The People, Appellant,v.Shane Morris, Respondent.

Brief

N.Y.May 31, 2016

APPELLATE ADVOCATES 111 JOHN STREET - 9TH FLOOR, NEW YORK, NEW YORK 10038 PHONE: (212) 693-0085 FAX: (212) 693-0878 April 30, 2015 Andrew W. Klein, Esq. Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Shane Morris; Queens County Ind. No. 2912–08; APL-2014-00297 - respondent’s answer to People's SSM submission. Dear Mr. Klein: I am writing to respond to the People’s SSM submission (Letter of Sharon Y. Brodt, dated March 20, 2015) seeking reversal of the Appellate Division's order directing reversal of respondent’s conviction and granting him a new trial. Although we agree with the People’s request that this case be returned to full briefing and oral argument (Brodt Letter, p. 25), this Court should reject their attack on the Appellate Division’s sound application of People v. O’Rama, 78 N.Y.2d 290 (1991), and related decisions. As discussed below, the trial court violated the now-familiar principles and procedures of O’Rama in several critical ways. First, the court failed to conduct any proceeding whatsoever to consult with counsel prior to bringing the jury back into the courtroom to respond to its note requesting the testimony of Gary Richards, a key prosecution witness. Second, with the jury already assembled in the courtroom, the trial judge read the note in a highly misleading way indicating that the jurors had only requested Richards’s direct-examination testimony. Third, as even the People concede, the actual readback consisted only of Richards’s direct and omitted his cross examination. While the Appellate Division ATTORNEY-IN-CHARGE LYNN W. L. FAHEY ASSISTANT ATTORNEY-IN-CHARGE BARRY S. STENDIG SUPERVISING ATTORNEYS DAVID P. GREENBERG ERICA HORWITZ PAUL SKIP LAISURE LISA NAPOLI WILLIAM G. KASTIN KENDRA L. HUTCHINSON ALLEGRA GLASHAUSSER DIRECTOR OF INNOCENCE INVESTIGATIONS DE NICE POWELL ALEXIS A. ASCHER STEVEN R. BERNHARD SAMUEL E. BROWN ELIZABETH E. BUDNITZ DENISE A. CORSÍ A. ALEXANDER DONN ALLEGRA GLASHAUSSER LEILA HULL LAUREN E. JONES JONATHAN M. KRATTER BRYAN KREYKES JOHN B. LATELLA JOSHUA M. LEVINE TAMMY E. LINN BENJAMIN S. LITMAN PATRICIA PAZNER ANNA PERVUKHIN SHANDA SIBLEY NAO TERAI MARK W. VORKINK KATHLEEN E. WHOOLEY JENIN YOUNES RONALD ZAPATA DINA ZLOCZOWER OF COUNSEL MELISSA S. HORLICK correctly concluded that the truncated readback caused respondent concrete prejudice, it also recognized that each of these errors was contrary to the mode of proceedings prescribed by law. As a result, respondent was entitled to reversal of his conviction even though defense counsel failed to object and without having to demonstrate specific harm. Accordingly, this Court should affirm the order of the Appellate Division reversing respondent’s conviction and ordering a new trial. Statement of Facts Appellant, Shane Morris, was charged with attempted second-degree murder, first-degree assault, and two weapon counts, after getting into a dispute with the complainant, Harold Whitmore, who had multiple felony convictions and was "absconding" from parole at the time. In written statements to police, appellant explained that he was defending himself when he shot Whitmore, who was drunk and had tried to attack him with a knife. Trial Evidence On the evening of November 4, 2008, complainant Harold Whitmore was at Gary Richards's home in Queens, drinking alcohol and watching the presidential election results with his friends (Richards: A. 49-51; Whitmore: A. 73-76, 130).1 Whitmore, who also went by several aliases, had previously been convicted of misdemeanors and felonies (A. 73, 90-92, 108-119). Later, as Whitmore and Richards were walking back from the liquor store (for the second time that evening), respondent called over to Whitmore, who later admitted being “tipsy” from his hours of drinking that night (Richards: A. 51-52, 61; Whitmore A. 75-78, 130). After a few minutes, respondent brought up an incident from the week before in which Whitmore had caused damage to a door at the home of a mutual friend, Martha, while “drinking and partying” there (Whitmore: A. 78-80, 124-125). Whitmore denied that he had tried to break the door down while arguing with Martha’s son (Whitmore A. 124-125). In any event, the door was still not fixed, and respondent asked Whitmore to pay for it (Whitmore: A. 81, 125- 126). The dispute escalated, but at some point Whitmore turned to leave (Whitmore: A. 79-83, 127). Out of the corner of his eye, he saw a movement and then felt a "hard hit" and saw a "flash" in 1Numbers preceded by “A.” refer to the appendix filed by the People with their letter. 2 front of his face (A. 83-86, 105, 130). Whitmore never saw a gun, but "assume[d]" respondent had held one in his “hoodie pocket,” where his hands had been (Whitmore: A. 85, 130-132). He denied pulling out a knife during the dispute or raising his hands (A. 198, 127-129, 136). Richards, who had been standing about 15 to 20 feet away talking to someone else, testified that, although it was dark, he recognized respondent, whom he had seen 10 to 12 times before, and that he heard Whitmore say, "what up, Blue" (respondent’s nickname) when Whitmore and respondent first encountered each other (Richards: A. 52-54, 59). Richards also contended that he had heard them talking about the broken door and that, when Whitmore "blew [respondent] off," respondent said, "that's the way you feel," raised his arm, and fired two shots (Richards A. 53-55, 64- 65). He did not see Whitmore moving toward respondent prior to the shots being fired (A. 56). On cross-examination, Richards admitted that in an interview with police a few hours after the shooting he "truth[fully]" described the shooter as an "unknown black man," and said that he did not know what the argument was about (A. 63-64). Richards also admitted that he could not see the gun because it was too dark out, although he heard the shots (A. 55, 64-65). He did not see respondent exchange anything with another person standing nearby (A. 71). After testifying on direct that Whitmore had nothing in his hands during the dispute, on cross Richards said that Whitmore was carrying a bag with a 40-ounce bottle of beer (A. 54, 56, 67-68). When defense counsel asked him to explain the inconsistency, he responded, he was “thinking that” counsel was “referring to a knife or something to stab with," because that is what counsel supposedly was "trying to imply" (A. 68-69). Defense counsel reminded Richards that neither he nor the prosecutor had mentioned a knife, and asked where he had heard about one (Richards 179-180). 