The People, Appellant,v.Shane Morris, Respondent.BriefN.Y.May 31, 2016) ) ) ) ) ) ) ) ) Fa IN a~gmd by jESS!C\ ,\f. i'v[CNAM.-\R,\ New York Supreme Court APPELLATE DIVISION-- SECOND DEPARTMENT PEOPLE OF THE STATE OF NEW YORK, IZI'Jponaent. - ~~~aiJJ.r! - SHANE MORRIS, OeiCndanl-.· lpi>ellunl. BRIEF FOR DEFENDANT -APPELLA..t~T jESSie\ :..1. :..lc.\J.~~L\R:\. O.t.Coutur/ L Y0N W.L. F.~ HEY .\rtornev for Defendant- _\ppellant 2 Recror Street, lOth Fl. ~ew York. "JY 10006 (212) 693-0085 TO BE HEARD ON THE ORIGINAL RECORD· C21Jeens County [nd. 0io.2912/08 ,\.D. No. lll-il/.l/1 L\BLE OF CONTENTS ST\TE.\IENT PURSU"\NT TO RULE 5531 .................................................. I PREU\IINARY ST:\TE.\fENT. .................................................................................... 2 ) QUESTION PRESENTED ............................................................................................ 3 ) ) ) ) ST. \TE.\IENT OF F. \CTS ................................................................................................ 3 [nrroduction ................................................................................................................. 3 TheTri~ .......................................................................................................... -+ The Shooting ................................................................................................... 4 ,\ppellanr's ,\rrest and Inrcrrogation ......................................................... I 0 The J urv Charge ........................................................................................................ 10 Deliberations and Jurv Notes ................................................................................ 12 Verdier and Sentence ............................................................................................... 13 . \RGU.\IENT ................................................................................................................. I-I POINT I .\PPELL:\NT W .. \S DEPRIVED OF A FAIR TRL-\L WHEN THE COL.RT PREVENTED DEFENSE COL:?'-JSEL FRO!-.! :-.rE.'u'iiNGFL'LL Y P.\RTICW\TING IN"\ "CRITIC\L ST.\GE OF THE TRL-\L," BY E\ILING TO RE.\D .-\Jl'RY NOTE YERBATI:-.1.-u'iD SU.'.ThL\RIZING IT IN.\ \'(t\Y THAT ~L\Y HAVE ~IISLE.\D DEFENSE COCNSEL .\BOUT THE CONTENT OF THE :\'OTE, .'u'iD THE:\1 ERRED BY ORDERING .\N INCOL\.lPLETE RE.\DB.\CK ... 14 POINT II THE TRL-\L COCRT DEPRIVED .\PPELL\:\iT OF DL'E PROCESS .\ND .\ F.\IR TRL-\L \\•BEN IT F.\ILED TO PROPERLY 1:\iSTRCCT THE Jl'RY ON THE PEOPLE'S BCRDEN TO PROVE APPELL\i'-IT'S GULT BEYOND "\ RE.\SON.\BLE DOCBT ..................................................................................... 25 ) ) } ) SUPRE!v!E COURT OF THE S'L\TE OF NEW YORK .\PPELL\TE DIVISION: SECOND DEPI\RTMENT ---------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - agamsr- SH"·\NE .\IORlUS, Defendant-Appellant. ---------------------------------------------------------------------------X STATE.\!ENT PURSU"-\NT TO RULE 5531 l. The indictmenr number in the court below was 2912/08. "J The full names of the original parties were the People of the Stare of New York :tgainst Shane Morris. 3. This action was commenced in Supreme Court, Queens County. -L This action was commenced bv rhe filing of an indictmem on .\larch 12, 2009. J. This appeal is from a judgmem convicting appellant, after a JUry trial, of assault in rhe tl.rsr degree and criminal possession of a weapon in rhe second degree. 6. Tlus is an appeal from a judgment of conviction rendered July 14, 2010. 7 .-\ppellant has been granted permission ro appeal as a poor person on d1e original record. The appendix method is not being used. 1 ) ) ) PRELIMINARY S'L'I.TEMENT . \ppellant appeals from a judgment of the Supreme Court, Queens County, rendered july 14, 2010, convicting him, after a JUry trial, of assault in the first degree (P.L. § 120.10[1 1), and two counts of criminal possession of a weapon' in the second degree (P.L. §§ 265.03[ll[b], [3]. He received a determinate sentence of 17 years in ) prison on. the first-degree assault count, to be followed by 5 years of post-release ) ) ) supervision, and 15 vcars on each count of criminal possession of a weapon (.c\loise, J, at trial and sentence). Timelv notice of appeal was filed and on June 16, 2011, this Court granted :~ppellant leave m appeal as a poor person and assigned Lvnn \'(/. L. Fahev as appelbte counsel. .\ppellant had no co-defendants below. "-\ppcllant 1s currently incarcerated pursuant m the judgment and no stav has been sought. 