . . . . . 36 People v. Moulton, 43 N.Y.2d 944 (1978) . . . 2, 20, 21, 22 People v. Olsen, 34 N.Y.2d 349 (1974) . . . . 2, 3, 23, 24, 26, 28, 30, 33, 44 People v. O’Rama, 78 N.Y.2d 270 (1991) . . 4, 18, 20, 23, 25, 26, 34, 38, 39,40, 41, 43, 44, 45 People v. Paperno, 90 A.D.2d 168 (1st Dep’t 1982) . . . . 27 People v. Parisi, 276 N.Y. 97 (1937) . . . . . . . . 35, 36 People v. Patterson, 39 N.Y.2d 288 (1976) . . . . . . . . 34 People v. Ramirez, 15 N.Y.3d 824 (2010) . . . . . . . . . 41 -ii- People v. Rivera, 41 A.D.3d 347 (1st Dep’t 2007) . . . . 27 People v. Roman, 149 A.D.2d 305)(1st Dep’t 1989) . . . . 27 People v. Smith, 248 A.D.2d 413 (2d Dep’t 1998) . . . 26, 44 People v. Smith, 10 N.E. 873 (1887) . . . . . . . . . . 27 People v. Starling, 85 N.Y.2d 509 (1995) . . 4, 18, 38, 41, 44 People v. Tabb, 13 N.Y.3d 852 (2009) . . . . . . 25, 40, 45 People v. Toliver, 89 N.Y.2d 843 (1996) . . . . . . . . . 34 People v. Torres, 72 N.Y.2d 1007 (1988) . . . . . . . . 23 People v Yut Wai Tom, 53 N.Y.2d 44 (1981) . 2, 20, 21, 22, 23, 29, 33 Thom v. Jaymee Fashions, 29 N.Y.2d 534 (1971) . . . . . . 21 Thom v. Jaymee Fashions, 35 A.D.2d 946 (1st Dep’t 1970) 21 People v. Webb, 78 N.Y.2d 335 (1991) . . . . . . 34, 36-37 CONSTITUTIONS U.S. Const., Amend. XIV . . . . . . . . . . . . . . . . . 19 N.Y. Const. Art. I § 6 . . . . . . . . . . . . . . . . 19 N.Y. Const., Art. VI § 3(a) . . . . . . . . . . . . . . . 34 STATUTES P.L. § 125.25[1] . . . . . . . . . . . . . . . . . . . . 1 P.L. § 265.03 [2] . . . . . . . . . . . . . . . . . . . . 1 C.P.L. § 310.30 . . . . . . . . . . . . 4, 20, 25, 38, 39 44, 45, 46 C.P.L. § 450.90 . . . . . . . . . . . . . . . . . . . . . 2 C.P.L. § 470.35 (1) . . . . . . . . . . . . . . . . . . . 34 -iii- C.P.L. § 470.05 (2) . . . . . . . . . . . . . . . . . . . 34 OTHER AUTHORITY Criminal Justice Standards, A.B.A. § 6-3.4. . . . . . . 22 -iv- COURT OF APPEALS THE STATE OF NEW YORK ---------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JAMES ALCIDE, Defendant-Appellant. ---------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Judge of the Court of Appeals, granted June 25, 2012, appeal is taken from an order of the Appellate Division, Second Department, dated May 1, 2012, affirming a judgment of the Supreme Court, Kings County, entered on December 12, 2006, convicting appellant, after 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. § 265.03[2]), and sentencing him to concurrent prison terms of 18 years to life and 9 years with 5 years of post-release supervision, respectively (Reichbach, J.). Appellant’s motion for poor person relief and to assign Lynn W. L. Fahey was granted by this Court on August 28, 2012. No stay has been sought. Appellant is currently incarcerated pursuant to the judgment. This Court has jurisdiction pursuant to C.P.L. § 450.90 to entertain this appeal and review the issues, which were mode of proceedings errors not requiring preservation. QUESTION PRESENTED Whether the court denied appellant’s due process rights to a jury trial and a fair trial by (A) personally assuming the prosecutor’s role during readbacks of the direct testimony of two prosecution witnesses, and then switching roles with the court reporter to read those witnesses’ cross-examination answers; and (B) failing to first advise counsel of its intended, unorthodox readback procedure before addressing the jury. SUMMARY OF ARGUMENT This Court has repeatedly held that a trial judge should play an active role during the presentation of evidence only when necessary, and must take care to avoid creating even the suggestion that he or she has an opinion, which could be “decisive” in the minds of the jury. See People v. Yut Wai Tom, 53 N.Y.2d 44 (1981); People v. Jamison, 47 N.Y.2d 882 (1979); People v. Moulton, 43 N.Y.2d 944 (1978); People v. DeJesus, 42 N.Y.2d 519, 523 (1977). This is even more of a concern during deliberations, when the trial judge’s actions could create a particularly “real possibility” of prejudice to a defendant. People v. Olsen, 34 N.Y.2d 349 (1974); see also People v. Ciaccio, 47 N.Y.2d 431, 436 (1979). Thus, during 2 these, “critical, post-submission proceedings,” the trial judge court must take the utmost care in its dealings with the jury. Olsen, 34 N.Y.2d 349. The trial judge’s failure during deliberations to properly execute his or her supervisory role of remaining a neutral arbiter violates the defendant’s right to a trial by jury, a mode of proceedings error. See People v. Ahmed, 66 N.Y.2d 307 (1985). In this identification case, although it was entirely unnecessary, the trial judge actively participated in the readbacks of testimony by two key prosecution witness, Terry Bennett and Officer Jacqueline DeCarlo, by reading the prosecutor’s direct examination questions and the witnesses’ answers on cross-examination. In reading the direct examination questions posed to Bennett, an eyewitness, the court necessarily assumed the prosecutor’s role. It expressly referred to appellant as the shooter nine different times. It also reread questions that had elicited damaging details about the shooting and Bennett’s out-of-court and in-court identifications of appellant. Making matters worse, by switching roles during the readbacks, the trial court risked telegraphing to the jury, during this critical stage of the trial, that it had no problem aligning itself with the prosecutor, but was unwilling to align itself with defense counsel. It thereby implicitly 3 bolstered the People’s identification case and undermined appellant’s mistaken identification defense. The court adopted the same unconventional readback approach with Officer DeCarlo’s testimony, rereading the prosecutor’s questions that had elicited pro-prosecution and sympathetic responses regarding an “assault,” the shooting victim’s position on the floor, and his ensuing death. Again switching roles with the court reporter, the court then read the police officer’s answers on cross-examination, which undercut the defense’s attempt to suggest that the crowd outside the bodega had hindered the police investigation. This unorthodox and highly prejudicial conduct by the court denied appellant his due process rights to a fair trial and a jury trial. Additionally, this Court has held that a trial court fails to comply with its core responsibilities under People v. O’Rama, 78 N.Y.2d 270 (1991), and C.P.L. § 310.30 when it does not provide defense counsel with the opportunity to give specific input as to how it should respond to a jury note. To have the opportunity for meaningful input, defense counsel must be aware of the substance of the court’s intended response before the court addresses the jury. C.P.L. § 310.30; see People v. Starling, 85 N.Y.2d 509 (1995). 