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 thought defense counsel was implying that there was a knife (A. 68- 69). On redirect, Richards said he could not recall whether the prosecutor had asked him about a knife that morning (A. 70). Richards also admitted on cross that he was drunk when the police interviewed that night (A. 64). When he got home, Whitmore, who was "bleeding heavy," washed his face in the bathroom and saw that he had a hole in his cheek near his chin, and a hole underneath his cheek near his neck (Whitmore: A. 89, 92-93, 133). However, he did not want to go to 3 the hospital because he was "absconding" from parole and did not want contact with the police. Instead, he put pressure on his face to slow the bleeding and lay down (Richards: A. 58, 62; Whitmore: A. 90, 93-94, 123, 132-133). Richards, who had returned with Whitmore to his house after fleeing from the shooting, tried to convince him to go to the hospital (Richards: A. 56-58; Whitmore: A. 88-89, 93, 133). When Whitmore became "incoherent," Richards had Tamica, another friend who was now with them, call the police against Whitmore's wishes (Richards: A. 58, 63; Whitmore A. 94). Whitmore was bloody, in and out of consciousness, and "uncooperative" when the police arrived (P.O. Michael McCabe: A. 31-32, 34-35, 40-41). He told them "to leave," said he did not "need [them] here," was "vague" about what had happened, and described the shooter only as a black man weighing 180 pounds. (McCabe: A. 40-42). At Jamaica Hospital, where he was treated for an injury to a facial artery, Whitmore "lied" by giving one of his aliases (Whitmore: A. 95, 134; Dr. Kenneth Fretwell: A. 146-154). Upon awaking from surgery handcuffed to his bed, he admitted his real name, but still did not want to cooperate and told police he was shot by an unknown black man (Whitmore: A. 95-96, 134-135). Two or three days later he was transported to Rikers Island where he stayed in the prison hospital for about three weeks (Whitmore: A. 96, 135). In the meantime, respondent was arrested and in a series of statements (two written) said that he confronted Whitmore after Martha accused Whitmore of fighting with her son and breaking the door (Sgt. Cortney Cummings: A. 165-172, 187-188, 192-193). Whitmore was drunk, and when he started to "grab his waist" and walk closer, respondent told him to “give [him his] space.” At that point, respondent’s friend, who was standing behind him, passed him a gun. Whitmore said, "fuck you," "rushed" toward respondent with a knife, and respondent shot him. The next month, Whitmore signed a “proffer agreement” in which he agreed to give truthful testimony (as determined by the prosecutor). In exchange, the People agreed not to use his statements against him in any other criminal proceedings (Whitmore: A. 97-99, 120-122). He finished serving his sentence for violating parole in January 2009, and three weeks later, about two and a half months after he signed the proffer agreement, his parole was "dismissed" (Whitmore: 122-123). 4 Charge, Faulty Response to Deliberating Jury’s Note, and Verdict The court submitted the four counts of the indictment and a justification charge on the attempted murder and first-degree assault counts (A. 235-241). During deliberations, the jury’s first note requested respondent’s statements. Its second note stated: “We the jury request a readback of Gary Richards’s testimony.” The record shows that the court never revealed the notes to counsel prior to bringing the jury back into the courtroom, at which point it dealt with both notes. First, it responded to the note requesting the statements: THE CLERK: Case on trial in the matter of Shane Morris. All parties are present. The jury is not present at this time. (Defendant is present.) COURT OFFICER: Jury entering. (Whereupon, the jury entered the courtroom.) COURT OFFICER: Alternate jurors entering. (Whereupon the two alternates entered the courtroom.). THE CLERK: Case on trial continued in the matter of Shane Morris. All parties including the jury is present at this time. Jury, first you requested the defendant’s statements. You got those, right?.2 THE JURY: Yes (A. 247-248). Next, the court dealt with the second note requesting Richards’s testimony: THE COURT: Secondly, you requested read-back of Gary Richards’s testimony. We are prepared 2It appears that the minutes mistakenly attribute this statement to the clerk (358-359). 5 to give it to you right now. This is the direct examination of Gary Richards by Mr. Brennan. (Whereupon, the requested portion of the record was read back by the court.) THE COURT: Continue your deliberations. COURT OFFICER: Okay, jurors, please rise. (Whereupon, the jury exited the courtroom.) THE COURT: Please mark the two jury notes. (Whereupon, two Jury Notes were marked as Court Exhibits 1 and 2, by the Court Reporter.) (A. 248). As elaborated below, the Appellate Division found, and the People concede, that only Richards’s direct examination testimony, and none of his cross examination, was read back to the jury (People v. Morris, 120 A.D.3d 835 [2d Dept. 2015]); Brodt Letter, pp. 2, 4, 21).3 Later, the jury submitted a third note requesting the definition of assault in the first degree and instruction on the relationship between that count and the attempted murder count. The court assembled the parties outside the presence of the jury, marked the note as an exhibit, and consulted counsel regarding its response (A. 248-249). In the presence of the jurors, the court then read the note and provided the agreed-upon answer (A. 249- 251). The jury acquitted respondent of attempted