2 ) ) 1. ) ) OUESTIONS PRESENTED Whether appellant was deprived of a fair trial when the court prevented defense counsel from meaningfully participating in a "critical stage of the trial," by failing to read a jury note verbatim and summarizing it in a way that mav have mislead defense counsel about the content of the note, and d1en erred by ordering an incomplete readback. Whether the trial court deprived appellant of due process :md a fair trial when it failed to properly instruct the jury on the People's burden to prove appellanr's guilt beyond a reasonable doubt. STXIE:\!ENT OF F:\CTS l l ntroduction . \ppellant Shane [\,[orris was charged with attempted second-degree murder, ) tirst-degree assault, and two counrs of second-degree possession of a weapon after he got into a dispme with the complainant, i\!r. Whitmore, who had multiple felonv convictions and was "absconding" from parole, and shot him in the face. In written ' st:uements to police, ,\[r. ,\[orris said he was defending himself ag:unst Mr. \V'hitmore who was drunk and "aggravated" and had tried to attack him with a knife. ) During its final charge, rl1e court instructed the jurv regarding reasonable doubt based on an outdated pattern jurv instruction that was revised more than a decade ago. Defense counsel objected to the charge as "inadequate" in that it failed to follow the current CJI charge, but the court clid not recharge the Jtirv. During deliberations, the jurv asked to hear the testimonv of Garv Richards, a L ~ • • ) friend of ':\Ir. \'V'hirmore who had \vimessed the shooting and claimed that :\Ir. 3 Whitmore JiJ not have a knife. Without first reading the note verbatim to the parties, ) the court summarized the request in the presence of the jury in a way that may have mislead defense counsel to believe that the jurv had asked to hear only the Jirect ) examination of i'vlr. RicharJs. The court then omitted from the reaJback the corresponding cross-examination that impeached Mr. Richards's credibility. The jury acguitted i\lr. :Vlorris of attempted murder, but found him guilty of ) the remaining counts. The Trial ) The Shooting On the evening of :\Jovember 4, 2008, complainant Harold Wf:itmore, who ) went by several other names, including "D'"·\ngelo .\Jams," was at Gary Richards'' home in Far Rockawav, Queens, drinking alcohol and watching the presidential } election results \virh his friends (Richards 160-162; \'(ihirmore 184-187, 241 ). i\lr. } ) ) \Vhitmore had previ.ouslv been convicted of misdemeanors and felonies, including riding in a srolen car, selling crack-cocaine, criminal rnischiet~ resisting arrest, stealing a car and driving it while drunk, and burglary', the crime for which he was on parole \vhen he .was shot, and just prior w trial he was ordered ro participate in a six-\veek anger management course (\'Vbitmore 201-203, 219-230). The· prosecutor had obmined a material "virness order for ;..[r. Richards! '\Vho \Vas reluctant to testifv (124). He '\·oluntarilv" come to court aiter police came to his house and told him they would arrest him if he did not come (I 59-160, I 70-171 ). ~umbers without pretix refer to d1e rtial minutes, and numbers preceded by "S." refer to the sentencing minutes. ) ) .\t 11:00 p.m., ,\{r. Whitmore and Mr. Richards went to rhe liquor store for the oil:Cond time that night to buy more alcohol (Richards 162-163, 172, 179; Whitmore 187 -188). Mr. Whitmore, who admitted he had a "problem with drinking," said that ) he was "t.ipsv" that night, and not "normal," but claimed he was "not verv" drunk (187, 191-192,227, 240-241). :\s ~dr. Whitmore and i\lr. Richards were walking back from d1e liquor store, :lppellant Shane Morris, known as "Blue," called ;\lr. Whitmore over (Richards 163- 165; Whitmore 188-189, 216). \[r. \'Vhitmore went to speak with Mr. \!orris, who was standing within "[a]rm's length" of another person (Richards 164-165; \'Vhitmore 189, 242). "-\fter a few minutes, \lr. \!orris brought up an incident from the week prior in ) which :\lr. \Xihitmore had damaged the door of a mutual friend, \·!arrha (\'(/hirmore 189-190, 235). \lr. Whitmore had been "partving" at \!arrha's house - drinking ) ) ) alcohol and smoking marijuana - when he "pushed" her son David's bedroom door open "too forcefullv" and broke it off the hinge (\'V'hitmore 190-191, 235-236). :'dr. \\.'hirmore denied that he had tried to break the door down when he was arguing wi.th Dav-id (\'Vbitmore 235-236). The door was srill not ti-.;ed, and ;\Ir. :'dorris asked ;<-..Ir. Whitmore for S96 w pay for it (\'Vbitmore 192, 236-237). :\lr . .\!orris's request "blew [i\lr. \'Vhitmore's] mind" because .\lr. :\!orris did not live at the house and had "(n]othing to do wi.th ... the entire situation whatsoever" (\vhitmore 192) . .\lr. \'Vbitmore, who had known .