4 Under the circumstances here, where defense counsel had no way of knowing that the court would depart from the long- standing practice of having the court reporter alone provide the readbacks, the trial court’s failure to inform defense counsel of its unorthodox plan before it addressed the jury constituted a complete deprivation of the right to give specific input on the notes. This also denied appellant the fair jury trial to which due process entitled him. STATEMENT OF FACTS Introduction Appellant was indicted for second-degree murder and related charges resulting from a shooting of Crips gang member Steven St. Jean, whose girlfriend, “Cookie,” appellant had begun dating. On February 20, 2005, soon after St. Jean’s release from prison, he went with his friend Miriam Morency, who had been convicted of multiple fraud-related offenses, to look for Cookie at a Brooklyn laundromat. St. Jean found Cookie, briefly spoke with her, and then unexpectedly walked into a nearby bodega. Terry Bennett, a passerby parked near the bodega, saw a man he identified as appellant fire a gun into the bodega, and Morency claimed that appellant ran from 5 the bodega carrying a gun and that St. Jean said appellant’s name before losing consciousness. The defense argued that Morency was not credible and that Bennett, who had identified appellant for the first time nearly three weeks after the shooting, was mistaken and unreliable. During deliberations, the court received two notes requesting readbacks of Bennett’s and Officer Jacqueline Decarlo’s testimony. Nothing in the record indicates that the court showed the notes to the attorneys or consulted with them about how it intended to respond. In the presence of the jury, the court simply announced that it had received the readback requests and intended to personally conduct the readbacks by reading the prosecutor’s direct examination questions of both witnesses and then switching roles with the court reporter to read the witnesses’ responses on cross- examination. In reading the prosecutor’s questions of Bennett, the court repeatedly stated that appellant was the shooter. It also read questions that had elicited details about Bennett’s identification and the circumstances of the shooting. Then, switching roles to read the answers Bennett had given to defense counsel’s questions, the trial judge repeated testimony that tended to buttress the reliability of Bennett’s 6 identification by insisting that Bennett had had a good view of the shooter. The court followed the same procedure with DeCarlo’s testimony, rereading prosecution questions that evoked sympathetic details about St. Jean’s condition, and then answers that undercut the defense’s attempt to establish that the gathering crowd negatively affected the police investigation. Within hours of the readback, the jury convicted appellant of second-degree murder and weapon possession. The People’s Case Twenty-year-old Steven St. Jean, 6'3" tall and 192 pounds, was in the Crips gang (Miriam Morency: A.109-10; Medical Examiner Andrea Coleman: A.170).1 His nickname, “Juks,” slang for “stabbing people,” was tattooed on his body, along with additional tattoos depicting guns, the word “hustler,” and a bottle with money (Morency: A.57-58, 80, 86- 87, 109-10; Coleman: A.170-71, 186-87). St. Jean’s girlfriend, Carla, known as “Cookie,” became romantically involved with 20-year-old appellant, James Alcide, known as Jimmy (Morency: A.63, 56; Det. Robert Sommer: A.295). 1Parenthetical numbers preceded by “A” refer to pages of the Appendix. 7 Appellant, 5'6" tall and 140 to 145 pounds, had no criminal record (Sommer: A.295, 306). St. Jean and 37-year-old Miriam Morency had been very close family friends for 12 years (A.55-57, 79). At the time of trial, Morency was on probation for a 2006 forgery conviction (A.58-59, 110, 121). She also had three 2003 convictions for identity theft and insurance and credit card fraud for which she served 1 ½ years in prison (A.58-59, 119- 21). Morency claimed she and appellant were friendly, with acquaintances in common (A.56-57, 118). She admitted, however, that in 1995, when appellant was just 13 years old, Morency had used him in one of her insurance scams, resulting in her imprisonment (A.118-19, 121). On February 20, 2005, at about 1:30 p.m., St. Jean, recently released from prison, went to Morency’s house to drink champagne with her (Morency: A.60, 90-91). St. Jean then drove with Morency to Church Avenue and Raleigh Street in Brooklyn to look for Cookie (A.61-64, 194-95). After finding her, St. Jean and Cookie entered a laundromat together (A.64- 65, 94), but St. Jean quickly left the laundromat and walked toward a nearby bodega, a known hang-out for drug dealers where St. Jean handled his “business” (A.66-67, 93-94, 115). Morency remained at another laundromat, which was on the same 8 side of the street as the bodega, 40 feet away from it (Morency: A.67-68). Between 4:30 and 5:00 p.m., Terry Bennett and Desmond Grenardo, who were parked in cars near the bodega, heard gunshots (Bennett: A.131, 195-97, 212; Grenardo: A.230-34, 247-48).2 According to Bennett, when he looked to his right, he saw a 5'1"-to 5'2"-tall, light-skinned African-American man wearing baggy pants, a dark jacket, and braids, standing at the threshold of the bodega, holding a .9 mm gun in his right hand (A.197-99, 222-26). The man turned and Bennett saw his face (A.199). Once again facing into the bodega, the man said, “fuck that” and fired two more shots (A.200-01). As the man left the bodega, he tried to put the gun in his waist, but then hid it under his coat instead (A.202, 214, 225). He walked in front of Bennett’s car and then crossed the street (A.200, 202, 215). Grenardo looked in his car’s rear view mirror and saw a few people running on the street, including a 5'6"-tall man with dreads or “plaits,” who had nothing in his hands (A.232- 37, 205-53). Grenardo called 911 (A.236). Meanwhile, Morency heard two gunshots come from the direction of the bodega (A.68-69, 98, 104, 115). Although she 2 Morency insisted that St. Jean entered the bodega two hours earlier at 2:30 in the afternoon, when it was still “bright” outside (A.72). 9 claimed that appellant, along with other people, ran out of the store, she refused to look at appellant or identify him in court (A.70, 112). Despite Grenardo’s testimony that the man he saw did not have a gun in his hands (A.236), Morency claimed that appellant ran toward her carrying a black gun, which she could see although it was “wrapped” in a jacket (A.71-72, 106). Morency yelled, “I can’t believe you . . . no, not you!” (Morency: A.73, 106). He stopped and made eye contact with Morency before running again (A.73-74, 110). Bennett, Grenardo, and Morency all ran into the bodega, where St. Jean was on the floor (Bennett: A.203). According to Grenardo, St. Jean barely had a pulse, was not conscious, and was unable to speak (A.238-39, 254-55). Morency claimed, however, that St. Jean said to her, “Jimmy. You know Jimmy right?” and “Take care of my car” (A.76-77, 112). After Morency said that she had seen Jimmy, St. Jean’s eyes rolled back into his head and he appeared to suffer a seizure (Morency: A.77, 112). Morency called 911 (A.104-05, 118). When she left the bodega, Cookie was at the door, and Morency screamed that it was all her fault (A.77-78). Between 5:00 and 5:15 p.m., within a minute of receiving a radio run, Officer Jacqueline DeCarlo arrived at the bodega 10 (A.144, 153). With sunset at 5:37 p.m., it was already “dusk” and “starting to get dark” (A.144, 158; Stipulation). A crowd of 20 to 30 people was gathered outside (A.144, 157). Employees were behind plexiglass (A.144, 157). Lying on the floor, St. Jean was “mumbling but unconscious” and unable to speak (A.146, 159). St. Jean was brought by ambulance to the hospital, where he later died from blood loss caused by a penetrating gunshot wound to his chest (Jules St. Jean: A.130-31; DeCarlo: A.150- 51; Coleman: A.172-74, 180, 183, 190). He also had gunshot wounds to both arms (Coleman: A.172). Injuries of this type would cause the loss of consciousness either instantaneously or within several minutes (Coleman: A.190). Detective Joseph Bello found a .9 mm shell casing and cartridge on the sidewalk, but no gun was recovered (Bello: A.16-17, 25, 48, 51-53; Det. James Valenti: A.270-71, 274; People’s Exhibits 11, 12, 14). Four days later, on February 24, 2005, appellant’s attorney contacted the police, saying appellant had heard he was “wanted for something” and wanted to “come in” (Sommer: A.291, 304). Complying with the police instructions, the attorney brought appellant to the precinct two weeks later 11 (Sommer: A.291, 304). Appellant’s hair was black, unbraided, and “fluffy” (Sommer: A.293, 305; People’s Exhibit 17).3 On March 11, 2005, nearly three weeks after the shooting -- Bennett and Morency separately identified appellant in a lineup (Morency: A.79; Bennett: A.206). Grenardo could not identify anyone in the lineup and did not identify appellant in court (Grenardo: A.240, 256). The Defense’s Theory and the Court’s Instructions Defense counsel argued in summation that the People failed to prove appellant’s identity as the shooter beyond a reasonable doubt. Counsel contended that Bennett’s identification was unreliable, especially since he had inaccurately estimated his distance from the bodega, and he had only an obstructed view of the shooter, under less than optimal lighting conditions (A.349-51).4 3 In February 2005, according to Morency, appellant had shoulder-length braids that were blond on the ends (A.71). At trial, appellant’s hair was shorter and unbraided (Morency: A.70-71). 