murder, but found him guilty of first-degree assault and the two weapon counts (A. 253-256). Appeal to the Appellate Division In the Appellate Division, respondent argued that the court’s handling of the note requesting Richards’s testimony violated the O’Rama protocol in several ways, thereby depriving him of his rights under C.P.L. § 310.30, to due process, and to the effective 3There is also no indication that Richards’s brief redirect testimony was read back to the jury. 6 assistance of counsel. First, in violation of C.P.L. § 310.30 and O’Rama, 78 N.Y.2d 270, the court read the note for the first and only time with the jury already in the courtroom, rather than sharing the note with the parties prior to reassembling the jury (Appellate Division Brief, pp. 16-17; Reply Brief, p. 2). Second, the court misled defense counsel by reading the note in a way suggesting that the jurors had requested only Richards’s direct examination (Appellate Division Brief, pp. 17-19, 24; Reply Brief, pp. 2-3). Third, the court erroneously limited the actual readback to the witness’s direct examination, omitting cross (Appellate Division Brief, pp. 14, 18-19, 24-25).4 The Appellate Division first made a finding that the trial court only provided a readback of: the direct examination testimony of Richards ... The cross-examination of Richards was not read back to the jury. 120 A.D.3d 835. The court then held that this violated the requirements of O’Rama, and that it required reversal of respondent’s conviction despite defense counsel’s failure to object. In particular, and, again, contrary to the People’s present contention (Brodt Letter, pp. 4-5, 19), it ruled for respondent on both of his first two O’Rama claims: the trial court violated the O’Rama protocol by (1) failing to consult with counsel regarding the Richards note before bringing the jury back into the courtroom; and (2) reading the note in a misleading way conveying that the jury had only asked for Richards’s direct. The highlighted portions of the Appellate Division’s decision identify these two, individual holdings: “‘[T]he trial court's core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors' request - in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response - and to provide a meaningful response to the jury’” (People v. 4Accordingly, contrary to the People’s contention (Brodt Letter, pp. 4, 18), before the Appellate Division, respondent did not limit himself to the second of his three claims, namely, that the court conveyed the contents of the note requesting Richards’s testimony in a misleading way. 7 Alcide, 21 N.Y.3d 687, 692, quoting People v. Kisoon, 8 N.Y.3d 129, 134; see People v. Walston, 23 N.Y.3d 986, 988–989. “A court's failure to supply a meaningful notice or response constitutes error affecting the mode of proceedings, and therefore presents a question of law for appellate review even in the absence of a timely objection” (People v. Alcide, 21 N.Y.3d at 692). While a timely objection to an alleged O'Rama error may be required where the jury requests a readback and “defense counsel ... [has] knowledge of the substance of the court's intended response” (People v. Starling, 85 N.Y.2d 509, 516; see People v. Ramirez, 15 N.Y.3d 824, 825), [HOLDING I]here, it is not evident from the record that defense counsel was aware that the trial court would give only part of a witness's testimony in response to a jury note, such as the one at issue here, requesting a readback.[HOLDING II] By failing to apprise counsel of the content of the note and the substance of its intended response before calling in the jury, the trial court “failed to meet its core responsibilities of providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response” (People v. Walston, 23 N.Y.3d at 990; see People v. Lockley, 84 A.D.3d 836. 120 A.D.3d at 836. The court also ruled for respondent on his third claim that the court, indeed, erroneously limited the readback to Richards’s direct examination. Although the court held that this constituted a mode of proceedings violation, it also concluded that the improperly-truncated readback specifically prejudiced respondent: Furthermore, by providing the jury with only a partial readback, the trial court violated its separate obligation under CPL 310.30 to provide a “meaningful response” to the jury (People v. Kisoon, 8 N.Y.3d at 134). While defense counsel did not object to the partial readback, this error, too, is not subject to the preservation rule, since it is evident 8 from the record that the trial court failed to satisfy this core responsibility (see id. at 134–135). Although a defense counsel who is given notice of the trial court's intended response might be expected to object at a time when counsel “had an opportunity to ask [the court] to alter course” (People v. Alcide, 21 N.Y.3d at 694), counsel here had no such opportunity because he learned of the trial court's response at the same time the jury heard it. The trial court failed to meaningfully respond to the note when it failed to include in the readback the cross-examination of Richards, which included testimony that was detrimental to the prosecution and relevant to the defense. Among other things, Richards's testimony on cross-examination revealed that he was intoxicated when he was interviewed by the police on the night of the incident. Richards also testified on cross-examination that he truthfully told the police on the night of the incident that the complainant had a dispute with an unknown male, even though Richards testified on direct examination that he had seen the defendant on approximately a dozen prior occasions. Further, Richards testified on cross-examination that the complainant was holding a bag containing a 40–ounce bottle of beer while he was arguing with the defendant, despite testifying on direct examination that the complainant had nothing in his hands. As a result, the trial court's failure to provide the jury with Richards's testimony on cross-examination during the readback seriously prejudiced the defendant (see People v. Clark, 108 A.D.3d 797; People v. Lewis, 262 A.D.2d 584; see also People v. Smith, 68 A.D.3d 1021, 1022; People v. Brown, 262 A.D.2d 569).5 120 A.D.3d at 836-837 (emphasis added). On November 25, 2015, Judge Graffeo granted leave to appeal to the People. People v. Morris, 24 N.Y.3d 1045 (2014). 