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. REPLY 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 February, 2013 i INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1 ARGUMENT C.P.L. § 310.30 DOES NOT AUTHORIZE A TRIAL JUDGE TO PERSONALLY PARTICIPATE IN READBACKS, BUT DOES REQUIRE THE COURT TO INFORM THE PARTIES OF ITS INTENDED RESPONSE TO A JURY NOTE BEFORE CONVENING THE JURY. . . . . . . . . . . . . . . . . . . . 1 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 15 ii TABLE OF AUTHORITIES CASES Pages Krulewitch v. United States, 336 U.S. 440, 453 (1944) . . .7 People v. Agramonte, 87 N.Y.2d 765, 770 (1996) . . . . . .9 People v. Ahmed, 66 N.Y.2d 307 (1985) . . . . . . . . .2, 5 People v. Barteau, 223 A.D.2d 386 (1 Dep’t 1996) . .st .11 People v. Behrmann, 264 A.D.2d 682 (1 Dep’t 1999) . . .st .8 People v. Beirati, 136 Misc.2d 959 (Bx Cty. 1989) . . . . .4 People v. Brockett, 74 A.D.3d 1218, 1221 (2d Dep’t 2010) .4 People v. Calabria, 94 N.Y.2d 519 (2000) . . . . . . . . .7 People v. Carborano, 301 N.Y.39, 42-43 (1950) . . . . . . .7 People v. Ciaccio, 47 N.Y.2d 431, 436 (1979) . . . . .2, 5 People v. Cook, 85 N.Y.2d 928 . . . . . . . . . . .3, 11, 14 People v. Dixon, 231 N.Y. 111, 118 (1921) . . . . . . . . .5 People v. Dohring, 59 N.Y. 374 (1874) . . . . . . . . . . 8 People v. Gallo, 12 N.Y.2d 12 (1962) . . . . . . . . . . .5 People v. Grant, 42 A.D.2d 736 (2d Dep’t 1973) . . . . . .5 People v. Hernandez, 94 N.Y.2d 552, 553 (2000) . . . . . .5 People v. Kelly, 5 N.Y.3d 116, 120 (2005) . . . . . . . .9 People v. Kisoon, 8 N.Y.3d 129, 135 (2007) . . . . . . .14 People v. Lykes, 81 N.Y.2d 767 (1993) . . . . . . . .11, 12 People v. McGhee, __A.D.3d__, (2d Dep’t, Feb. 6, 2013), WL * 440805 . . . . . . . . . . . . . . . . . . . . . . . . .13 People v. Newman, 46 N.Y.2d 126, 130 (1978) . . . . . . . .7 People v. Olsen, 34 N.Y.2d 349 (1974) . . . . . .2, 5, 8, 9 iii People v. O’Rama, 78 N.Y.2d 270 (1991) . .3, 5, 10, 11, 14 People v. Paperno, 90 A.D.2d 168, 179 (1 Dep’t 1982) .st .4 People v. Parisi, 276 N.Y.97 (1937) . . . . . . . . . . . .8 People v. Rivera, 41 A.D.3d 347 (1 Dep’t 2007) . . . .st .5 People v. Roman, 149 A.D.2d 305, 307(1st Dep’t 1989) . . .5 People v. Smith, 104 N.Y. 491 (1887) . . . . . . . . . . .5 People v. Starling, 85 N.Y.2d 509 (1995) . . . . .3, 12, 13 People v. Torres, 72 N.Y.2d 1007 (1988) . . . . . . . . . .5 People v. Webb, 78 N.Y.2d 335, 340 (1991) . . . . . . . . .9 People v. Yut Wai Tom, 53 N.Y.2d 44, 57 (1981) . . . . . .8 United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981) ..10 STATUTES C.P.L. §310.30 . . . . . . . . . . . . .1, 2, 5, 10, 11, 12 OTHER AUTHORITY McKinney’s Practice Commentary, § 310.30 at p 359-60 . . .3 McKinney’s Con. Laws of New York, Book 1, Statutes § 74 . .3 COURT OF APPEALS THE STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JAMES ALCIDE, : Defendant-Appellant.: ----------------------------------------x PRELIMINARY STATEMENT This brief is submitted in reply to the Brief for Respondent filed on January 18, 2013. ARGUMENT C.P.L. § 310.30 DOES NOT AUTHORIZE A TRIAL JUDGE TO PERSONALLY PARTICIPATE IN READBACKS, BUT DOES REQUIRE THE COURT TO INFORM THE PARTIES OF ITS INTENDED RESPONSE TO A JURY NOTE BEFORE CONVENING THE JURY. (A) During deliberations, the trial judge unnecessarily and uneven-handedly participated personally in the readback of the testimony of two key prosecution witnesses, Terry Bennett and Jacqueline DeCarlo, by reading the prosecutor’s direct examination questions and then inexplicably switching roles to read the witnesses’ answers on cross-examination. As appellant argued in his main brief, by personally participating in the readback in such a one-sided fashion 2 during critical, post-submission proceedings, the trial judge created a “real possibility” of prejudice to appellant. People v. Olsen, 34 N.Y.2d 349 (1974); see also People v. Ciaccio, 47 N.Y.2d 431, 436 (1979). Additionally, the trial judge’s failure during deliberations to properly execute his supervisory role of remaining a neutral arbiter violated appellant’s right to a trial by jury, a