\!arrha "since U1e] was 13 vears old," had told her not to "worrv" and that he would J replace the Joor "later on" when he "c[ajme across a Jour" (\'\lhitmore 190-192). Mr. ) Whitmore toiJ :\lr. :\·!orris that he "wasn't giving him or anybouy else anything" (Whitmore 192-193). ) The Jispute escalateJ as Mr. Morris continued to insist that J'vfr. Whitmore pay ' for the door; !l·fr. ,\[orris became "aggressive" and "belligerent," "like it was his door ) :tnd his home," and began "clapping loud and putting his fists in his hand," and "getting a little louder!, I ... as if j11ej was disrespecting" Mr. \'\lhitmore (Whitmore 193, 238). :\!r. Whitmore became "aggravated" because he had already "spoke the ) siru:u1on with Martha," and was "bothered" rhat :\[r. Morris was "ask[ingj him about something that had nothing w Jo w-ith him" (\'Vhitmore 193-194, 238). They beg-,tn > cursing back and forth, :md :\lr. Whitmore told Mr. :\!orris it was "[n]one of his fucking business," it "had nothing to do with j1um]," and that he would "get a door ) when [he! ger[s] it" and he was "not paying for slur" (\'Vluunore 194, 238). _\s ,\[r. Wbitmore rurned to leave. he saw a movement out of me corner of Ius eve and then felt a "hard hit" and saw a "t1ash" in front of Ius face (\vbitmore 194- ) 197,216, 241). Feeling pain on tl1e left side of his face and seeing blood, he ran horne (Whitmore 198-199). :\fr. \vbitmore denied pulling out a knife during the dispute or ) raising his hands, but could not remember if he had anything else in Ius hands (\VIutmore 198, 238-240, 247). He never saw a gun, but "assume[d]" },fL Morris had ) held it in Ius "hoodie" pocket, where Ius hands had been (Whitmore 196, 241-243). ) 6 :\lr. Richards, who had been standing about 15 to 20 feet away talking to S(~mt:one dse, claimed that, although it was dark, he had recognized Mr. Morris, who he had seen 10 to 12 times before, and that he heard Mr. \'\lhirmore say, "what up, Blue," when he went to speak with him (Richards 163-165, 170; Whitmore 189). !\lr. Richards also claimed that he had heard them talking about the broken door and that, when :\lr. Whirmore "blew [Mr. MorrisJ off," 1-vlr. Morris said, "That's the way you feel," raised his arm, and fired two shots (Richards 164-166, 175-176): Mr.. Richards could not see the gun because it was too dark our, bur he heard the shots (Richards 166. 175-176). He did not see :\lr. Morris exchange anvthing with the other person standing nearby (182). :\lr. Richards gave contradictory testimony on cross- ) examination when he admitted that in an interview with police a few hours after the shooting he "rruth(fullyJ" described the shooter as an "unknown black man," and said ) ) that he did not know \Vhat the argument was about (Richards 17-1--175). :\lr. Richards also initially testified that ~lr. Whirmore did not have anvthing in his hands during the dispute and had not moved towards /vir. ;\!orris (Richards 165, 16 7), but then on cross-examination said that :\·Ir. \vbirmore was carrving a bag with a -1-0 ounce bottle of beer (Richards 178-179). \'Vben defense counsel asked him to explain the inconsistencv in his testimony, he said, "I was thinking that (defense counsel \Vas] referring to a knife or something to stab \vi.th," because that is what he ) was "trving ro imply" (Richards 179). Defense counsel reminded :\Ir. Richards that neitl1er he nor the prosecutor had mentioned a knife, and asked where he had heard ) 7 ) ) ;tbout one (Richards 179-180). i\!r. Richards replied that the_ prosecutor had not told him that he was going to be asked about a knife, and that he "d[idn't] know" why he rhought defense counsel was implying that there was a knife (180). On redirect, r\Ir. _Richards said he could not recall whether the prosecutor had asked him about a knife rhat mornin.~ (181). When he got home, i\lr. Whitmore, who was "bleeding heavy," washed his face in rhe bathroom and saw that he had a hole in his cheek, near his chin, and a hole underneath his cheek, near his neck (\'\ihitmore 200, 203-204, 244). However, he did not want to go to the-hospital because he was "absconding" from parole and did not want conracr with the police; he put pressure on his face to slow the bleeding and lay down (Richards 169, 173; Whitmore 201, 204-205, 234, 243-244) . .'vir. Richards, who had gone to :.lr. Whitmore's house after fleeing from rhe shooting, saw blood "squin[ingj" from "holes" in his neck and tried to convince him to go to the hospital (Richards 167-169; \Vbitmore 199-200, 204, 244). :.rr. \'C'bitmore became "incoherent," and :\Ir. Richards decided to call the police against ?vir. Whitmore's wishes (Richards 169, 174; \'Vbitmore 205). \Vl1en Police Officer :\Iichael ;\IcCabe arrived, i\Ir. Whitmore, who was "soaked in blood" and in and out of