5The Appellate Division rejected a claim, not at issue here, addressed to the trial court’s reasonable doubt instruction. 9 ARGUMENT AS THE APPELLATE DIVISION CORRECTLY RULED, THE TRIAL COURT DEPRIVED RESPONDENT OF HIS RIGHTS UNDER PEOPLE V. O’RAMA AND C.P.L. § 310.30, BY FAILING TO CONVENE THE PARTIES FOR CONSULTATION ON A JURY NOTE BEFORE CALLING THE JURORS BACK INTO THE COURTROOM; MISLEADINGLY CONVEYING THAT THE NOTE, WHICH INVOLVED A KEY WITNESS’S TESTIMONY, ONLY REQUESTED HIS DIRECT EXAMINATION; AND BY THEN ERRONEOUSLY OMITTING THE WITNESS’S CROSS EXAMINATION FROM THE ACTUAL READBACK. Criminal Procedure Law § 310.30, and People v. O'Rama, 78 N.Y.2d 270 (1991), require a trial court to give counsel "meaningful" notice of a deliberating jury's request, and an opportunity to participate in formulating a response, prior to bringing the jury back into the courtroom. To be meaningful, the precise contents of the jury communication must be disclosed. Here, the deliberating jury requested a readback of Gary Richards’s testimony without mentioning any limitations. As the Appellate Division ruled, however, the trial court violated the O’Rama protocol by first addressing the jury’s request for Richards’s testimony when the jury was already in the courtroom. Then, instead of conveying the jury’s obvious desire for Richards’s complete testimony, the court misleadingly indicated that the jury had asked to hear only the direct examination. Finally, as the Appellate Division also correctly ruled, the ensuing readback erroneously omitted cross examination and, thus, several crucial sequences that impeached the credibility of the witness. Each of these errors constituted a violation of the mode of proceedings prescribed by law, was inherently prejudicial, and reviewable in the absence of an objection. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, § 6; C.P.L. § 310.30; People v. Walston, 23 N.Y.3d 986 (2014); People v. Tabb, 13 N.Y.3d 852 (2009); People v. Kisoon, 8 N.Y.3d 129 (2007). Accordingly, the order of the Appellate Division should be affirmed. (A) When a deliberating jury requests “additional information or instruction,” the trial court must provide "notice to both the People and counsel for the defendant" of the communication. C.P.L. § 310.30. In O'Rama, 78 N.Y.2d 270, this Court held that the "notice" required by C.P.L. § 310.30 must be "meaningful," which it defined as follows: 10 "[M]eaningful" notice in this context means notice of the actual specific content of the jurors' request. Manifestly, counsel cannot participate effectively or adequately protect the defendant's rights if this specific information is not given. Indeed, the precise language and tone of the juror note may be critical to counsel's analysis of the situation in the jury room and ability to frame intelligent suggestions for the fairest and least prejudicial response. 78 N.Y.2d at 277. The Court also set forth a procedure for the trial judge to follow prior to responding to a request in order to ensure that counsel receives meaningful notice. The O'Rama protocol consists of: marking the note as an exhibit; reading it into the record in the presence of counsel absent the jury; affording counsel the opportunity to suggest responses; apprising counsel of the court's intended response; and reading the note into the record in the presence of the jury. O'Rama, 78 N.Y.2d at 277-278. Although "rigid" adherence to this protocol is not required under all circumstances, O'Rama, 78 N.Y.2d at 278, the decisions put a premium on conveying a note accurately. As the Court explained, the failure to reveal the full contents of a note "ha[s] the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial." Id. at 279. That "represent[s] a significant departure from ‘the organization of the court or the mode of proceedings prescribed by law.'" Id. (quoting People v. Coons, 75 N.Y.2d 796 [1990], and People v. Patterson, 39 N.Y.2d 288 [1976], aff’d, 432 U.S.197 [1977]). The application of mode of proceedings analysis bespeaks a highly protective attitude toward the notice requirement. In O'Rama, a juror sent a note stating that deliberations were deadlocked and indicating the vote count. Rather than disclosing the note's verbatim contents, the trial judge summarized it for the parties as indicating juror disagreement, while withholding the vote breakdown. 78 N.Y.2d at 275. This Court held that the trial judge’s summary failed to satisfy the notice requirement: [T]he Trial Judge's summary of the "substance" of an inquiry cannot serve as a fair substitute for defense counsel's own perusal of the communication, since it is defense counsel who is best equipped and most 11 motivated to evaluate the inquiry and the proper responses in light of the defendant's interests. 78 N.Y.2d at 277. In People v. Kisoon, 8 N.Y.3d 129 (2007), the jury sent a note indicating that it was not unanimous, reporting the vote breakdown, and explaining that it thought further deliberations would not change its decision. In the absence of the jury, the court paraphrased the note as simply reporting a hopeless deadlock. In the presence of the jury, it read only the portion of the note stating that further deliberations would not change the jury's decision. Neither time did the judge disclose the vote breakdown. Id. at 132. This Court found a mode of proceedings error and affirmed the Appellate Division's reversal, holding that the failure to read the note verbatim deprived counsel of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response. . . . As in O'Rama, the "court's failure to notify counsel of the note's contents, which resulted in a denial of the right to participate in the charging decision, was inherently prejudicial." Id. at 135 (citation omitted). Recently, in Walston, 23 N.Y.3d 986, where the top count charged murder in the second degree and the court charged manslaughter in the first degree as a lesser included offense, the jury sent a note that read: “Power Point - Judge[']s directions on Manslaughter/Murder in the Second Degree - (Intent).” Before bringing back the jury, the court informed counsel that the jury “want[ed] the Judge's directions on manslaughter and murder in the second degree,” but did not mention the note's reference to “intent.” In front of the jury, “the court again paraphrased the note by stating ‘you have asked for a read back of manslaughter and murder’ and gave the standard charges for each crime.” 