mode of proceedings error. See People v. Ahmed, 66 N.Y.2d 307 (1985). In their response brief, the People argue that C.P.L. §310.30 “apparently authorize[d]” the court to personally participate in the readback (Respondent’s Brief at 24-26). But the People’s novel interpretation of C.P.L. § 310.30 wrongly equates the trial judge’s responsibility of providing requested information to the jury with an authorization to personally participate in the readback. This untenable theory of statutory construction is not supported by the statute or case law, and contravenes the well-established, significantly less risky practice of having the court reporter read back the requested testimony. The “clear language” of C.P.L. § 310.30 does not support the People’s argument that a trial judge should or may personally participate in a readback (Respondent’s Brief at 25). Pursuant to the statute, a deliberating jury may request, inter alia, information regarding the “content or C.P.L. § 310.30 provides that: 1 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 contents 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. 3 substance of any trial evidence” and the court “must give such requested information” on notice to counsel and in the presence of the defendant. While C.P.L. § 310.30 empowers a1 deliberating jury to request a readback, and provides that the court must meaningfully respond to the request and “give” the requested information, it does not direct that a trial judge should personally participate in the readback. See McKinney’s Practice Commentary, § 310.30 at p 359-60; People v. Starling, 85 N.Y.2d 509 (1995); People v. O’Rama, 78 N.Y.2d 270 (1991); People v. Cook, 85 N.Y.2d 928 (1995). Had the legislature intended to authorize a departure from the long-standing practice of having the court reporter conduct the readback, it would have indicated such an intent in the clear language of the statute. McKinney’s Con. Laws of New York, Book 1, Statutes § 74 (“[T]he failure of the legislature to include a matter within a particular statute may be construed as an indication that its exclusion was 4 intended”); People v. Beirati, 136 Misc.2d 959 (Bx Cty. 1989)(if legislature intends a particular result, it will use specific language “pointing to such a result”). Because there is no language in C.P.L. § 310.30 regarding how a readback should be conducted, there is no support for the People’s claim that the statute authorized the trial judge to personally participate in the readback. Significantly, the People fail to cite a single case in which an appellate court has interpreted the statute to mean that the trial judge is expected to participate in readbacks during deliberations (Respondent’s Brief at 24-26). Rather, the First and Second Departments have implicitly endorsed the traditional procedure of having the court reporters read back questions and answers to the jury. See People v. Brockett, 74 A.D.3d 1218, 1221 (2d Dep’t 2010) (cautioning 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 readback”); People v. Paperno, 90 A.D.2d 168, 179 (1 Dep’t 1982)(court should have taken the “simple step”st of having court reporters, not prosecutor, read back testimony). While the custom of having the court reporter handle the2 readback may have originated because only the court reporter could decipher his or her own notes (Respondent’s Brief at 26), daily copy has been widely available in trials for decades. Yet, court reporters, not trial judges, still routinely read back testimony. See, e.g., Hernandez, Rivera, Roman, supra. 