consciousness, asked "who let U1in1J in" and was "uncooperative" (:\IcCabe 142-143, 145-146, 151-153; \'Clutmore 204-205, 244). l\Ir. ) \Vhitmore rold him "to leave," said he did not "need U1in1J there," and gave a "vague" ) 8 description of what happene_d, describing the shooter as a black man weighing 180 lbs. (ivlcCabe 151-153). \lr. Whitmore was taken to Jamaica Hospital where he "lied" and told them his ) name was "D' c\ngelo ,\dams" (\'Vhitmore 205, 245). He was treated for an injury to ) ) ) ) ) ) ) his facial artery which, if left untreated, would have bled until he died (Dr. Kenneth Fretwell 257-265; see People's Ex.'s 4-5 [medical records!). When he woke up from ,;urgery handcuffed to the bed, he admitted his real name, but still did not want to cooperate and told police he was shot by an unknown black man (\XIhitmore 206-207, 245-246). 2 Two days later he was transported to R.ikers Island where he stayed in the prison hospital for about three weeks (\XIhitmore 207-246: see People's Ex.'s 4-5). On December I 0, 2008, he met \Vith the "·\.D."·\. Brennan, the prosecutor ctssigned to this case, and signed a proffer agreement, [Jromising w tell the truth; in exchange, .\.D.A Brennan agreed not to use his statements against him (\XIhitmore 208-210, 231-233; see People's Ex. 2). He finished servi.ng his sentence for violating parole on Januarv 23, 2009, and three weeks later, about rwo and one-half months clfter he signed the proffer agreement, his parole was "dismissed" (\'Vbitmore 233- 234). :\Ir. Richards had olreadv told Officer McCabe that the complainant's name was "Harold \\:hitmore." and that the complainant did not want the police involved if.IcCabe 153-154; Richards 169-170, l/3-17+). 9 ,\ppellant's c\rrest and Statement to Police ) On 0Jovcmber 5, 2008, Sergeant Cortney Cummings spoke with Mr. \'Vhtmore :lt the hospital and, a week later, Mr. Morris was arrested (Cummings 268-269, 287- ) 289). 3 In two statements written by Mr. i\lorris, he said that he confronted Mr. Whitmore after his friend !vlartha told him that Mr. Whitmore fought with her son and broke a door in her house (Cummings 276-283, 298-299, 303-304; m People's Ex.'s 9-1 0). :\Ir. Whitmore was drunk, and when he started to "grab his waist" and walk closer, Mr. !\!orris told him to "back up" and "give [him hisJ space" (Jd). At this point, .\[r. .'dorris's friend, who was standing behind him, passed him a gun (Id.). 4 :\lr. Whitmore said, "fuck you," and started "rushing" towards ;\[r . .\!orris \vith a knife, ) cwd Mr. :l!orris shot him (!d.). ) ) The Jurv Charge The court instructed the jury to consider attempted second-degree murder, first-degree assault, and second-degree criminal possession of a weapon (346-352). ,\s to the attempted murder and assault charges, the court instructed the JUry on the defense of justification (343-350). With respect to the standard of proof, the court instructed the jurv that: Sgt. Cummings resriiied that she mav have noted the complainant was "belligerent" when she ralked w him, but said thar most people are belligerent to her (289). 10). This deuil was onlv included in the second written surement (279-280; m People's Ex.'s 9- 10 ) ) ) ) ) j ) ... the standards of proof relJuircd in every criminal case is proof of guilt beyond a reasonable doubt. That does not require the People to establish this defendant's guilt beyond :til possibiliry of a doubt, or to a mathematical certainry or bevond a shadow ofa doubt. Rather, it re<.Juires the People to establish tlus defendant's guilt beyond a reasonable doubt. Before vou can return a verdict of guiltv, each of you must be satisfied that the credible evidence is sufficient to convince vou beyond a reasonable doubt that a crime was committed and that this is the person who committed it. So what is a reasonable doubt? "-\ doubt of the defendant's guilt, to be reasonable doubt, must be a doubt for wluch some reason can be given. It must arise because of the nature and the qualiry of the evidence or from the lack or insufficiency of the evidence. It should be one that a reasonable person, who is acting in a matter of this importance, would be Likely to have either because of the evidence or the lack of evidence. When is a doubt not reasonable? A doubt of guilt is not reasonable if, instead of it being based upon the evidence or the lack of evidence, it's based upon ·a guess or a whim or a speculation unrelated to the case. A doubt of guilt is not reasonable if it's based upon sympathy for tills defendant or upon a mere desire by a juror to avoid doing a disagreeable dutv . . -\. reasonable doubt is an actual doubt, one which you are conscious of having. If vou tind the People have not proven tills defendant's guilt bevond a reasonable doubt, you must tind tills defendant not guilty. On the other hand, if you are satisfied based upon the testimonv of either one or more witnesses that d1e People have in fact established tills defendant's guilt beyond a reasonable doubt, vou must find tills defendant guilry (339-340). 