4 Bennett had testified that the shooter was 5 to 8 feet away from his car (A.207-08), while Detective Bello testified that the distance from the bodega to the curb was 18'2" (A.22). Defense counsel had shown Bennett People’s Exhibit 10, a photograph showing a tree and garbage in front of the bodega (A.210–11). Bennett could not remember whether there was anything in front of the store, but claimed that nothing had blocked his view of the bodega (A.211, 213). 12 Defense counsel argued that Morency was not credible, noting her record of fraud-related crimes, including her use of appellant in a scam when he was just 12 or 13 years old (A.352-53). Her testimony that the shooting occurred at 2:00 p.m. was contradicted by the other witnesses and seemed “tailored” to create the impression that the lighting conditions were good (A.354-57, 362). Morency’s refusal to identify appellant in court suggested that he was not the shooter (A.360-61), and her claim that St. Jean uttered appellant’s name was incredible, given DeCarlo’s and Grenardo’s testimony that he was unconscious and unable to speak, as well as the medical examiner’s suggestion that he would have lost consciousness before Morency could get to his side from 40 feet away (A.359-60, 363-64, 370). At defense counsel’s request, the court gave the jury an expanded identification charge (A.444-450). The court submitted one count each of second-degree murder, second- degree criminal possession of a weapon, and third-degree criminal possession of a weapon to the jury (A.451-55). The Deliberations and Verdict At 3:00 p.m. on their first day of deliberations, the jury sent notes requesting readbacks of the testimony of “the first officer at the crime scene” and Terry Bennett (A.466; Court Exhibits 3, 4). Nothing in the record indicates that 13 the court informed the attorneys about the notes or discussed with them how it intended to respond before assembling the jury in the courtroom. At that point, in the jury’s presence, the court said it had “received [the jury’s] notes,” read them into the record (A.466), and immediately informed the jury that it would conduct the readback as follows: To expedite this, and hopefully to keep you awake, what we will do on the direct, I will read the questions, the court [reporter] 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 responses of the witnesses (A.466- 67). The testimony was then read back to the jury with the court posing the prosecutor’s direct examination of Bennett and DeCarlo, and then switching roles with the court reporter and supplying the witnesses’ answers during defense counsel’s cross-examination of them (A.467). In reading the prosecutor’s direct examination questions of Bennett, the trial judge, inter alia, repeated the prosecutor’s question inviting Bennett to identify appellant in court: “[I] want you to take a look around the courtroom right now . . . .I ask you is there anybody that you recognize in the courtroom from that day?” (A.199-00). Because the prosecutor thereafter incorporated Bennett’s identification of 14 appellant into his questions (A.200-06), in reading back those questions, the court expressly identified appellant as the shooter nine times: What did you see that individual, the defendant, what did you see him do? (A.200). *** Sir, during that time [the shooting] were you able to hear whether anybody including the defendant was saying anything? (A.201). *** Now sir, when the defendant was in front of the store and firing those shots, from your perspective where you were sitting in the car could you see at that time whether there was anybody else in the store at that time? (A.201). *** You talked a little bit about what the defendant did after firing the shots. Can you describe that for the jury? (A.202). *** [D]o you recall what hand it was that the defendant handled the gun with, right or the left hand? (A.202). *** Sir, during the time that the defendant passed in front of your car and went to the other side and then backward, did you remain seated in your car? (A.202). *** Let me just ask you, was that before or after the defendant walked away? (A.202). *** 15 Sir, when you got out and you were going toward the store, besides the defendant, did you see anybody else coming out of the store? (A.203). *** Now, the defendant, had you ever seen him before that day, sir? (A.206). The trial judge also read the prosecutor’s question as to whether the person Bennett identified in the lineup was “the same individual who is sitting in court now” (A.206). In switching roles with the court reporter and reading Bennett’s answers to defense counsel’s cross-examination questions, the trial judge read Bennett’s testimony insisting that the lighting conditions were good (A.209), that he was within a few feet of the shooter (A.222), and that there was no foot-traffic or anything else that blocked Bennett’s view (A.211, 213). The trial judge also read Bennett’s testimony that the shooter was “about 5 feet,” stocky, and wearing a coat (A.224-25), as well as his denial that the shooter was in a group, rather than alone, a point defense counsel had sought to make to suggest that Bennett’s identification was not reliable (A.221-22). The trial judge followed the same procedure for DeCarlo’s testimony. Before conducting the readback, the court stated, “[n]ow this is the direct examination by Mr. Hale [the prosecutor] of Officer DeCarlo” (A.467). Although DeCarlo’s testimony was far briefer and more general than Bennett’s, the 16 court read the prosecutor’s questions eliciting that she responded to a call of a “male assaulted” (A.142); the nature of the area (A.143-44, 148-89); the position in which she found St. Jean lying on the deli floor, shot and not moving or speaking (A.144-46); her being detailed to watch “Cookie,” who was “a witness” (A.147); her staying with St. Jean outside the operating room for hours (A.151); and his being pronounced dead (A.151). On cross-examination, the court reporter read defense counsel’s questions as he tried to elicit, inter alia, that people were milling around at the scene, that it took the officers “some yelling or moving” to get through the crowd that it was hard to “calm the crowd down,” and that people kept trying to enter the store after the officers were inside (A.154, 157). The court read Officer DeCarlo’s answers that, in essence, people were just curious, that it was not hard to get through the crowd or calm it, and that people were trying only to look through the deli windows once the officers were inside (A.154, 