5 These cases align with the preferred, historical, and non-controversial practice of having the court reporter read back the testimony. People v. Smith, 104 N.Y. 491 (1887); see, e.g., 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. Rivera, 41 A.D.3d 347 (1 Dep’t 2007); People v. Roman, 149 A.D.2d 305, 307(1stst Dep’t 1989); People v. Grant, 42 A.D.2d 736 (2d Dep’t 1973).2 Even assuming arguendo that C.P.L. § 310.30 authorizes a trial judge to personally participate in a readback, the trial judge must still do so in an even-handed way, so as to avoid creating the real possibility of prejudice to a defendant during the most sensitive stage of the trial. People v. Olsen, 34 N.Y.2d 349, 353 (1974). See also, People v. Cook, 85 N.Y.2d 928; People v. O’Rama, 78 N.Y.2d at 277; People v. Torres, 72 N.Y.2d 1007 (1988); People v. Ahmed, 66 N.Y.2d 307 (1985); People v. Ciaccio, 47 N.Y.2d 431, 436 (1979). As appellant detailed in his main brief (Appellant’s Brief at 30-33), here, the court readily assumed the prosecution’s role by reading the prosecutor’s direct 6 examination questions of eyewitness Terry Bennett and Officer Jacqueline DeCarlo, but eschewed that of defense counsel by switching sides to read their cross-examination answers. In reading the prosecutor’s questions of Bennett, the trial judge explicitly named appellant as the shooter 9 times, posing questions that had sought to reinforce Bennett’s credibility and his reliability as an identification witness. Then, rather than reading defense counsel’s cross-examination questions, the judge switched roles to read Bennett’s cross- examination answers, answers that had thwarted the defense’s attempt to establish that Bennett’s opportunity to observe the shooter was limited or that he was mistaken in identifying appellant as the shooter. The court then followed the same unorthodox procedure regarding Officer DeCarlo, the first officer on the scene, who supplied pro-prosecution details on direct, but frustrated the defense’s efforts on cross-examination to suggest that there were difficulties in the police investigation. Regardless of whether the statute could possibly be construed as authorizing the trial judge to personally participate in the readbacks, this imbalanced and uneven approach deprived appellant of a fair trial. The People offer no argument to justify the court’s one-sided participation in the readback. They contend only that the court’s boilerplate 7 preliminary and final instructions to the jury, inter alia, that it had no opinion, ensured that its participation in the readback did not affect the verdict (Respondent’s Brief at 29- 31). But it is “extremely unlikely that preliminary instructions would carry much weight in the jury room.” People v. Newman, 46 N.Y.2d 126, 130 (1978). And curative instructions “cannot always assure elimination of the harm already occasioned.” People v. Calabria, 94 N.Y.2d 519 (2000), quoting People v. Carborano, 301 N.Y.39, 42-43 (1950); see also, Krulewitch v. United States, 336 U.S. 440, 453 (1944)(it is a “naive assumption that prejudicial effects can be overcome by instructions to the jury”). Here, because the court’s general preliminary and final instructions to the jury were issued well before deliberations began and were not specifically directed at the court’s personal participation in the readback, the instructions could not have eliminated the prejudice resulting from that participation. The court’s only remark specifically directed at the readback was that it intended to participate to expedite the process and help keep the jurors awake (Respondent’s Brief at 31-32). But this single comment from the court could not cure or begin to explain why the court chose to switch sides during the readback. 8 In any event, no instruction could have cured the prejudicial impact of the trial judge acting in obvious alignment with the prosecutor but not defense counsel, during the most sensitive stage of the trial. See People v. Behrmann, 264 A.D.2d 682 (1 Dep’t 1999)(noting that, “in ast jury trial, a readback request requires a careful response to insure that the appropriate information, and nothing inappropriate reaches the jury”). The People further argue that People v. Olsen, 34 N.Y.2d 349 (1974), is inapplicable here because there is “no persuasive explanation” as to why a readback by the court reporter and trial judge, but not one by the court reporter alone, is comparable to the submission of prejudicial new evidence (Respondent’s Brief at 37-38). When a court reporter conducts a readback, however, there is no danger that he or she will influence the verdict, because jurors have no interest in the