23 N.Y.3d at 988. At no time did defense counsel lodge an objection to the court’s handling of the note. This Court held that, in “paraphrasing” the note by omitting the jury’s reference to “intent,” the trial court “failed to meet its core responsibilities with regard to the” jury’s request. 23 N.Y.3d at 990. To fulfill that obligation, the court had to provide counsel with “the specific, substantive contents of the note.” The omission of the jury’s allusion to “intent,” however, 12 made that impossible. Id. Notably, the Court recognized that the note was “ambiguous concerning whether the jury was requesting an expanded definition of the intent element or was merely asking for a read back of the homicide charges which included a definition of intent.” Yet, that “only substantiate[d] defendant’s argument that the court” deprived counsel of “meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response.” Id. This constituted a mode of proceedings error requiring reversal of defendant’s conviction even in the absence of an objection and a showing of specific prejudice. People v. Silva, 24 N.Y.3d 294, 299 (2014); Tabb, 13 N.Y.3d 852 (reversal where “[n]othing in the record indicate[d] that the court informed defense counsel and the prosecutor about the contents of” note regarding the justification defense); Kisoon, 8 N.Y.3d at 135; O’Rama, 78 N.Y.2d at 280. These cases emphasize the fundamental principle that disclosing the exact contents of a jury request is critical to counsel’s ability to participate fully in formulating an appropriate response. [T]he trial court's core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors' request — in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response — and to provide a meaningful response to the jury. Kisoon, 8 N.Y.3d at 134. (B) The Appellate Division held, the trial court committed reversible error under O’Rama, by “failing to apprise counsel of the content of the note and the substance of its intended response before calling in the jury.” 120 A.D.3d at 836. As discussed above, the format established in O’Rama requires a trial judge to reveal any jury note and solicit counsel’s response prior to bringing the jury back into the courtroom. 78 N.Y.2d at 277-278. As explained at greater length in our office’s brief in the companion case of People v. Nealon (Nealon Brief, pp. 24, 26-27, 30-33, 39-40),6 engaging counsel before the jury is back in the courtroom ensures "that counsel has the opportunity to be heard 6According to the Clerk’s office, Nealon and the present case are being considered together as companion cases. 13 before the response is given." People v. Cook, 85 N.Y.2d 928, 931 (1995). In contrast, giving the contents of a note to counsel when the jury is back in the box and ready to go requires counsel to evaluate the implications of the communication as the court is reading it, and to anticipate the court’s response, and places counsel in the awkward position of having to object in front of the jury with any suggestions or objections. Plainly, proceeding in this way rather than as mandated by O’Rama greatly undermines the right to notice and the opportunity to participate in formulating a response. As a result, as also explained in our Nealon brief (pp. 23-26, 30, 32-33, 38-40), when a note requiring a “substantive” response is involved, only reading the note and allowing for input once the jury is back in the courtroom not only violates the O’Rama protocol, but constitutes a mode of proceedings error not subject to the usual preservation rules or a showing of specific prejudice. Silva, 24 N.Y.3d at 299 (2014); Kisoon, 8 N.Y.3d at 135; O’Rama, 78 N.Y.2d at 280. Here, what should have been a simple piece of business for counsel and the court turned into just the opposite. Rather than rereading the note about Richards’s testimony before returning the jury to the courtroom, the court never addressed the note until the jury was there. Although, in People v. Alcide, 21 N.Y.3d 687, 693- 694 (2013), the failure to read a note bearing two straightforward readback requests prior to returning the jury to the courtroom did not constitute a mode of proceedings violation, that case is fundamentally different from this one because, as set forth in the next section, the judge misled defense counsel as to the jury’s request. While the judge in Alcide should have read the note to counsel outside the jury’s presence, he conveyed its contents in a perfectly clear manner once the parties and the jury were assembled. 21 N.Y.3d at 691. As defense counsel was well aware that this was a request for rereadings of testimony with no limitations, the response incumbent on the court was ministerial in nature and did not invite defense counsel’s peculiar input - the court simply had to provide the witnesses’ full testimonies. As a result, the error was not subject to mode of proceedings treatment because it did not violate the court’s core responsibility. In this case, on the other hand, and for no apparent reason, the court interpreted the jury’s straightforward request for Richards’s testimony as only seeking direct examination. Once Justice Aloise made that determination (which he never addressed or attempted to justify on the record), the palpably substantive issue of the extent of the readback became a question. In these circumstances, in contrast to Alcide, the failure to abide by the strict O’Rama protocol by not sharing the note before the jury 14 returned to the courtroom constituted