The People, Appellant,v.Shane Morris, Respondent.BriefN.Y.May 31, 2016RICHARD A. BROWN DISTRICT ATTORNEY DISTRICT ATTORNEY QUEENS COUNTY 125-01 QUEENS BOULEVARD KEW GARDENS, NEW YORK 11415-1568 (718) 286-6000 March 20, 2015 The Honorable Andrew W. Klein Chief Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Shane Morris APL-2014-00297 Queens County Indictment Number 2912/08 Dear Mr. Klein: I submit this letter in connection with this Court’s sua sponte review of the merits of this case under section 500.11 of the Court rules. For the reasons that follow, this Court should reverse the Appellate Division’s order reversing defendant’s conviction, upon a jury verdict, of Assault in the First Degree (Penal Law § 120.10[1]) and two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b], [3]), on the ground that the court failed to respond to a jury note as required by People v. O’Rama, 78 N.Y.2d 270 (1991). People v. Morris, 120 A.D.3d 835 (2d Dept. 2014). In an unbroken line of cases since and including O’Rama, this Court has drawn a bright line between errors that are deemed mode-of-proceedings errors and those that are not. That line has been determined by the following question: Did counsel have knowledge of the full contents of the note? If so, then any claim People v. Shane Morris Page 2 APL-2014-00297 March 20, 2015 regarding the failure of the court to follow the exact procedure recommended by this Court in O’Rama, or regarding any less-than-ideal response to the note, has been subject to the rules of preservation. If, on the other hand, the trial court failed to disclose any material content of the note, then the error has been classified as a mode- of-proceedings error, not subject to the rules of preservation. Here, the Appellate Division, Second Department, contravened this Court’s clear precedent in holding that the trial court committed a mode-of- proceedings error when it read the jury’s notes into the record virtually verbatim for the first time in open court, in front of defendant, defense counsel, the prosecutor, and the jury, just prior to responding to the notes. Indeed, this Court’s cases have addressed precisely this situation, and held that, so long as the trial court discloses the entire contents of the notes to the defense, no mode-of-proceedings error occurs, regardless of whether the disclosure takes place prior to or after the jury is called out – even if that disclosure takes place after the judge responds to the note. See People v. Williams, 21 N.Y.3d 932 (2013); People v. Alcide, 21 N.Y.3d 687 (2013); People v. Kadarko, 14 N.Y.3d 426 (2010). Here, the notes were read prior to the court’s response and defendant had ample opportunity to object and to have input into the response before, during, and immediately after the response was given – at which time the response could have been modified to include a readback of the cross- examination. Thus, the court below should not have found a mode-of-proceedings error. The Appellate Division’s order ignoring this Court’s precedent in this case, as well as in the two companion cases before this Court, People v. Nealon, 116 A.D.3d 886 (2d Dept.), lv. granted 23 N.Y.3d 1065 (2014), and People v. Tyson Sydoriak, 120 A.D.3d 840 (2d Dept.), lv. granted 24 N.Y.3d 1047 (2014), should be reversed. Similarly, the Appellate Division erred in its related finding that the court’s response to the note, which requested a readback of testimony, was not meaningful because the court chose to have only the direct testimony read back. Because of the overwhelming evidence against defendant and – contrary to the Appellate Division’s assessment – the lack of any importance to the evidence elicited on cross-examination of this witness, any error in the court’s decision had no impact on the verdict. But, more important, if counsel was dissatisfied with the court’s response, he had an obligation – and ample opportunity – to object. The Appellate Division’s treatment of this alleged error – which has always been subject to preservation, without exception – as a mode-of-proceedings error is further evidence that its treatment of jury note issues is out of line with this Court’s jurisprudence. People v. Shane Morris Page 3 APL-2014-00297 March 20, 2015 Factual and Legal Background On November 4, 2008, in the Rockaways, defendant shot Harold Whitmore twice in the face. One of those shots nicked the victim’s facial artery, from which Mr. Whitmore could have bled to death were he not treated. The shooting occurred because defendant demanded money from the victim to pay for damage to a door that Mr. Whitmore had caused. The door belonged to a mutual friend of Mr. Whitmore and defendant. Mr. Whitmore had promised to fix the door, but had not yet done so. Because he still intended to fix the door, he refused to give defendant any money. Defendant, angry over this refusal, shot Mr. Whitmore. The