157). The jury resumed their deliberations (A.467). When the court received another note, it informed the attorneys, on the record outside the jurors’ presence, that they “need[ed] a repeat and clarification of the definition of reasonable doubt” (Court Exhibit 5; A.467). The attorneys declined to be 17 heard (A.467-68), and the court had the jurors brought in and re-instructed them on reasonable doubt (A.468). At 5:55 p.m., the jury convicted appellant of second- degree murder and weapon possession (A.474; Court Exhibit 6). The Appellate Division Decision The Appellate Division, Second Department, affirmed appellant’s conviction, holding that his claims that the court improperly conducted the readbacks and handled the jury notes in violation of People v. O’Rama,78 N.Y.2d 270 (1991), were unpreserved for appellate review. Citing People v. Starling, 85 N.Y.2d 509 (1995), it found that, “[s]ince the jury merely requested read-backs of certain trial testimony,” any O’Rama error did not constitute a mode of proceedings error (A.1). On June 25, 2012, the Honorable Victoria A. Graffeo granted appellant leave to appeal to this Court (A.3). ARGUMENT THE COURT DENIED APPELLANT’S DUE PROCESS RIGHTS TO A JURY TRIAL AND A FAIR TRIAL BY (A) PERSONALLY ASSUMING THE PROSECUTOR’S ROLE DURING READBACKS OF THE DIRECT TESTIMONY OF TWO PROSECUTION WITNESSES, AND THEN SWITCHING ROLES WITH THE COURT REPORTER TO READ THOSE WITNESSES’ CROSS-EXAMINATION ANSWERS; AND (B) FAILING TO FIRST ADVISE COUNSEL OF ITS INTENDED, UNORTHODOX READBACK PROCEDURE BEFORE ADDRESSING THE JURY. 18 Although it was entirely unnecessary to clarify confusing testimony or law, and served no other legitimate purpose, the trial judge actively participated in the readbacks of two critical prosecution witnesses, Terry Bennett and Officer Jacqueline DeCarlo, by reading the prosecutor’s direct examination questions and then the cross-examination responses of both witnesses. In taking the prosecutor’s role in rereading the direct examination, the court, inter alia, affirmatively equated appellant with the shooter on nine occasions. And, in switching roles with the court reporter for the rereading of the cross-examination, it repeated the witnesses’ denials of propositions the defense sought to establish. This unbalanced and prejudicial participation in the readback procedure could only have conveyed that the court was aligned with the prosecution, thus bolstering the People’s identification case and undercutting appellant’s misidentification defense. By personally participating in the readbacks, and especially by doing so in an uneven manner, the trial judge failed to properly execute his supervisory role and to remain a neutral arbiter during deliberations, thereby depriving appellant of his due process rights to a fair trial and a trial by jury. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6. Because the right to a trial by jury is a fundamental right affecting the organization of the court and established 19 mode of proceedings, no objection was required to preserve this issue for this Court’s review. The court also failed to inform defense counsel that it had received the jury notes requesting the readbacks, and that it planned to actively participate in those readbacks, until it began addressing the jury. Defense counsel had no way to anticipate the substance of the court’s intended response because it represented a complete departure from the long- standing tradition of having the court reporter alone conduct a readback. Under these circumstances, the court deprived defense counsel of the right to be heard, and therefore failed to comply with its core responsibilities under C.P.L. § 310.30, committing a mode of proceedings error. People v. O’Rama, 78 N.Y.2d 270 (1991). (A) While a trial judge may sometimes take a “more active role” in the presentation of evidence, that participation must be necessary to aid in the “truth-seeking process.” See People v. Arnold, 98 N.Y.2d 63, 67 (2002); People v. Yut Wai Tom, 53 N.Y.2d 44 (1981); People v. Jamison, 47 N.Y.2d 882, 883 (1979); People v. Moulton, 43 N.Y.2d 944 (1978). The trial judge may participate in order to help clarify a confusing issue, avoid misleading the trier of fact, or restrict “the proof to reasonable bounds.” Jamison, 47 N.Y.2d at 883. The judge’s “wide” discretion in directing the 20 presentation of evidence during the course of the trial may include asking questions of a seated witness, recalling a witness to the stand, or even calling his or her own witness. Arnold, 98 N.Y.2d at 67; Yut Wai Tom, 53 N.Y.2d 44; People v. Mees, 47 N.Y.2d 997, 998 (1979); Thom v. Jaymee Fashions, 35 A.D.2d 946 (1st Dep’t 1970), aff’d, 29 N.Y.2d 534 (1971); People v. Kovzelove, 242 A.D.2d 477 (1st Dep’t 1997), lv. denied, 91 N.Y.2d 875 (1997). When the trial court plays an active role, however, it “must exercise [its] discretion appropriately and without prejudice to the parties.” Arnold, 98 N.Y.2d at 67. This is critical because, when judges actively participate in a trial, jurors are “extremely likely to be impregnated by the environing atmosphere.” People v. De Jesus, 42 N.Y.2d 519, 523 (1977) (citations omitted). There is always the risk that the judge’s conduct, in “the form of words, actions or demeanor,” will “itself become the irrelevant subject of the jury’s focus.” Id. at 523. Therefore, the power to clarify or present evidence must be “exercised sparingly, without partiality, bias, or hostility.” Jamison, 47 N.Y.2d at 883, citing Carter, 40 N.Y.2d 933, 934 (1976). Care must be taken, moreover, to avoid creating even the suggestion that the judge has an opinion about the merits of the case, which could be “decisive” in the minds of the jury. De Jesus, 42 N.Y.2d at 524; see, Moulton, 43 N.Y.2d at 944. 21 The trial judge’s failure to act in a manner “scrupulously” free from even the appearance of partiality violates the defendant’s right to a “fair and impartial trial before an unbiased court and an unprejudiced jury, [which] is a fundamental principle of criminal jurisprudence.” De Jesus, 42 N.Y.2d at 523, quoting People v. McLaughlin, 150 N.Y. 365, 375 (1896); Moulton, 43 N.Y.2d at 945. The American Bar Association Standards provide for similar restraints on judicial behavior in the courtroom, requiring that the trial judge “[b]e a model of dignity and impartiality.” Criminal Justice Standards, A.B.A. § 6-3.4. The trial judge “should exercise restraint over his or her conduct and utterances,” and “remain neutral regarding the proceedings at all times, suppress[ing] personal predilections. . . .” Id. Thus, in reversing the defendant’s conviction in People v. Yut Wai Tom, 53 N.Y.2d at 57, this Court noted that, despite the court’s authority to clarify confusing testimony and facilitate “the order and expeditious progress of a trial,” it had failed to do so “sparingly,” and its persistent, excessive, and unwarranted participation in the examination of several prosecution witnesses deprived the defendant of a fair trial. Likewise, in People v. De Jesus, 42 N.Y.2d at 523, the trial judge’s “unnecessary and excessive interference in the presentation of proof, as well as the 22 intimidation or denigration of counsel,” deprived the defendant of a fair trial. In sharp contrast, when this Court has found judicial intervention to be appropriate, the judge intervened in an impartial way. In People v. Jamison, 47 N.Y.2d 882, for example, the trial judge acted even-handedly, not singling out either side, and intervened only as was necessary to aid the jury in understanding the legal and factual issues presented. Thus, while the judge has wide discretion to play an