11 ) Defense counsel objected to the reasonable doubt charge, arguing that it was ) "inade(]U:tte" and did not follow rhe standard CJI charge. The court stated that the instruction was "from the CJI," bur defense counsel responded that he objected to that specific charge and "th[oughtJ" it was an "abridged version" (354). The court did not provide the jury with a different instruction. ) Deliberations and 1 ury Notes J • ) ) ) ) ) ) . \fter asking to see i\lr. Morris's wntten statements, the jury submitted the fol!O\ving note: "We the jury request a readback of Garv Richard's testimony" (Court's Ex.'s l-2). Without first reading the note on the record to the parries outside rhe presence of the jury, the court addressed the JUrv as follows: JTHE COURT]: Jurv, fust you requested the defendant's statements. You got those, right?5 THE JURY: Yes. THE COURT: Secondlv, you requested read-back of Gary Richards' testimony. We are prepared to give it to you right now. This is the direct examination of Gary Richards bv i\Ir. Brennan6 (\'eLJuestration," People IJ. Bonaparte, 78 N.Y. 2d 26, 30 (1991); m e.g. People v. Figueroa, ) 95 .\.D.3d 587, 587 (1st Dep't 2012) (matters concerning functions of foreperson "ministerial"); People v. Gmyair, 75 ,\.D.3d 401, 402-03 (1st Dep't 201 0) (request to be escorted our of the building JiJ nor involve "information or instruction" and was thus ' "ministerial"); People v. Kelly, 11 .\.D.3d 133, 144 (1st Dep't 2004) (court officer's refusal to allow jurors to handle exhibit was "ministerial" because it ''JiJ not convey ) anv legal instruction or impart any information to the jurors about the trial evidence"); Peo,Die v. Bowen, 309 .\.D.2d 600, 601 (1st Dep't 2003) (how jury should dispose of ) their notes was "a purdy administrative or ministerial matter that had nodung to Jo \Vith any legal or factual issue or the mode of jury deliberations"); People v. Fontane'G 254 AD.2d 762, 763-64 (4th Dep't 1998) Gury note asking "D1]ow long \V-ill you want ) us to deliberate totlightr'' did not implicate 0 '&m1a because it "did not request any >ubstantive information" or "concern the crimes ~barged or d1e evidence in the case, ) much less anv key issue"). In contrast, a jury note sent during deliberations asking to hear testimonv of a kev witness, the very evidence upon \Vhich the jury must base its ) verdict, can hardly be considered "wholly unrelated" to the substantive issues of the ) 20 ' ) ) ) ) ) rrial, Hams, 76 N.Y.2d at 812, or not "impart[ing] any information to the JUrors about the trial evidence." Kelly, 11 A.D.3d at 144. \Vhile courts have found that communications from the court to the jury clarifying testimonial rcadback requests can be ministerial, they have generally not held that the readback request itself is ministerial.' See e.g. Harris, 76 N.Y.2d at 811-12 (clarification that JUrors wanred to hear rh~ tesrimony "of' the complainant, when rhev had requested to hear testimony "about" the complainant, was ministerial); People v. Perez, 173 .\.D.2d 162, 164 (1st Dep't 1991) (court's "quesrioning of the jury foreman ... regarding clarificarion as to which witness's tesrimony the jury wished to have read back" was not violarion of C.P.L. § 3!0.30); People v. ;\.lap, 85 A.D.3d 1700, 1700-01 (4th Dep't 2011) ("a ministerial communication [to the jury] concerning the scope of a .request for a read back that is 'wholly unrelated ro the subsrantive legal or factual issues uf the trial"' does not violate 0 'Rt1ma or C.P.L. § 31 0.30) (emphasis added); cf People v. Lykes, 81 N.Y.2d 767, 770 (1993) (\vhile jury note requesting "Legal Terminology about Charges" required adherence to O'Rama, court's communicarion \Vith jurv, clarifying the request "conveved no information pertaining to the law or facts of the case" and thus did not violate 0 Rama). Given that 0 'Rama is triggered by the nature of the jury's request, :uid not the court's response, these cases do not L' nlike testimonial read back requests, the Court oi .\ppeals has held that requests to see exhibits are nor :'substantive.~' J.nd thus responses to such requests do nor need ro follo\V 0 Ram a. See People t'. Damtcmo, 87 :J.Y.~d 477. 487 (1996) Gurv note requesting to see exhibit "did nor requesr cll1\' substantive information to implicate d1e notice procedures"); People v. Rosado, 262 AD.2d 62, 62 (l st Dep't 1999) (same). 