The People, Appellant,v.Shane Morris, Respondent.BriefN.Y.May 31, 2016• • • • • • • • • • • To be argued by DAVID P. GREEI'<'BERG ( 15 minutes) New York Supreme Court APPELLATE DIVISION·· SECOND DEPARTMENT PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SHANE MORRIS, Defendant-Appellant . REPI.Y BRIEF FOR DEFENDANT- APPELLANT DAVIDP.GREENBERG Of Counsel Lynn W.L. Fahey Attorney for Defendant- Appellant 2 Rector Street, lOth Fl. New York, N.Y. 10006 (212) 693-0085 TO BE HEARD ON THE ORIGINAL RECORD Queens County Ind. No. 2912-08 A.D. No. 10-07371 • • • • • • • • • • • SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT - X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, · -against- SHANE MORRIS, Defendant-Appellant.: - - - - - - - - - - X PRELIMINARY STATEMENT Appellant, Shane Morris, submits this brief in reply to the prosecution's brief, received in this office on August 20, 2013 and postmarked August 19, 2013. * * * This reply is submitted to address the prosecution's reliance on the recent decision in People v. Williams, 21 N.Y.3d 932 (2013). There, the trial court violated the protocol of People v. O'Rama, 78 N.Y.2d 270 (1991), when it read a note on the record for the first time only after the jury was already in the courtroom. However, the Court of Appeals ruled that no mode of proceedings error occurred, and consequently that an objection was required, because counsel ultimately heard the note when the trial judge read it into the record in front of the jury. Inasmuch as counsel had 1 • • • • • • • • • • • anotice," if not notice as early as required by O'Rama, an objection was required . However,. Williams has nothing to do with the present case, because, . here, counsel never received complete or adequate notice of a note requesting a readback of the testimony of Gary Richards, a crucial prosecution witness. To the contrary, the court's only reading of the note in question was entirely misleading. The court conveyed that the jury only wanted Richards's direct testimony, whereas the actual note bore no such limitation and called for the witness's complete testimony. The prosecution acknowledges that the court never conducted the required proceeding prior to the jury's return to the courtroom. Had the court later given counsel the aactual specific content of the jurors' request" (O'Rama, 78 N.Y. 2d at 277) when the jury returned to the courtroom, Williams might apply, but that did not happen. Instead, as elaborated in our principal brief, the court's rendition of the request unmistakably, but erroneously conveyed that the jury only wanted Richards's direct testimony (Appellant's Principal Brief, pp. 12-13) . The court had no basis for reading the limitation of direct-testimony-only into the jury's note. Thus, when the court read that very limitation into the record, it misled 2 • • • • • • • • • • • counsel and deprived counsel of the required notice. On this record, Williams is beside the point. Indeed, the emphasis on counsel's receipt of actual, full notice at some point in Williams, if anything, supports our position in this case, where no such notice was ever given, and the' court, in fact, misled counsel. It is remarkable, then, that the People throw around the pejorative term "disingenuous" in characterizing our argument in this appeal (Respondent's Brief, p. 12). Rather, it is the prosecution's attempt to slough off this substantive error as a mere matter of a "change" in "pronouns" that fails to convey what really happened (Respondent's Brief, p. '12). Yes, the court changed a pronoun in the note, but the error here lies in a false limitation that it added to the note, not the substitution of "You" for "We" as the prosecution suggests. This Court should also reject the prosecution's characterization of this error as "ministerial" (Respondent's Brief, p. 14). While it is true that the Court has, in some circumstances, classified a request for a readback as a "ministerial" matter not subject to the full strictures of the O'Rama mode of proceedings holding, the rationale is that the court's response in .such situations would be "obvious" and "not likely to require significant input" from counsel. People v. Lockley, 84 A.D. 3d 836, 838-839 (2d Dept. 2011) . 3 • • • • • • • • • • • Needless to say, counsel undoubtedly would have had something very forceful and compelling to say had he known that the court added a non-existent limitation to the jury's note, one that literally and arbitrarily read his cross examination of a key witness out of its response. Under these circumstances, th~ so-called "ministerialn exception to O'Rama is irrelevant and inapplicable . Accordingly, O'Rama, and the full force of the mode of proceedings holding of that case, and all of this Court's cases, apply here . The recent Williams decision does not apply and appellant is entitled to reversal of his conviction and a new trial.' CONCLUSION APPELLANT'S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED . DAVID P. GREENBERG Of Counsel August 2013 Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant We rely on our principal brief as to Point II. 4 • • • • • • • • • • • SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- SHANE MORRIS, Defendant-Appellant. ----------------------------------------X CERTIFICATE OF COMPLIANCE Queens County Ind. No. 2912-08 A.D. No. 10-07371 The foregoing brief was prepared on a computer. A monospaced typeface was used, as follows: Name of typeface: Courier Point size: 12 Line spacing: double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service and this certificate of compliance is: 724. Date: August 26, 2013 72- ~P. GREENBERG