active role during the presentation of evidence, he or she must do so only when necessary, and then in an even-handed manner, without conveying even the appearance that the judge has an opinion that could prejudice the defendant. Arnold, 98 N.Y.2d at 67; Yut Wai Tom, 53 N.Y.2d 44; Jamison, 47 N.Y.2d 882; De Jesus, 42 N.Y.2d at 523. Once the case proceeds to deliberations, the trial is in a different, even more sensitive, posture, and the trial judge must exercise the “utmost” care in dealing with the jury. See People v. Olsen, 34 N.Y.2d 349, 353 (1974). Deliberations are “critical, post-submission proceedings,” and the manner in which they are conducted can easily determine the case’s outcome, creating a particularly real possibility of prejudice to a defendant. People v. Cook, 85 N.Y.2d 928 (1995); People v. O’Rama, 78 N.Y.2d 270, 277 (1991); People v. Torres, 72 23 N.Y.2d 1007 (1988); People v. Ahmed, 66 N.Y.2d 307 (1985); People v. Ciaccio, 47 N.Y.2d 431, 436 (1979). The critical distinction between court action before and during deliberations is illustrated by this Court’s decision in People v. Olsen, 34 N.Y.2d 349, involving the late presentation of prosecution testimony. In Olsen, the trial court allowed the prosecutor to recall a witness during deliberations for the purpose of giving additional testimony bearing on the witness’s credibility. This Court held that reopening the case at the critical juncture of deliberations presented “a problem of a different order” from allowing reopening before deliberations begin. Id. at 353. At the deliberations stage, the court’s power “must be exercised with utmost caution” because jurors might give the additional evidence undue weight. Id. In reversing Olsen’s conviction, the Court cautioned that, for “obvious reasons,” recalling a witness during deliberations is “not to be encouraged or lightly pursued.” Olsen at 353, quoting People v. Ferrone, 204 N.Y.551, 553 (1912). [N]ew evidence introduced during the jury’s deliberations is likely to be given “undue emphasis with consequent distortion of the evidence as a whole” giving rise to the real possibility of prejudice to the party against whom it is offered. 24 Id. at 353, quoting Eason v. United States, 281 F.2d 818, 822 (9th Cir. 1960). Cf. People v. Arnold, 98 N.Y.2d 63, 68 (although it was an abuse of discretion for court to call its own witness before deliberations began in Arnold, generally court may do so before deliberations, provided it states its reasons on the record and solicits comments from the parties to eliminate potential prejudice). This Court has also required trial judges to proceed with greater care in other respects. For example, instructions given during deliberations, which “may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves,” must be given by the trial judge, not court personnel. Ciaccio, 47 N.Y.2d at 436; See also Parker v. Gladden, 385 U.S. 363 (1966)(ex parte communication regarding case by bailiff to jurors during recess constituted reversible error). In the context of jury notes sent during deliberations, trial courts must follow a protocol devised by this Court to ensure that defense counsel receives meaningful notice, which is essential to counsel’s ability to “ensure the protection of the client’s constitutional and statutory rights.” O’Rama, 78 N.Y.2d at 277; see People v. Tabb, 13 N.Y.3d 852 (2009); People v. Kisoon, 8 N.Y.3d 129 (2007); Cook, 85 N.Y.2d 928; C.P.L. § 310.30. Additionally, the trial judge may not leave 25 the courtroom and delegate his or her responsibility to respond to jury notes to a law secretary. Ahmed, 66 N.Y.2d 307. Historically, then, this Court has viewed deliberations as a particularly critical stage of the trial. Its holdings convey the consistent theme that they must occur in a manner likely to produce a verdict based solely on the evidence, without any extraneous influences that could prejudice the defendant or subvert his constitutional right to a jury that fairly and freely determines his guilt or innocence. O’Rama, 78 N.Y.2d 270; Ahmed, 66 N.Y.2d 307; Ciaccio, 47 N.Y.2d 431; Olsen, 34 N.Y.2d 349. Readbacks, an important part of deliberations, involve the jury’s work in sifting through the evidence to reach a just verdict. People v. Lourido, 70 N.Y.2d 428 (1987)(court’s failure to respond meaningfully to a readback may seriously prejudice the defendant and require a reversal). See also People v. Lewis, 262 A.D.2d 584 (2d Dep’t 1999); People v. Smith, 248 A.D.2d 413 (2d Dep’t 1998). A jury’s request that certain testimony be read back to them suggests that they are focusing “on some weakness in the proof. . . .” Olsen, 34 N.Y.2d at 355. Therefore, like other important events during deliberations, readback requests during this critical stage must be handled with the “utmost caution” and scrupulous even- 26 handedness, not in a manner likely to suggest that the trial judge has an opinion as to the case’s merits. It has been 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. See, e.g., People v. Cruz, 14 N.Y.3d 814 (2010)(court directed court reporter to read back testimony); People v. Hernandez, 94 N.Y.2d 552, 553 (2000)(same); People v. Gallo, 12 N.Y.2d 12 (1962); People v. Dixon, 231 N.Y. 111, 118 (1921); People v. Smith, 10 N.E. 873, 875 (1887); People v. Rivera, 41 A.D.3d 347 (1st Dep’t 2007); People v. Roman, 149 A.D.2d 305, 307(1st Dep’t 1989); People v. Grant, 42 A.D.2d 736 (2d Dep’t 1973). This conventional method avoids creating even the appearance of bias by the trial judge. Indeed, in People v. Brockett, 74 A.D.3d 1218, 1221 (2d Dep’t 2010), the Appellate Division, Second Department, implicitly endorsed it and cautioned that, during a readback of testimony, a trial judge should not “assum[e] the role of a witness or inquiring counsel,” or “he or she may unwittingly and erroneously convey to the jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back.” Id; see also, People v. Paperno, 90 A.D.2d 168, 179 (1st Dep’t 1982)(court should have taken the “simple step” of having court reporters not prosecutor read back testimony). 27 In appellant’s case, the jury, apparently focusing on potential weaknesses in the People’s proof, Olsen, 34 N.Y.2d at 355, requested a readback of the testimony of two key prosecution witnesses, Bennett and Officer DeCarlo. But rather than have the court reporter conduct the readback, the court personally read the prosecutor’s direct examination questions to Bennett and DeCarlo. Then, instead of similarly assuming the role of defense counsel, the court switched roles with the court reporter for the rereading of the cross- examination. It now took on the role of the prosecution witnesses by reading Bennett’s and DeCarlo’s answers, many of which rejected defense counsel’s suggestions. By unnecessarily injecting itself into the readback procedure, and especially 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. It therefore appeared to endorse the prosecutor’s position that appellant was the shooter. Brockett, 74 A.D.3d at 1221. By conducting the readback in this highly prejudicial manner, the court deprived appellant of his rights to a fair trial and a trial by jury. See Ahmed, 66 N.Y.2d at 310. 