a mode of proceedings violation because it denied defense counsel an opportunity to participate in formulating what the jury heard. (C) The second of the errors on which the Appellate Division correctly ruled for respondent involved the highly misleading way the court conveyed the contents of the note requesting Richards’s testimony. Regarding that error, in particular, the Second Department specifically found that it was “not evident from the record that defense counsel was aware that the trial court would give only part of” Richards’s testimony. That, of course, is what ultimately happened without counsel ever having been advised of this crucial limitation on the readback. While the trial court recited the words of the note requesting Richards’s testimony, it couched the recitation in a longer statement that effectively modified it by suggesting that the jury had only requested his direct examination. The note plainly requested Richards’s testimony without any limitations: We the jury request a readback of Gary Richards’s testimony. However, the court coupled its reading of the note with surplusage suggesting that the jury had actually limited its request to direct examination: [Y]ou requested read-back of Gary Richards’s testimony. We are prepared to give it to you right now. This is the direct examination of Gary Richards by Mr. Brennan (emphasis added). (Whereupon, the requested portion of the record was read back by the court.) THE COURT: Continue your deliberations. COURT OFFICER: Okay, jurors, please rise. (Whereupon, the jury exited the courtroom.) THE COURT: Please mark the two jury notes. (Whereupon, two Jury Notes were marked as Court Exhibits 1 and 2, by the Court Reporter.) (A. 248). 15 The highlighted statement misled counsel by suggesting that the note itself limited the readback request to direct examination, an implication that was reinforced by the court’s direction to the jury, immediately after the readback of Richards’s direct examination, to “[c]ontinue your deliberations.” The context, moreover, leaves no doubt that this was how defense counsel understood the court’s rendition of the note. Had defense counsel known that the note requested Richards’s testimony without limitation, he undoubtedly would have objected, and vigorously, to the omission of cross examination. Indeed, it is hard to imagine any competent attorney doing otherwise. For this reason, respondent’s case is controlled by Walston (misleading omission of the word “intent” from reading of note) and the other cases where courts failed to convey the exact contents of jury requests to counsel, E.g., O’Rama; Kisoon; Silva, and is completely different from those where they did. Alcide. The Appellate Division also found (120 A.D.3d 835) and the People concede (Brodt Letter, pp. 2, 4, 21) that the actual readback of Richards’s testimony omitted cross examination. Once that happened, the misleading implication conveyed in the court’s reading of the note became even stronger. For having now heard both the misleading reading of the note and the truncated readback, counsel had even more reason to believe that the jury had asked only for direct. This again explains defense counsel’s silence in the face of this limited readback. No other explanation for defense counsel’s failure to speak up makes any sense. The O’Rama protocol was designed to avoid just such a problem. Contrary to the People’s contention (Brodt Letter, pp. 8, n.7, 19), it is impossible to believe that any of this would have happened had the court simply showed the note to counsel prior to bringing the jury back. At that point, it would have been a simple matter of the parties agreeing that the jury’s straightforward request compelled a rereading of Richards’s full testimony. At a minimum, defense counsel, and probably the trial assistant, would have had an opportunity to convince the court to fulfill the complete terms of the note, if the court saw it differently. It is because the court first read the note when both the parties and the jury were already in the courtroom, that it found itself addressing counsel and the jury in the same breath. This introduced disorganization and confusion into the process when the court read the note and immediately explained to the jurors that it was about to provide a response, namely, Richards’s direct. The problem is that, in the court’s choice of words, counsel was led to believe that the jury only requested that direct. That undoubtedly is why counsel never spoke up further. 16 The People speculate that “in a great number of these cases” - meaning cases involving O’Rama violations - “the notes were actually disclosed prior to the jury’s return to the courtroom during an off-the-record colloquy.” Supposedly, this is “by far the most likely reason that counsel failed to object when the full contents of the notes were disclosed in open court” (Brodt Letter, p. 17). The record in this case, however, compels the opposite inference. Had the court informed defense counsel that, despite the absence of limitations in the jury’s note, it was only going to supply Richards’s direct testimony, it is inconceivable that counsel would have stayed mute and not objected. The only logical scenario, then, is that counsel never saw or heard the note until the court read it in the jury’s presence. In that flawed process, counsel was misled about the note’s contents, and that was why he failed to protest. Throughout this litigation, the People have also contended that the only discrepancy in the court’s reading of the note was that it changed the pronoun “We,” in “We the jury ... ,” to “You” (Brodt Letter, pp. 18-19). The foregoing demonstrates that the problem with the court’s communication was not a mere formalism of usage. Rather, as even the People recognize, the miscommunication of a deliberating jury’s request places defense counsel in an untenable situation: [I]f counsel is unaware of the note at all, he is precluded from contributing to the formulation of a response to the note. Similarly, if he is unaware of the full contents of the note, he is forestalled from making a meaningful contribution, and can argue that he would have sought a different response than the one he requested. Thus, treating such lapses as mode-of-proceedings error may be justified (Brodt Letter, p. 16). This is what happened in respondent’s case to his great detriment, and, thus, mode of proceedings “treat[ment]” is “justified.” (D) The Appellate Division also correctly held that “by providing the jury with only a partial readback, the trial court violated its separate obligation under CPL 310.30 to provide a ‘meaningful response’ to the jury (People v. Kisoon, 8 N.Y.3d at 134),” and that this error, “too, is not subject to the preservation rule, since it is evident from the record that the trial court failed to satisfy this core responsibility.” 