21 ) ) ,;uggest that courts are not required to give defense counsel meaningful nonce of testimonial readback requests. 78 :\I.Y.2d at .277-78 (O'Rama ·procedures applv "whenever a substantive written jury communication is received by the judge") (emphasis added); •/ People v. Otboa, 14 N.Y.3d 180, 187-88 (after court clarified that :unbiguous jury note was "an inquiry of a ministerial narure," defense counsel not enorled to notice). Often, as in this case, a court's response to a readback request is not "obvious." See Lockley, 84 A.D.3d at 838-39 (holding that requests for the "readback of the elements of a charged offense or r.he viewing of an exhibit" are "ministerial" because rhe court's response "would be obv;ous"). Courts have comistenrly held that a trial ) court's failure to "respond meaningfully" to a jurv's request for testimonial readbacks, rvpically either by refusing to permit a readback or by improperly interpreting the ) ) ) scope of the request, is ·reversible error when it prejudices the defendant. See e.g. People IJ. · Lo11n'do, 70 N.Y.2d 428, 435 (1987) (failure to prov;de requested readback of tesrimonv \Vas reversible error); People v. Smitb, 68 AD.3d 1021, 1022 (2d Dep't 2009) (court's improper interpretation of jury's testimonial readback request seriouslv prejudiced defendant); People v. _\1cCain, 177 _-\.D.2d .513, .51.5 (2d Dep't 1991) (reversal iri part because court failed to meaningfullv respond to jurv request for tesrimonv); People v. Artarola, 96 _-\.D.2d 1081, 1082 (2d Dep't 1983) ("trial court's refusal to J permit the readbacks as requested constiruted reversible error"). These cases show that where responding to readback requests is not a simple, "ministerial" task that is ) 22 ) unrelated to subsranrive issues in the case, the failure to do so properly can prejudice ) the defendant to the point of reqtilling reversal. Thus, meaningful notice to counsel of n:stimonial rcadback requests is essential to allow defense input in formulating a ) response and "adequate I] protect!ion otl the defendant's rights." 0 'Ri11tJa, 78 :.J.Y.2d ;l[ 277. The Cerrera case, which contains no indication that the jury's request for a readback called for anything other than an obvious response, is nor to the contrary. See a!J·o People v. Bt)'cmt, 82 ,\.D.3d 1114, 1114-15 (2d Dep't 2011). \V"hen a trial court's failure to disclose the contents of a juror note "cffcctivelv prevents defense couns~l from meaningful participation in the proceedings," as happened here, dus error constitutes ''a sigtuficant departure from the orgatuzation of > rhe court or the mode of proceedings prescribed bv law." 0r"hoa, 14 N.Y.3d at 187-88 (citing 0 "Rama, 78 N .Y.2d at 279). Although "some departures from the procedures ) outlined in 0 'Roma mav be subject to the rules of preservation ... ;t failure to fulfill the court's core responsibility"- "meaningful notice" of the "specific content" of the jurv nore- "is nor." NJoon, 8 N.Y.3d at 134-35. ) In People t•. Starling, preservation was required because counsel had "notice of the contents of the jury notes," \Vhich were read verbatim in open . court, and ) "knowledge of the ... court's intended response." 85 N.Y.2d 509, 516 (1995). In similar cases, courts have required preservation if counsel fullv understood the ) contents of the note, even if it was not read on the record verbatim prior to summoning the jurv, and knew how the court would respond. See e.g. People v. Kadarko, ) ) 14 N.Y.3d 426, 429 (2010) (judge provided "meaningful notice" of note by reading the bulk of it on the record outside the presence of the jury and provided counsel an opportunity to be heard); People v. lt:"edry, 85 ,\.D.3d 672, 672-73 (1st Dep't 2011) ) (although court did not read note to the parties on the record, there was an "inescapable inference" from the record rhat defense counsel '\vas aware of the ) ) ) contems of the note"); People v. Salas, 47 AD.3d 513, .514 (lst Dep't 2008) ("core responsibility" fuHilled where court read the contents of note in open court, and there was strong inference that note was disclosed to counsel off the record); People /). Burgos, 2-18 AD.2d 547, .547 (2d Dep't 1998) (counsel had knowledge of contents of notes and court's intended response). Here, however. no inference can be made from the record that defense counsel had knowledge of the contents of the note before the jury was summoned and was aware of the court's intended response. ) Further. the court's sununary of the note clid not provide "meaningful notice," but ) ) rather rnisleaclingly indicated that the jurv asked to hear onlv the \Vitness's direct testimonv, when thev actually requested ro hear his entire testimonv. Thus, preservation is not required. Tlus is the only logical conclusion under the circumstances of tlus case - defense counsel can hardlv be expected to object to tl1e court's iailure to provide !lim \vi.th meaningful notice of the response, or his intended response to tl1e jury, when defense counsel had no reason to know that these errors had occurred. See generai{v Peopie v. Dejwts, -+2 N.Y.2d 519, 526 (1977) (counsel must be afforded a fair opporrunitv to make and ~laborate on objections). 