shooting was witnessed by Mr. Whitmore’s friend, Gary Richards. Mr. Whitmore intended to treat the wound himself – he did not want to report the incident to the police because he was a parole violator with an open parole warrant. But when the wound started to spew blood, he agreed to go to the hospital with Mr. Richards and be treated. Ultimately, he named defendant as the shooter, and, when defendant was arrested, defendant gave one oral and two written statements to the police. He claimed that, after he demanded the money for the door, Mr. Whitmore came after him with a knife. At that point, one of his “homeboys,” who was there with him, handed him a gun and he shot Mr. Whitmore in self-defense. For these acts, defendant was charged with Attempted Murder in the Second Degree (Penal Law §§ 110/125.25[1]); Assault in the First Degree (Penal Law § 120.10[1]); two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b], [3]); and Assault in the Second Degree (Penal Law § 120.05[2]) (Queens County Indictment Number 2912/08). Defendant proceeded to a jury trial before the Honorable Michael B. Aloise. At trial, Mr. Whitmore and Mr. Richards testified to the events of the crime. Dr. Kenneth Fretwell testified to the severity of the victim’s injuries and his treatment of them, and Detective Courtney Cummings testified to her interrogation of defendant and his multiple statements. Defendant did not testify. People v. Shane Morris Page 4 APL-2014-00297 March 20, 2015 At the conclusion of the trial, defendant was convicted of the first-degree assault and the weapons charges. He was sentenced, as a second felony offender, to concurrent determinate prison terms of seventeen years on the assault charge, and fifteen years on each of the weapon possession charges, to be followed by five years of post-release supervision. On appeal, defendant raised two claims. First, defendant argued that the court erred when it did not follow proper procedures concerning a jury note requesting a readback, because the court allegedly failed to read the jury note into the record verbatim and also allegedly failed to show it to the parties before calling in the jury and responding to it. Defendant claimed that the court somehow “misled” counsel as to the contents of the note and that this was why counsel failed to object to the court’s response to the note – which was to read back only the direct, and not the full, testimony. The People argued that the claim was unpreserved, and that defendant’s claim that the court’s reading of the note was somehow “misleading” – even though the court read the note into the record virtually verbatim – was factually wrong.1 Second, defendant claimed that the court erred in its reasonable-doubt charge to the jury, because the charge was based on the prior pattern jury instruction and not the current one. Again, the People argued that defendant’s claim was unpreserved. Further, the claim was without merit, as defendant failed to show that any appellate court had ever declared the language of the prior charge defective or inadequate to convey the People’s burden of proof. The Appellate Division reversed based upon the first claim – that the court failed to follow the O’Rama procedure and that this error constituted a mode-of- proceedings error not subject to preservation. People v. Morris, 120 A.D.3d at 836. Specifically, the Second Department found that, because the court read the note to counsel in front of the jury and when it had already prepared the response, counsel was deprived of “meaningful notice” and an opportunity to provide input into the response. Id. The court also held that the court’s response – which was to read back only the direct testimony and not the cross-examination – did not constitute a meaningful response, and that, again, although such error is normally subject to a The note read, “We the jury request a readback of Gary Richard’s testimony,” whereas the1 court’s reading, because it was addressed to the jury, stated, “You requested read-back of Gary Richard’s testimony” (Proceedings: 359)(emphasis added). People v. Shane Morris Page 5 APL-2014-00297 March 20, 2015 preservation requirement, here, counsel did not have an opportunity to object because he learned of the court’s plan to read back only the direct at the same time the jury did. Id. at 837.2 On the same day that the Appellate Division decided this case, it also decided People v. Sydoriak, 120 A.D.3d 840, supra, reversing for similar reasons and on similar facts. In that case, the trial court read the relevant note, verbatim, to the parties, in the presence of the jury, and delivered the requested instructions, and answered the jury’s question about whether it could agree on only some counts but not be considered a hung jury. The Appellate Division concluded that the trial court had failed to meet its “core responsibility” under O’Rama by “failing to apprise counsel of the contents of the notes and the substance of its intended responses before calling in the jury,” and cited to People v. Walston, 23 N.Y.3d 986 (2014), in support of this conclusion as well. The court stated, “[I]t is not evident from the record that defense counsel knew how the trial court would respond to the jury’s inquiry [in one jury note] as to whether it could return a partial verdict. Nor is it evident from the record that defense counsel was aware of how the court would interpret the phrase ‘please repeat 2’ [in a second jury note] or that counsel was aware of which testimony the court would deem to be relevant to ‘why Fresh, a/k/a Kenneth Robinson started shooting,’ as requested in [a third jury note].” In Sydoriak, as here, the court also relied upon, inter alia, People v. Alcide, 21 N.Y.3d 687 (2013), and People v. Tabb, 13 N.Y.3d 852 (2009), but did not cite or distinguish People v. Williams, 21 N.Y.3d 932 (2013).3 Argument In its O’Rama jurisprudence, this Court has drawn a bright line between errors that require preservation and those that are deemed mode-of-proceedings errors. The single, consistent dividing factor has been whether the parties had full As to the alleged error in the reasonable doubt charge, the Appellate Division rejected the2 claim that the charge was constitutionally defective, but admonished the trial court to “rely on the most recent version” of the CJI. Id. at 837. In People v. Nealon, the court relied only on its own line of cases reversing under similar3 circumstances, and cited only to Tabb for the proposition that any failure to follow the O’Rama procedures constitutes mode-of-proceedings error – a principle for which Tabb does not stand – followed by an unelaborated citation to Williams preceded by “cf.” 116 A.D.3d at 887-88. People v. Shane Morris Page 6 APL-2014-00297 March 20, 2015 knowledge of the contents of the note. The timing of that notice – whether before the jury is called out, in the presence of the jury, or, under this Court’s precedent, even after the court has responded to the note – is immaterial to the jurisdictional framework of subsequent appellate review of any alleged deficiencies in the substance of the court’s response or even in the procedure followed by the court. Instead, if counsel had notice of the entire contents of the note, that review is subject to the rules of preservation, and if she did not, then the alleged error is treated as mode-of-proceedings error. Thus, when the trial court discloses the entire contents of the note to counsel, there is no mode-of-proceedings error even though the record lacks any indication of a conference with the parties during which the notes are disclosed or discussed prior to the court’s verbatim and open-court recitation of the notes’ contents. See, e.g., People v. Alcide, 21 N.Y.3d 687 (2013); People v. Williams, 21 N.Y.3d 932 (2013); People v. Ramirez, 15 N.Y.3d 824 (2010); People v. Starling, 85 N.Y.2d 509 (1995); People v. Lykes, 81 N.Y.2d 767 (1993). In none of these cases did the record reveal that the trial court disclosed the notes or discussed its response with the parties before reading the notes out loud and on-the-record in front of the jury, yet this Court still required an objection to preserve the O’Rama claims, or found that the “requirements of CPL 310.30 were not violated.” Lykes, 81 N.Y.2d at 770.4 In fact, in at least one case this Court held that reversal was unwarranted even when the trial court disclosed the contents of a note after it provided its response to the jury. In People v. Kadarko, 14 N.Y.3d 426 (2010), the court received a note indicating that the jury was split on each of the five robbery counts that had been submitted to it. The court informed the parties that it would not disclose the actual vote counts for each split until after it delivered an Allen charge and the jury resumed its deliberations. When the court informed the parties of this plan, and later when the court read the details of the note, counsel did not object. Id. at 429-30. This Court Record in Alcide: AD-1 to AD-2; Record in Williams: AD-3 to AD-9; Appellate Briefs in4 Ramirez and Starling: AD-10 to AD-64; Defendant’s Brief in Lykes: AD-68 to AD-83; Excerpt of Trial Record in Lykes: AD-84 to AD-87; and Respondent’s Brief in Lykes: AD-88 to AD-108. References to a page number preceded by “AD” refer to the addendum filed with the SSM letter in People v. Sydoriak, APPL-2014-00295, filed in this Court on March 4, 2015. The addendum contains excerpts of the records of these cases, the full versions of which are available on this Court’s website. People v. Shane Morris Page 7 APL-2014-00297 March 20, 2015 held that, while the court’s failure to follow the proper O’Rama procedure “may have been error, it was not a mode of proceedings error” exempt from the requirements of preservation. Id. at 