28 The court’s personal participation in the readback served no legitimate purpose: it was done neither to clarify the facts or law, nor to aid in the truth-seeking process. Yut Wai Tom, 53 N.Y.2d 44; Jamison, 47 N.Y.2d at 883. Obviously, a readback does not involve elucidating testimony or law, but rather the literal rereading of testimony already given. As the trial judge explained, he conducted the readback to “expedite” the process and “keep the jurors awake” -– not to clarify confusing testimony or aid in the truth-seeking process. While a judge may intervene to expedite the proceedings, however, De Jesus, 42 N.Y.2d at 523, there is no reason to believe that readbacks conducted by two readers are appreciably faster than readbacks conducted by one. And there was no reason to believe that the jurors, who had explicitly focused on and requested these portions of the testimony, would fall asleep or otherwise fail to pay attention to the readbacks. Even if this were a legitimate concern, moreover, the court could have countered any such problem by giving the jury a break during the readbacks. Cf. People v. Ellis, 62 A.D.2d 469, 471 (1st Dep’t 1978)(it was “not for the trial justice, no matter how well motivated, to usurp the role of counsel for either side in a criminal trial because of the court’s conception as to how the case should be presented”). 29 Furthermore, even assuming that having two readers could somehow streamline the process or keep the jurors better focused, other court personnel could have been enlisted for that purpose. No concerns began to justify the trial judge personally participating in readbacks, given the dangers of suggesting his partiality during this critical stage of the trial. See Olsen, 34 N.Y.2d at 349; Brockett, 74 A.D.3d at 1221. The trial judge’s personal participation in the readbacks was not only unnecessary, as it would be in any case, but also created the “real possibility” of prejudice to appellant because of the manner in which it was undertaken here, with the court readily assuming the prosecution’s role, but eschewing that of defense counsel. In reading back the prosecutor’s direct examination questions of Bennett, the trial judge explicitly equated appellant with the shooter nine times, thereby repeatedly seeming to endorse the reliability of Bennett’s identification. For example, the court asked Bennett, in three separate questions, what “the defendant” did and said during and after the shooting (A.200-02). Repeating the prosecutor’s introduction to another question, the court stated, “when the defendant was in front of the store firing the shots. . . ” (A.201). The court continued to link appellant directly to 30 the shooting by asking whether anyone other than “the defendant” came out of the store, and in which hand “the defendant” held the gun (A.202-03). Again assuming appellant’s identity as the shooter, the court repeated the prosecutor’s question about whether Bennett had remained in his car when “the defendant” walked past it (A.202). The court also reread the prosecutor’s elicitation that Bennett had identified appellant in a lineup (A.206). Thus, when the court read the prosecutor’s questions during the readback, it necessarily appeared to assume the reliability of Bennett’s identification, as the prosecutor had in asking those questions. While the prosecutor may function as an advocate, however, the court may not do so because of the prejudice to the defense. Arnold, 98 N.Y.2d at 68 (it is reversible error for the court, even unintentionally, to give one side an advantage). When, instead of reading defense counsel’s questions on cross-examination, the court suddenly switched roles from examiner to witness, the jury could only have concluded that the judge felt comfortable with the prosecutor’s position in this case, but not with that of defense counsel. Now that the questions were designed to undermine the reliability of Bennett’s identification instead of establish it, it was no longer the judge asking the questions. Instead, he now read 31 Bennett’s cross-examination answers -– answers that tended to reinforce the reliability of his identification and contradict any suggestions defense counsel made that his opportunity to observe the shooter was limited or that his identification of appellant was mistaken. In switching roles, the trial judge could only have furthered the impression that he agreed with the People and endorsed the reliability of Bennett’s identification of appellant. The court followed the same readback procedure with DeCarlo’s testimony. In rereading the prosecutor’s questions to the police officer, the court affirmatively solicited pro- prosecution answers regarding the “assault,” St. Jean’s helpless condition and position on the deli floor, and his death after surgery. It then switched roles with the court reporter and read DeCarlo’s answers to defense counsel’s questions, answers that frustrated the defense’s attempt to show that the gathering crowd might have hindered the police investigation. By improperly reading back the questions and testimony of these prosecution witnesses, the trial judge risked becoming a powerful, dramatic, and persuasive conduit of the prosecution’s theory of identification during the critical stage of deliberations. However good the judge’s intentions might have been, the risk that the jurors would place undue 32 emphasis on his one-sided reading of this testimony was inescapable. Olsen, 34 N.Y.2d 349. The judge might also have “inadvertently convey[ed] to the jury” his belief or disbelief of a witness “by his reaction to an answer [or] by his phrasing of questions and tone of voice,” especially when his stated purpose was to enliven the readback. Yut Wai Tom, 53 N.Y.2d at 57. And, because the court’s tone and emphasis on words could not have been identical to that used by the actual witnesses, the court might also have inadvertently altered the evidence adduced at trial. Yut Wai Tom, 53 N.Y.2d at 58 (judge’s job is to protect the record, not make it). This was the last impression the jurors had of Bennett’s and DeCarlo’s testimony, which they themselves had chosen to focus on in reaching a verdict. “In short, the risks of unfairness are so many and potentially so great” that the judge should not have personally participated in the readback. Yut Wai Tom, at 57. In affirming appellant’s conviction, the Appellate Division found his claim that the court improperly participated in the readbacks unpreserved for appellate review (A.1). Because the court improperly executed its supervisory role during deliberations, however, and effectively appeared to become an advocate for the prosecution, it violated 33 appellant’s right to a jury trial, fatally affecting the organization of the court and established mode of proceedings. See People v. Toliver, 89 N.Y.2d 843 (1996); People v. Ahmed, 66 N.Y.2d 307. While preservation is ordinarily essential to the exercise of this Court’s jurisdiction, certain deviations from mandated procedural, structural, and process-oriented standards affect the organization of the court or the mode of proceedings prescribed by law and present a question of law, even without objection. People v. BeCoats, 17 N.Y.3d 643 (2011); People v. Kelly, 5 N.Y.3d 116 (2005); Toliver, 89 N.Y.2d 843; People v. Patterson, 39 N.Y.2d 288 (1976); Ahmed, 66 N.Y.2d at 310; N.Y. Const., Art. VI § 3(a); C.P.L. §§ 470.35(1), 470.05(2). Although fundamental defects are a “narrow category,” they include those that affect the “essential validity of the proceedings” to such an extent that “the entire trial is irreparably tainted.” People v. Agramonte, 87 N.Y.2d 765, 770 (1996) (citations omitted); Patterson, 39 N.Y.2d 288; O’Rama, 78 N.Y.2d 270; Ahmed, 66 N.Y.2d at 310. They also include errors that “implicate the fundamental rights that are an integral part of the trial itself,” Agramonte 87 N.Y.2d at 770, quoting People v. Webb, 78 N.Y.2d 335 (1991), such as the right to trial by jury. Ahmed, 66 N.Y.2d at 310. 