24 ) - This case, in which the court failed to give meaningful notice of a jury note, and then gave an erroneous response to the jury- a serious error requiring reversal in some cases - underscores d1e importance of adhering to me procedures set forth in ) 0 'Rama, so that defense counsel can protect their clients' rights_ The court's failure to ) ) ) fultlll its "core responsibilities" by disclosing the exact contents of the jury note "cnrirclv prevent[edj defense counsel from participating meaningfully in this critical srage of the trial" and was "inherendy prejudicial." O'Rama, 78 N.Y.2d at 279-80; m a!Jo KiJ-oon, 8 N.Y.3d at 135. Accordingly, the Court should reverse :VIr. Morris's conviction :ll1d remand the case for a new trial. Tabb, 13 N.Y.3d at 853; Kj,·oon, 8 "!Y.3d 129; O'Emna, 78 N.Y.2d at 279; Lockley, 84 AD.3d 836. POINT II THE TRL-\L COL1RT DEPRIVED "-\PPEU,-\NT OF DlJE PROCESS _\ND ,-\FAIR TRL-\L \'Vl-!EN IT F.-\ILED TO PROPERLY INSTRCCT THE Jl:RY ON THE PEOPLE'S BURDEN TO PROVE .\PPELL\NT'S GUILT BEYOND.-\ RE"-\SON"-\BLE DOUBT. It is essential to properly instruct the jurv as to d1e standard of proof bevond a reasonable doubt. Here, the court's instruction, which was based on an outdated parrern jury charge iliat was overhauled more than a decade ago, failed to adequatelv ) explain to the jury how strong ilie evidence had to be for a guilty verdict. "-\ppellant was rhus deprived of due process and a fair trial. U.S. Const., 14th "-\mend., N.Y. Consr., ~-\rt. L S 6. ) ) ) The Due Process Clause of the 14th 1\mendment. protects an accused against ' conviction except upon proof beyond a reasonable doubt of every fact necessary ro constitute a charged crime. i11 1~ I'Vin..-hip, 397 U.S. 358 (1970). \'Vhcn a defendant ) challenges a court's reasonable doubt instruction, the constitutional yue:stion 1s ) ) whether rhere is a reasonable likelihood that the jury understood the insr.ruction to permit convicrjon based on proof insufficient ro meet the· standard articulated 1n IVimhtp. Victor v. NebraJka, 511 U.S. l (1994). "\s the Supreme Court declared 1n The reasonable-doubt standard plavs a vital mle in the · .\merican scheme of criminal procedure. It 1s a pnme instrument for reducing the risk of convictions resting on tactual error. The standard provides concrete substance for the presumption ~)f innocence - rhat bedrock "axiomatic and elementarv" principle whose "enforcement lies at the foundation of the admirustration of our criminal law." 397 U.S. at 363 (citation omitted). The reasonable doubt standard, d1e "decisive difference bet\veen criminal culpability and civil liabilitv," performs this function in subsrantial part "by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused" before returrung a guilty verdict. JackJon !J. f/irginia, 443 CS. 307, 315 (1979) .. \ jurv cannot emplov these fundamental constitutional principles, however, unless d1e trial court's explanation of reasonable doubt, taken as a whole, commurucates the appropriate snindard, "a subjective state , of near certitude." Id ! 16 ) Over ten years ago, the Office of Court 1\dministration's Committee on Criminal Jury Instructions ("Committee") signiticantly revised the New York mstrucnon on reasonable doubt. Compare CJI2d(N'l) Proof Beyond A Reasonable ) Doubt, with 1 CJI(NY) 6.20 Reasonable Doubt; m Michael A. Riccardi, C!Jangex Dmjied )or Cnminal ]11ry Imtmrtions, Nl:'LJ, "\ug. 2, 2000 at l, col. 3 (proposed changes, which ) ) would represent a "significant event in the state's jurisprudence," "make it easier for trial judges to communicate legal concepts to jurors in a manner they can use") (internal quotes omitted). In particular, the revised CJI reasonable doubt instruction :tdopted two key portions of the Federal Judicial Center's ("FJC") model instmction: (1) that the proof of guilt in a criminal trial must be stronger rl1an the civil preponderance of the evidence standard - It IS "not sufficient to prove that the . defendant is probablv guilty"; - and (2) that, in order to convict, jurors must be ) "firmlv convinced" of the defendant's guilt. CJI2d(NY) Proof Bevond .-\ Reasonable ) ) Doubt; J·ee rJC, Pattern Criminal Jury Instructions § 21 at 28 (1987). These t\vo specific aspects of the FJC model instruction, as \velll as that of the mstrucnon generally, were endorsed by Supreme Court Justice Ginsberg in her concurnng opinion in Virtor tJ. Xebrmka. 