120 A.D.3d at 836. 17 In arguing to the contrary, the People cite various decisions but contend, in particular, that this case is “indistinguishable” from Alcide, 21 N.Y.2d 687 (Brodt Letter, p. 21). Yet, in Alcide, this Court said once again that the “failure to supply a meaningful notice or response constitutes error affecting the mode of proceedings, and therefore presents a question of law for appellate review even in the absence of timely objection (see O’Rama, 78 N.Y.2d at 279; CPL 470.05[2]).” 21 N.Y.3d at 692 (emphasis added). Alcide, therefore, reiterated that, under O’Rama, the mode of proceedings doctrine applies to violations of both the notice and meaningful-response components of a court’s “core responsibility” to deal with jury requests during deliberations. The Court again reaffirmed this clear principle in its most recent O’Rama decision, People v. Silva, 24 N.Y.3d 294, a case the People cite several times in their letter, but curiously omit from the section addressing the court’s failure to provide a meaningful response (Brodt Letter, pp. 7, 13, 16, 20). In Silva, the Court held that a trial court’s complete failure to respond to a jury’s request for reinstruction or readback (in the companion case, Hanson) constitutes a mode of proceedings error. The Court expressly rejected the dissent’s contention that consistency with People v. Lourido, 70 N.Y.2d 428, 435 (1987), and People v. Agosto, 73 N.Y.2d 963, 966 (1989), previously two of the Court’s leading decisions on the failure to respond to jury notes, but characterized by the Silva majority as “pre-O’Rama cases,” required a showing of “serious prejudice,” a term used in both of those decisions. 24 N.Y.3d at 300, n.1. In rejecting the dissent’s view, the majority adopted the reasoning of the three-member concurring opinion in People v. Cruz, 14 N.Y.3d 814, 818-819 (2010), which said that the serious prejudice test of Lourido and Agosto has “at best” “marginal” “vitality” after O’Rama.7 The 7“Serious prejudice” as a standard of reviewing the failure to respond properly to a jury note appears to date back to People v. Cooke, 292 N.Y. 185, 188 (1944). Cooke, however, cited no authority and offered no critical analysis in support of the standard, which then seemed to take on a life of its own all the way to Lourido and Agosto. A hyper-demanding serious prejudice standard appears also appears inconsistent with this Court’s observation that: [t]here are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury's request for clarification of the law or further guidance on the process of (continued...) 18 demise of Lourido and Agosto in Silva reconfirms, and vividly, that the failure to respond meaningfully to a jury note, the second component of the “core responsibility” under C.P.L. § 310.30, constitutes a mode of proceedings error under O’Rama. O’Rama, 78 N.Y.2d at 279. Here, the jury requested a readback of Gary Richards’s testimony without any limitations. In reading only Richards’s direct testimony, the court provided an indisputably one-sided response. Indeed, the mistaken partial readback in this case may have been worse than no readback at all, the situation in Silva. A complete failure to respond to a request for a witness’s testimony might be frustrating to the jury, but could also be construed by the jurors as neutral. By contrast, a readback erroneously limited to direct examination only gives the jury what the prosecution wants it to hear. The limitation, moreover, may suggest to the panel that the court considers only the direct testimony to be important. For this reason, it makes no sense to categorize a mistake of total omission as a mode of proceedings error (E.g., Silva, 24 N.Y.2d 294), but to require preservation and a showing of prejudice for a partial omission. This is also the implication of Walston, 23 N.Y.3d 986, where, as discussed above, the trial court provided deficient notice by advising counsel of the jury’s request for reinstruction on the top two counts, while omitting its reference to the word “intent.” The reasoning of Walston applies to errors involving the meaningfulness of the court’s actual response in addition to the notice requirement, because, as the twin elements of the core responsibility, notice and responding meaningfully are simply two sides of the same coin. Kisoon, 8 N.Y.3d at 134; O’Rama, 78 N.Y.2d at 276-277 (“CPL 310.30 thus imposes two separate duties on the court following a substantive juror inquiry: the duty to notify 7(...continued) deliberations. Indeed, the court's response may well determine whether a verdict will be reached, and what that verdict will be. Kisoon, 8 N.Y.3d at 134-135 (citations omitted); People v. Ciaccio, 47 N.Y.2d 431, 436 1979). Notably, the serious prejudice terminology also predated by decades the Court’s calibrated approach to harmless error analysis embodied in the seminal case of People v. Crimmins, 36 N.Y.2d 230 1975), and, of course, the Court’s application of mode of proceedings analysis in O’Rama to errors affecting a trial court’s execution of its “core” responsibilities during deliberations. 