court reporter’s opinion of the defendant’s guilt or innocence. In contrast, the trial judge is the most powerful, important person in the courtroom, People v. Parisi, 276 N.Y.97 (1937); People v. Dohring, 59 N.Y. 374 (1874), who can significantly affect the verdict by even inadvertently suggesting his or her opinion. People v. Yut Wai Tom, 53 N.Y.2d 44, 57 (1981). Olsen underscores the importance of the trial judge exercising the “utmost caution” during 9 deliberation to avoid creating the “real possibility of prejudice.” Olsen, at 353. Appellant does not argue, as Respondent contends, that “every mistake during deliberations constitutes a mode of proceedings error” (Respondent’s Brief at 34-35). Rather, appellant’s point is that, by engaging in a one-sided participation in the readback, the trial judge stepped out of his supervisory role as a neutral arbiter, infringing upon appellant’s right to a trial by jury. The court’s conduct was not merely a “failure to adhere to statutorily or constitutionally grounded procedural protections,” People v. Kelly, 5 N.Y.3d 116, 120 (2005); People v. Webb, 78 N.Y.2d 335, 340 (1991), as in the cases cited in Respondent’s Brief at 35. It hopelessly tainted “a part of the process essential to the form and conduct of the actual trial” itself. People v. Agramonte, 87 N.Y.2d 765, 770 (1996). 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 Bennett’s and DeCarlo’s testimony in a manner that could only have served to convey its apparent alignment with the prosecution. (B) Appellant further argues that the court deprived defense counsel of the right to be heard by waiting until after it 10 convened the jury to notify counsel that it had received two jury notes and announcing its intention to personally participate in the requested readback (Appellant’s Brief at 38-45). Because defense counsel had no notice of the court’s intended response, he could not have reasonably anticipated that the court would depart from the longstanding tradition of having the court reporter read back the testimony. He therefore had no meaningful opportunity to provide specific input on the notes. Because the court failed to comply with its core responsibilities under C.P.L. § 310.30, it committed a mode of proceedings error. O’Rama, 78 N.Y.2d 270. The People nevertheless contend that the trial court complied with its core responsibilities by announcing the notes and its intended response in the presence of counsel and the jury before going forward with the readbacks, and that, in any event, the court had no duty to inform counsel at all about how it intended to respond to the notes (Respondent’s Brief at 41-42, 46). According to the People, C.P.L. § 310.30 requires only that the court give notice of the “actual specific content” of a jury note, not that it do so before convening the jury (Respondent’s Brief at 41-42). The People’s narrow reading of C.P.L. § 310.30 contravenes the purpose behind the Ronder protocol, United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981), adopted by 11 this Court to “maximize” counsel’s participation in framing a response to a jury note. People v. Lykes, 81 N.Y.2d 767 (1993); People v. O’Rama, 78 N.Y.2d 270. As appellant argued in his brief (Appellant’s Brief at 39), the notice requirement of C.P.L. § 310.30 has been interpreted 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.” O’Rama, 78 N.Y.2d at 277 (original emphasis); see also People v. Cook, 85 N.Y.2d 928. The 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.” Lykes, 81 N.Y.2d at 769. The People’s interpretation of C.P.L. § 310.30, which would circumscribe defense counsel’s ability to be heard, is at odds with this Court’s decision in O’Rama. Here, by first revealing the notes and concomitantly announcing its intention to participate in the readback in the presence of the jury, the trial court significantly undercut counsel’s ability to meaningfully and intelligently participate in framing a response. See People v. Barteau, 223 A.D.2d 386 (1 Dep’t 1996)(trial court erred in failing tost give counsel opportunity to review juror’s note requesting