34 This Court has held that, since “an integral component” of the right to a jury trial is the supervision of the judge, “the failure of a judge to retain control of deliberations” impacts the constitutional guarantee of trial by jury, the organization of the court, and the mode of proceedings prescribed by law. Ahmed, 66 N.Y.2d at 310. In Ahmed, the trial judge’s absence and delegation of his responsibilities during deliberations implicated his “substantive role” in conducting the trial itself, and required no objection. See also People v. Bayes, 78 N.Y.2d 546 (1991)(mode of proceedings error when court improperly surrendered a non-delegable responsibility in allowing attorneys to answer jury’s questions during deliberations); People v. Parisi, 276 N.Y. 97 (1937)(same, when trial judge absented self from courtroom during deliberations, and had stenographer dictate exceptions to his charge). Thus, the trial judge’s failure to properly execute his or her supervisory role over a deliberating jury implicates the defendant’s right to a trial by jury and affects the organization of the court.5 5 An entirely different scenario is presented when the judge is not present in the courtroom during readbacks. In such a case, the judge is not interfering at all in the trial, and therefore, he or she cannot possibly create the appearance of partiality. If anything, the judge in absenting him or herself is suggesting to the jury that he or she is actually disinterested in the readback process and the outcome of the case. People v. Hernandez, 94 N.Y.2d 552 (2000)(judge’s absence during readbacks, although disfavored, was not a mode 35 Part of the trial judge’s substantive and supervisory role during deliberations is to remain a neutral arbiter of the proceedings to ensure that a verdict is reached on the evidence alone. “The judge is a most important part of a court” and has a defined role in the trial. See Parisi, 276 N.Y. at 100; People v. Dohring, 59 N.Y. 374 (1874). A trial judge should not step out of his or her supervisory role during the deliberations to participate in a readback, because doing so poses a threat to the orderly trial process and affects the defendant’s right to a trial by jury. Here, moreover, by taking on the role of the prosecutor, and then the prosecution witnesses, during the readbacks, the trial judge failed to properly execute his neutral supervisory role at the trial. Dohring, 59 N.Y. 374 (trial judge’s testifying sidestepped traditional role of judge as supervisor and neutral arbiter). The court’s one-sided participation in the readback was not merely a “failure to adhere to statutorily or constitutionally grounded procedural protections.” Kelly, 5 N.Y.3d at 120; Webb, 78 N.Y.2d at of proceedings error because it did not prevent the performance of an essential, non-delegable function); People v. Monroe, 90 N.Y.2d 982 (1997)(trial judge’s absence while jury viewed exhibits already in evidence was not a mode of proceedings error because court retained control by issuing instruction sufficient to dispel the possibility of premature deliberations). 36 340. Rather, it hopelessly tainted “a part of the process essential to the form and conduct of the actual trial” itself. Agramonte, 87 N.Y.2d at 770. Requiring an attorney to object under the circumstances here, moreover, would be particularly unfair. The jury had already been returned to the courtroom when the court announced its unorthodox plan. Defense counsel was thus placed in an untenable position, where an objection could easily telegraph to the jury that counsel believed the judge would be conveying his personal belief in the prosecution. And, as noted post, at pages 38-45, the court’s procedure in handling the jury notes strongly suggested that it would not alter its already-stated plan to personally engage in the readbacks. In sum, the trial judge unnecessarily participated in the readback of testimony by two prosecution witnesses. It did so, moreover, in a patently uneven way that could only have communicated to the jury that it personally believed appellant was the shooter and disbelieved appellant’s misidentification defense. Because the court failed to discharge its supervisory role during deliberations properly, it denied appellant’s fundamental right to a trial by jury, and an objection was not required to preserve the issue for this Court’s review. 37 (B) In order to have the opportunity to provide specific input about a jury note, defense counsel must be aware of the substance of the court’s intended response before the court addresses the jury. C.P.L. § 310.30; People v. Starling, 85 N.Y.2d 509 (1995); People v. O’Rama, 78 N.Y.2d 270 (1991). Here, the court failed to inform defense counsel that it had received two jury notes requesting readbacks, and that it intended to actively participate in those readbacks, until it began addressing the jury. Because the court’s response to the jury notes represented a complete departure from the long-standing tradition of having a court reporter conduct a readback, defense counsel had no way to anticipate the substance of the court’s intended response. Under these circumstances, the court completely deprived defense counsel of the right to be heard, and therefore failed to comply with its core responsibilities under C.P.L. § 310.30, committing a mode of proceedings error. O’Rama, 78 N.Y.2d 270. Criminal Procedure Law § 310.30 allows the jury, during its deliberations, to request 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. 38 The statute also mandates that, when the jury sends a request, the trial court must give notice to the People and the defendant’s attorney before responding to the note. C.P.L. § 310.30. The notice requirement has “equally important” purposes: to ensure counsels’ presence in the courtroom when the response is given, and to provide counsel, who is “best equipped and most motivated to evaluate the inquiry and the proper responses in light of the defendant’s interests,” with “the opportunity to be heard before the response is given.” Id. at 277; see also People v. Cook, 85 N.Y.2d 928 (1995). Deliberations are “critical, post-submission proceedings,” and therefore, the notice requirement of Criminal Procedure Law § 310.30 “is not a mere formality.” O’Rama, 78 N.Y.2d at 276-77. Rather, the trial court is required to give “meaningful notice” of a jury note. To ensure that counsel receives meaningful notice, the Court endorsed the procedure set forth in United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981): Whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before (emphasis in original) the jury is recalled to the courtroom, read into the record in the presence of counsel * * * * After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses * * * [T]he trial court should ordinarily apprise counsel of the 39 substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made. O’Rama, 78 N.Y.2d at 277-78. While this Court has allowed for some deviation from the O’Rama protocol, it has recognized that both the absence of notice of a jury note and the refusal to give defense counsel the opportunity to provide specific input on the note are “inherently prejudicial.” People v. Kisoon, 8 N.Y.3d 129, 135 (2007)(trial court’s paraphrasing of a jury note deprived defense of meaningful notice); O’Rama, 78 N.Y.2d at 280 (mode of proceedings error when court failed to disclose exact contents of notes to attorneys); see Cook, 85 N.Y.2d 928 (same, when court prevented counsel from giving input on instruction to jurors). Thus, when either occurs, the court has not complied with its “core responsibilities,” and the issue is reviewable on appeal as a matter of law even in the absence of an objection. Kisoon, 8 N.Y.3d 129; People v. Tabb, 13 N.Y.2d 852 (2009); Cook, 85 N.Y.2d 928. 