19 counsel and the duty to respond. It has been held that the latter duty requires the court to give a response that is ‘meaningful.’”). At this stage in the development of the Court’s O’Rama jurisprudence, it would be an entirely artificial and untenable distinction to treat a violation of one part of the obligation as a mode of proceedings error, but to subject the other part to prejudice analysis and require preservation. Silva, 24 N.Y.3d at 299 (2014); Kisoon, 8 N.Y.3d at 135; O’Rama, 78 N.Y.2d at 280. This is especially true in a case like respondent’s where: the court’s failure to hold a conference with counsel prior to addressing the jury directly greatly enhanced the possibility of miscommunication between the court and counsel; which vitiated any opportunity counsel might have had to bring the problem with the partial readback to the court’s attention; and, thus, paved the way for a highly skewed readback. Although the foregoing shows that prejudice analysis was not necessary, the omission of Richards’s testimony was highly prejudicial. In the first place, the People’s contention that Richards was “not a very important witness” holds not water whatsoever (Brodt Letter, p. 22, n. 17). The trial assistant, who repeatedly referred to Richards in his opening statement and summation, plainly did not regard Richards, his only alleged eyewitness other than the complainant, as insignificant (A. 21-22, 215, 222, 224). The omission of Richards’s cross examination from the readback is all the more noteworthy because he was the only witness whose testimony the jury requested. The Appellate Division, therefore, had a strong basis for finding that the court’s omission of Richards’s cross examination deprived the jury of material “detrimental to the prosecution and relevant to the defense” and “seriously prejudiced the defendant,” In particular: Among other things, Richards's testimony on cross-examination revealed that he was intoxicated when he was interviewed by the police on the night of the incident. Richards also testified on cross-examination that he truthfully told the police on the night of the incident that the complainant had a dispute with an unknown male, even though Richards testified on direct examination that he had seen the defendant on approximately a dozen prior occasions. Further, Richards testified on cross-examination that the complainant was holding a bag containing a 40–ounce bottle of beer while he was arguing with the defendant, despite testifying on direct examination that the complainant had nothing in his hands. 20 120 A.D.3d at 837. The Appellate Division’s characterization of prejudice is well-taken, but the prejudice was also inherent in the very fact of the truncated readback itself. See Kisoon, 8 N.Y.3d at 135. The same problem would arise in any other case where a trial court responded to a request for a full reading of a witness’s testimony by supplying the prosecution’s half of it alone. In so doing, a court both deprives the jury of the full picture of the case, and also risks mistakenly suggesting that the omitted portion was not important enough to warrant a rereading. Thus, in this case, the inherently-prejudicial error in failing to read Richards’s full testimony, and omitting the entirety of his cross examination, constituted a mode of proceedings violation requiring no showing of actual prejudice or an objection by defense counsel. (E) Finally, this Court should reject the various purported policy arguments suggested by the People. In the first place, it is time for the Queens County District Attorney’s office to abandon its not-so-hidden agenda of seeing O’Rama overruled or severely circumscribed (Brodt Letter, pp. 15-16). This Court has already, and very recently, rejected any such notion. Silva, 24 N.Y.3d at 300-301. No more convincing is the prosecution’s further suggestion that O’Rama needs to be drastically cut back because O’Rama reversals take a toll on victims and, more generally, the criminal justice system (Brodt letter, pp. 16-17). Our system has always accepted, even embraced, the collateral consequences of the occasional reversal for the purpose of validating due process. As noted, the People also speculate that, in “a great number of these cases,” defense counsel learned of notes in off-the-record discussions, even if the judges only read the notes aloud upon the jury’s return to the courtroom (Brodt Letter, p. 17). Above (p. 17), we refuted the suggestion that defense counsel in this case was aware of the true content of the jury’s note requesting Richards’s testimony (Brodt Letter, pp. 8, n.7, 19). If this case is any indication, then, there is no reason to assume that notes are being disclosed willy-nilly in myriad off-the-record proceedings in other cases (Brodt Letter, p. 17). In any event, this Court can only decide respondent’s case on its own facts, where every indication is that counsel did not receive the full contents of the note. The Court should also rebuff the District Attorney’s suggestion that the Appellate Division has been improperly using the cudgel of reversal to “motivate” wayward trial judges who fail 21 to follow the O’Rama protocol, and that the Appellate Division, itself, needs to be reined in (Brodt Letter, pp. 17, 19). The District Attorney is better advised to train his trial assistants to insist on making a record of all discussions of jury notes, if some colloquies are currently taking place in the shadows. O’Rama, 78 N.Y.2d at 277-278 (requirement that disclosure of notes be on the record prior to jury’s return to courtroom). However, every indication is that the absence of a record usually equates with absence of disclosure. * * * Accordingly, the Appellate Division correctly held that the trial court violated its "core responsibility" under People v. O'Rama and C.P.L. § 310.30, and committed a series of mode of proceedings errors in this case. This Court should affirm the Appellate Division’s order directing reversal of respondent’s conviction and a new trial. Should the Court disagree, respondent asks the Court to remand the case to the Appellate Division for it to consider whether to reach these issues in the interest of justice. Yours truly, David P. Greenberg Supervising Attorney (x206) cc: ADA Sharon Y. Brodt, District Attorney, Queens County 22