readback of testimony). Far from inviting counsel to contribute to a discussion about how the court should handle 12 the readback requests, the court foreclosed it by announcing how it intended to handle the notes in front of the jury. Under these circumstances, the court failed to comply with its core responsibility of providing counsel with a meaningful opportunity to be heard. The cases heavily relied upon by the People, People v. Starling, 85 N.Y.2d 509 and People v. Lykes, 81 N.Y.2d 767 (Respondent’s Brief at 42-43), in fact add support to appellant’s argument that the court must give defense counsel advance notice of its intended response before convening the jury. In both of those cases, the trial court had complied with C.P.L. § 310.30 because defense counsel was already aware of how it intended to respond to the jury notes. Specifically, in Starling, the court simply re-issued an instruction that had previously been hashed out by the attorneys outside the presence of the jury (Appellant’s Brief at 44, fn. 7). Similarly, in Lykes, 81 N.Y.2d 767, the court issued a charge that had previously been given. Significantly, in each of these cases, the court did not provide any new information to the jury that had not already been given. Thus, whether the court complied with its core responsibilities turns on whether defense counsel had actual or constructive notice of the court’s intended response before convening the jury. See also People v. McGhee, __A.D.3d__, 13 (2d Dep’t, Feb. 6, 2013), WL * 440805 (because jury’s request for further explanation of an element was not a “readback of the previous instruction,” the court failed to comply with its core responsibilities when it disclosed and responded to the notes in the presence of the jury). Here, in sharp contrast to Starling and Lykes, there was simply no way defense counsel could have reasonably anticipated that the trial judge would choose to personally participate in the readback. Nor do the People suggest otherwise (See Respondent’s Brief at 45). Readbacks are typically done by the court reporter, and no readback had previously been conducted in this case. Under these circumstances, counsel had no way to anticipate that the court would handle the jury note in an unorthodox way until after it announced its intention to the jury. The People’s additional argument that the court is required to give notice “only” of the “actual specific content” of the jury’s note, and “not notice” of how it intends to respond (Respondent’s Brief at 45-46), both makes no sense and contradicts established case law. Failure to tell defense counsel about how the court intends to answer a note would force defense counsel to operate in the dark, preventing any productive discussion about what the response should be. It would frustrate the purpose behind the Ronder protocol, adopted by this Court to allow counsel to assist the 14 court in formulating a response. People v. Kisoon, 8 N.Y.3d 129, 135 (2007); Cook, 85 N.Y.2d 928; O’Rama, 78 N.Y.2d at 277. It would also place an attorney in the difficult position of having to lodge an objection in the presence of the jury. The People offer no explanation as to why a court should remain silent about its intent to address a jury note in an unusual way, or how such a practice would “maximize” counsel’s participation in framing a response. In sum, there has never been a case authorizing a departure from the O’Rama protocol to the extent here: where the court fails to inform defense counsel of a note’s contents, reveals it only in the jury’s presence, and then gives a completely unanticipated response. Under the circumstances here, the court’s failure to reveal the contents of the jury note and inform counsel of its intended response before convening the jury completely deprived defense counsel for the right to be heard, a mode of proceedings error. 15 CONCLUSION FOR THE REASONS STATED ABOVE AND IN APPELLANT’S MAIN BRIEF, HIS CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, LYNN W. L. FAHEY APPELLATE ADVOCATES Counsel for Defendant-Appellant MELISSA S. HORLICK Of Counsel February 2013