511 U.S. at 26-27 (FJC reasonable doubt instruction, requiring more proof than civil preponderance standard for conviction, and utilizing a "ti.nn!v convinced" standard for conviction, "surpasses others I have seen in miring ) the reasonable doubt standard succinctly and comprehensibly"). ) 27 'l'he Committee, composed of judges and artorneys, is "charged with providing standard instructions to be used by judges charging juries on the law": the instructions It recommends are "widely used in criminal trials" in Ne\v York and '\,riven much ) weight in determining the explanation of concepts and terms under the law." People v. ) ) ) Crinbn:g, 4 Misc.3d 670, 680 n.3 (Crim. Ct., Kings County 2004). While the CJI charges need not be given \VOrd for word, they are widely recognized as providing the son of balanced instructions courts are required to !,>1ve. See e.g. People v. ""lieman, 12 N.Y.3d 806, 807 (2009) (while response ro juror deadlock note must be tailored to circumstances, failure to issue balanced deadlock charge, such as the one recommended bv the CJT, required reversal) . .\foreover, although it may be necessary to adapt a CJI charge in instructing jurors on the elements of a crime or a defense, for example, see People v. Andujm, 79 "'.Y.2d 113, 118 (1992) (CJI agency charge ) appropriate as to one drug transaction but not anmher), as to :1 general concept as ) ) reasonable doubt, the CJI charge should rarely, if ever, need or merit substantial modification. Our appellate courts have repeatedly criticized trial courts for departing from the accurate and carefullv balanced CJI charges \;,hen there is no reason for doing so. S defective reasonable doubt instmction). Even assuming that harmless error analysis applies, tbe error was not harmless in appellant's case. The People were required to prove beyond a reasonable doubt that ctppellant was not justified in shooring the complainant, whom appellant claimed tried to attack him with a knife. The jury clearly stmggled with this issue. Thev requested to ' read appellant's 1"\VO written statements, in which he described how his friend, the other person that borh the complainant and :\[r. Richards saw standing "[ajrm's ) lengrl1" from appellant, had passed him a gun when rhe compLiinant starred to gmb his waist and walk to\vards him. The jurv could have easilv discredited the ) cumplainant's denial that he had a knife mat night, due to his extensive criminal hisrorv, his admission that he had lied to the police and hospital staff, and his repeated refusals ro cooperate \vim the police in me investigation of the shooting, even after ) · thev kne\\r he was a parole violator. The onlv oilier wimess to i:he shooting, :\lr. Richards, was a friend of the complainant and initially umvill.ing to testifv (170-171 ). :\ ) \\lille he testified on direct thar he recognized the shooter as appellant, \vho he knew :~s "Blue," and heard rl1e specitlc conversation bel"\veen appellant and the complainant. he admitted on cross-examination rhat he had tmthfullv told the police something different - rhar he did not know who rhe shooter was, and did not know ) what he and the complainant argued about (174-175). c\nd, although :\!r. Richards ) had claimed on direct that rhc complainant did n()t have anvthing in his hands (165, I 6 7, · 178-179), he admitted on cross that he was carrving a 40 oz. bottle of beer. ) Furthermore, although he was never asked whether the complainant was carrying a ) ) ) ) knife, he spontaneouslv said he thought defense counsel was implying that the complainant was carrying one that night (179-l SO). Given these contradictions, it cannot be said that the failure to deliver a proper reasonable doubt charge was harmless beyond a reasonable doubt. See Cbapman v. Cdifomia, 386 L.;.S. 18 (1967); People tJ. CtimminJ, 36 :\J.Y.2d 230 (1975). Therefore, tl1is ( :uurt should reverse appellant's conviCtion and order a new trial. C:O~CLUSTON t:·oR TI·IE R.L\SONS SL\TED .\BOVE, THIS COURT SHOULD H.EVERSE ,\PPELL\NT'S CONVICTION .L'\iD ORDER ,\ NEW TRL\L. Respectfully Submitted, Ll:"NN \V L. E-\1-IEY "\ttornev for the Defendank\ppellant ) _lESSIC\ :\I. :\[C~.\.\L\R.\ Of Counsel ) ' b 78 70'1? "eptem er _ , _ _ ) ) ) ) ) ) ) CERTlFlC-\TEOF COM1'LL-\NCE PCRSU,\NTTO 22 NYCRR § 670.10.3(0 The foregoing brief was prepared on a computer. .-\ proporrionally spaced rypeface was used, as follows: '\jame of typeface: Garamond Point size: 14 Line spacing: Double The rota! number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certit!cate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is S, 212.