40 In order to provide defense counsel with the meaningful opportunity to give specific input on a jury note, the court must inform defense counsel of the substance of the court’s intended response before it is given to the jury. Counsel must, at the least, have constructive notice of the court’s intended response, so that he or she can reasonably anticipate it and intelligently participate in its framing. See Starling, 85 N.Y.2d 509 (1995); People v. Lykes, 81 N.Y.2d 767 (1993) (involving court’s request for clarification of jury note, which did not give information about the law or facts of the case, and was followed by a charge previously given); see also People v. Ramirez, 15 N.Y.3d 824 (2010)(defendant had notice of contents of note and intended response, so no mode of proceedings error). Notably, this Court has never authorized a departure from the O’Rama protocol to the extent that the court fails to inform defense counsel of a note’s contents, reveals it in only the jury’s presence, and then gives a completely unanticipated response. Here, that is precisely what occurred. The court did not give notice of the notes, much less its wholly unorthodox planned response, before convening the jury. Only in the jury’s presence did defense counsel learn that the court intended to read the prosecutor’s direct- examination questions of Bennett and DeCarlo, and then switch 41 roles with the court reporter to read their cross-examination answers. Counsel had no way to know in advance that the court intended to abandon the traditional, standard course of having the court reporter conduct the readback. To the contrary, based on common experience, counsel would have reasonably anticipated that the court would do as courts have done from time immemorial. That the court did not inform defense counsel of its novel readback plan before telling the jury of it could only have conveyed to the defense that any request for a different procedure would be both unwelcome and unsuccessful. See, Cook 85 N.Y.2d 928; People v. Lockley, 84 A.D.3d 836, 838 (2d Dep’t 2011) (the reading of jury notes requiring a substantive response for the first time in front of the jury and immediately providing a formal response was “effectively the same as telling defense counsel that he had no right to participate in suggesting a response” to the jury notes).6 6People v. Kardarko, 14 N.Y.3d 426 (2010), further supports the view that, when the court shares its plan with the attorneys and gives the opportunity to be heard before convening the jury, it complies with its core responsibilities under O’Rama. In Kadarko, the court had explained to the attorneys, outside the presence of the jury, that a note contained a numerical breakdown of the jury’s division, but stated that it would not show the note to the attorneys until after it delivered an Allen charge. After an explicit opportunity to be heard on the note, defense counsel did not object to this practice. Although the trial court did not 42 Allowing a trial court to engage in such a material deviation from the O’Rama protocol can only erode the protection of defendants’ constitutional and statutory rights. When counsel is caught off-guard and learns of the court’s intended response only in the presence of the jury, his ability to meaningfully participate in framing a response, far from being maximized, is utterly circumscribed. Lykes, 81 N.Y.2d at 769 (O’Rama “guidelines [were] calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response”). The Appellate Division found that, “[s]ince the jury merely requested read-backs of certain trial testimony, the alleged error did not constitute a mode of proceedings error” (A.1). The Second Department’s blanket treatment of readback requests as merely ministerial, People v. Gerrara, 88 A.D.3d 811 (2d Dep’t 2011); People v. Bryant, 82 A.D.3d 1114 (2d fully comply with the O’Rama protocol in failing to show counsel the note in advance of addressing the jury, counsel had both meaningful notice of the note and an opportunity to be heard, and therefore any error required preservation. In contrast, here, the court neither informed counsel of its plan to participate in the readbacks or gave him an opportunity to be heard before addressing the jury. See also People v. DeRosario, 81 N.Y.2d 801 (1993)(preservation applied because court’s action did not totally deprive counsel of meaningful notice, when counsel was present, given notice of, and helped participate in formulating responses to written requests). 43 Dep’t 2011), however, is contrary to O’Rama and C.P.L. § 310.30.7 As this Court recognized in Lourido, 70 N.Y.2d 428, and Olsen, 34 N.Y.2d at 355, readbacks play an important part in the jury’s assessment of the evidence. See also People v. Smith, 248 A.D.2d 413 (2d Dep’t 1998)(court’s complete failure to respond to readback request was reversible error). And O’Rama and its progeny make clear that the meaningful notice requirement addresses the impact instructions have on deliberations and the verdict. Cook, 85 N.Y.2d 928; O’Rama, 78 N.Y.2d 270. An analysis that turns on the nature of the note alone, without reference to the court’s response to it, ignores the impact that the court can have on the jury in imparting information, even when the note requests a readback. See People v. Kalinowski, 84 A.D.3d 1739 (4th Dep’t 2011)(court failed to comply with its core responsibilities and committed mode of proceeding error by failing to disclose contents of note to attorneys and respond to the note on the record, when 7 The Second Department cited People v. Starling, 85 N.Y.2d 509, in denying appellant’s O’Rama claim. But unlike appellant’s case, Starling did not involve an unanticipated response first revealed in the presence of the jury. Rather, Starling involved the re-issuance of an instruction that had been discussed by the attorneys when the charge was initially given. 44 note was ambiguous and might have sought a readback of testimony, not just exhibits). Counsel should not have been expected to object after the court had already informed the jury of the court’s intention to personally participate in the readback, particularly when doing so would have been futile. The court was well aware of the O’Rama protocol -– it subsequently showed the attorneys the note requesting clarification of reasonable doubt and expressly solicited their input before responding to it. That it went directly to the jury with its response to the readback requests strongly suggests that input from counsel was not welcome. Here, the court’s surprise adoption of a novel and unfair readback procedure, revealed for the first time in front of the jury, constituted a mode of proceedings error, not requiring preservation. Tabb, 13 N.Y.3d 852 (in “the absence of record proof that the trial court complied with its core responsibilities under C.P.L. § 310.30, a mode of proceedings error occurred requiring reversal”). * * * In sum, the court deprived appellant of a fair trial and his right to a trial by jury by personally participating in the readback of testimony of Bennett and DeCarlo in a manner that could only have served to convey its apparent alignment 45 with the prosecution. In addition, the court failed to fulfill its core responsibilities pursuant to C.P.L. § 310.30 by failing to give meaningful notice to defense counsel that it intended to adopt an unusual readback procedure. Appellant is therefore entitled to a new trial. CONCLUSION FOR THE REASONS STATED ABOVE, APPELLANT’S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant MELISSA S. HORLICK Of Counsel September 2012 46 47