430. Only when the notes are not read verbatim; when the notes are not addressed at all; or when the court refuses a defendant access to the notes, has this Court found a mode-of-proceedings error, and has required automatic reversal. See, e.g., People v. Silva, 24 N.Y.3d 294 (2014); People v Walston, 23 N.Y.3d 986 (2014); People v. Kisoon, 8 N.Y.3d 129, 135 (2007); People v. Tabb, 13 N.Y.3d 852 (2009); People v. O’Rama, 78 N.Y.2d 270 (1991). Here, none of these errors occurred. Rather, this case is on all fours with Ramirez, Kadarko, Starling, Lykes, and especially Williams and Alcide, in that here, the contents of the note were read on the record and in the presence of the parties. Under those circumstances, defendant was required to preserve any claim that the court violated O’Rama by failing to disclose or discuss the notes before calling the jury out, by failing to make a record of any such disclosure or discussions if they took place, or by responding to the note in the way it did. And unlike in Silva, Walston, Kisoon, Tabb, or O’Rama, the court did not neglect to address the notes, withhold the contents of the notes, or leave out anything significant. Hence, in light of the similarity between this case and cases like Alcide, Williams, Ramirez, Kadarko, Starling, and Lykes, and the sharp contrast between this case and cases like Silva, Walston, Kisoon, Tabb, and O’Rama, this Court should reverse the Second Department’s decision. In fact, this case is almost exactly like People v. Alcide, 21 N.Y.3d 687, supra. As in that case, the court received a jury note requesting a readback of witness testimony. As in that case, the court informed the parties of the contents of the note5 in front of the jury, but did not omit anything of substance when informing counsel of the contents of the note. As in that case, the court informed the jury and counsel simultaneously of its proposed response to the note. As in Alcide, defendant6 objected neither to the failure of the court to inform him of the note and its contents prior to calling in the jury, nor to the court’s proposed response. Id. at 691. In In Alcide, there were two such jury notes.5 In Alcide, the court informed the jury and counsel that it would read the prosecutor’s6 questions, and the court reporter would read the witnesses’ answers, and that the roles would be reversed on cross-examination. People v. Shane Morris Page 8 APL-2014-00297 March 20, 2015 Alcide, this Court found that the purported errors both in the failure to follow the O’Rama procedures to the letter and in the substantive response were not mode-of- proceedings errors, and therefore required preservation. Id. at 693-94 (citing to People v. Starling, 85 N.Y.2d at 516, People v. Lykes, 81 N.Y.2d 676, supra, and Ramirez, 15 N.Y.3d 824, supra). Specifically, this Court held that, “[a]s in Starling (and Lykes) and unlike O’Rama, the two jury notes – requests for readbacks of two witnesses’ testimony – were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the readbacks. If defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so.” Id. at 694. The Appellate Division in fact cited to Alcide among other cases where this Court held that preservation was not required, but distinguished those cases by stating, in conclusory fashion, that 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 the note (130 A.D.3d at 836), even though the court explicitly said it would do so: “We are prepared to give it to you right now. This is the direct examination testimony of Gary Richards by [the prosecutor]” (A-248).7 In fact, when the Appellate Division cited to Alcide, Starling, and Ramirez, it did so only to quote general principles of law and to reiterate the requirement, under section 310.30 of the Criminal Procedure Law, that there be “meaningful notice.” That court did not discuss at all, much less follow, the jurisprudence of this Court distinguishing those errors that have to be preserved from those that do not. And the Appellate Division did not cite to People v. Williams at all, although Williams is another case virtually identical to this one. In Williams, this It is not even clear that the court did not show the note to the parties before addressing it. 7 In fact, with respect to the next note, which requested substantive clarifications of the law, it appears that defense counsel was aware of the contents of the note before they were put on the record, because his discussion with the court about the proposed answer demonstrates a familiarity with the note’s contents (A-248-49). Nonetheless, because the record does not make clear that the court showed counsel the note beforehand, the People do not rely upon that argument. People v. Shane Morris Page 9 APL-2014-00297 March 20, 2015 Court declined to find that a mode-of-proceedings error had occurred even though the disclosure of the jury note, which asked for “clarification of a legal term,” occurred in front of the jury. The trial court asked the jury to return to the courtroom, and “the court read the note out loud before responding directly to the jury.” Williams, 21 N.Y.3d at 934. The record in Williams contains no indication that there was a colloquy regarding the jury note before the court read the note on the record and delivered its response (Record in Williams: AD-3 to AD-9). On these facts, this Court unanimously rejected defendant’s O’Rama claim, holding, “We are not persuaded by defendant’s argument that a mode-of-proceedings error occurred, when the trial court did not comply precisely with the requirements of People v O’Rama . . . . Where, as here, defense counsel had notice of a jury note and ‘failed to object . . . when the error could have been cured,’ lack of preservation bars the claim.” Id. at 934-35. This case is identical to Williams in that, in each case, there was no indication that the trial court disclosed or discussed the notes before reading them in open court and responding to the inquiries. And, unlike in Williams, the jury did not request any clarification of a legal term. Thus, it was even less probable that counsel needed advance notice of the note in order to contribute to the court’s formulation of its response. Thus, Williams and Alcide, as well as their predecessors, mandate the conclusion that there was no mode-of-proceedings error in this case. But whether paying lip service to Alcide or ignoring Williams, the Appellate Division, as it did in Sydoriak, Nealon, and virtually all the jury note cases before it, misapplied this Court’s precedent in finding that there was mode-of- proceedings error every time the court did not show the note to counsel before it brought in the jury, regardless of whether defendant had full knowledge of the contents of the note. Similarly, that court’s citations to People v. Starling, 85 N.Y.2d 509, supra, and People v. Ramirez, 15 N.Y.3d 824, supra (Morris, 120 A.D.3d at 836; Sydoriak, 120 A.D3d at 841), do not demonstrate that the Appellate Division is faithfully applying this Court’s precedent regarding the need to preserve claims of error such as in this case. In neither Starling nor Ramirez is there any indication in the record that the court discussed the notes with the parties before calling in the jury. To the contrary, exactly as in this case, the court gave notice to the parties in open court, with the jury present, and informed the parties and the jury of its intended response in open court as well (Defendant’s Brief in Starling: AD-37, AD-38, AD-47; People v. Shane Morris Page 10 APL-2014-00297 March 20, 2015 Respondent’s Brief in Starling: AD-61, AD-62; Defendant’s Submission in Ramirez: AD-10 to AD-13; Respondent’s Submission in Ramirez: AD-18, AD-24). In both of these cases, this Court declined to find a mode-of-proceedings error. People v. Ramirez, 15 N.Y.3d at 825-26; People v. Starling, 85 N.Y.2d at 516. Similarly, in People v. Lykes, 81 N.Y.2d 767, supra, to which this Court cited in Alcide, 21 N.Y.3d at 694, this Court rejected the defendant’s O’Rama claim. In Lykes, the trial court sought clarification from the jury regarding one of its notes without defense counsel’s knowledge, and did not discuss the jury’s final, clarified note with defense counsel before responding to it. “In the presence of defendant and counsel,” the trial court “read the last note into the record and proceeded to charge the jury with respect to the legal definitions of the crimes charged.” Lykes, 81 N.Y.2d at 768-69. The record in Lykes did not reveal a conference between the trial court and the parties concerning the jury note before the court read the note on-the-record in the presence of defense counsel, the prosecutor, and the jury, and delivered its response (Defendant’s Brief in Lykes: AD-68 to AD-83; Excerpt of Trial Record in Lykes: AD-84 to AD-87; Respondent’s Brief in Lykes: AD-88 to AD-108). The decisive factor in Lykes is the very same principle reaffirmed by Alcide, Williams, Ramirez, and Starling: where the court reads the note into the record verbatim in front of the jury, defense counsel has “an opportunity to participate . . . . before the court” addresses the jury (Lykes, 81 N.Y.2d at 770), thus satisfying the court’s “core responsibilities” under O’Rama. These cases all stand for the principle that, when a trial court fully discloses the content of a note, a defendant must object in order to preserve a claim of O’Rama error, even if the disclosure takes place in front of the jury rather than before the jury is brought into the courtroom. Nor do the cases in which this Court found mode-of-proceedings error lend support to the Appellate Division’s decisions in Morris and Sydoriak. First, both People v. Walston, 23 N.Y.3d 986, supra, cited to liberally by the Appellate Division, and People v. Tabb, 13 N.Y.3d 852, supra, stand for the proposition that, if the court, in disclosing the content of the note to counsel, leaves out a material word or portion, the error is mode-of-proceedings error. In Walston, the trial court received a note asking for the “judge’s directions on Manslaughter/Murder in the Second Degree – (Intent),” but the court told counsel only that the jury wanted the court’s “directions on manslaughter and murder in the second degree,” and did not mention the note’s “intent” language. Id. at 988. This Court held that “intent” was a material part of the note of which the court had a “core responsibility to inform counsel, and that, People v. Shane Morris Page 11 APL-2014-00297 March 20, 2015 “[w]here the record fails to show that defense counsel was apprised of the specific, substantive contents of the note – as it is in this case – preservation is not required.” Id. at 989-90. In so holding, however, this Court, reiterated that there were errors in jury note procedures that were not mode-of-proceedings errors, and cited to cases where the court read the entire contents of the note into the record in the presence of counsel, even if the jury was already present. Id. at 989. The Court cited specifically to Alcide and Starling as examples of such a proceeding, thus distinguishing Walston from those cases. Id.8 Similarly, in Tabb, the trial court left out a critical term when it read the note in open court. According to the trial record in Tabb, the jury sent a note to the trial court that asked for “[d]irection/explanation on the legal definition of self- defense” (Record in Tabb: AD-65). The record in Tabb reveals that the jury note was marked as a court exhibit, but the record contains no indication that the note was discussed before the jury was called back into the courtroom. Addressing the note in front of the jury, the prosecutor, and the defense, the court stated, “I’m going to explain to you, pursuant to your request, the legal definition of self defense,” and then charged the jury on the law of justification (Record in Tabb: AD-66, AD-67). The Court also cited to People v. Rosario, 81 N.Y.2d 801 (1993), as a case in which counsel8 had full knowledge of the contents of the jury’s note, although that case was reversed on the ground that the court did not allow counsel’s participation in forming a response to subsequent, oral inquiries by the jury, over counsel’s objection. This Court explicitly stated that the claimed error had to be preserved. It reversed because it found that the error had been preserved. Id. at 803. That errors involving the court’s response to a jury’s oral inquiries of which counsel is fully aware, or errors involving counsel’s ability to participate in the formulation of the response or his dissatisfaction with the response must be preserved is well established law, as will be discussed below (see pages 21-22, infra). See generally People v. Ippolito, 20 N.Y.3d 615, 625 (2013) (“Whether or not section 310.30, as interpreted in O’Rama, applies in this situation, where a juror voices a question in open court before deliberations begin, Ippolito’s attorney was required to make a timely objection. He was present when the question was asked and answered, yet failed to object at that time, when the judge could have easily cured the claimed error”); People v Mays, 20 N.Y.3d 969, 971 (2012) (objection required where “defense counsel was aware of the content of the jurors’ comments, which were made out loud in open court, and did not object to anything the judge or prosecutor did in response”); People v. Stewart, 81 N.Y.2d 877, 878 (1993) (preservation required where defendant claimed on appeal that he was denied opportunity to discuss the trial court’s supplemental instructions in response to oral questions). People v. Shane Morris Page 12 APL-2014-00297 March 20, 2015 Manifestly, the trial court did not repeat the word “direction,” and indeed did not even purport to read the note verbatim. Under these facts, this Court held that the record did not indicate that counsel had been informed of the contents of the note, and that there was an “absence of record proof that the trial court complied with its core responsibilities.” Thus, a mode-of-proceedings error had occurred, “requiring reversal.” People v. Tabb, 13 N.Y.3d at 853. It is clear that, in these two cases, the trial court not only did not read the entire contents of the notes into the record or indicate that it had shown the notes to the parties, it also did not convey a substantive word that the jury note contained. And, although this Court noted that the omitted word’s meaning was “ambiguous” in Walston, this ambiguity only “substantiate[d] defendant’s argument that the court failed to meet its core responsibilities of providing defense counsel with meaningful notice.” People v. Walston, 23 N.Y.3d at 990. Similarly, in Tabb, because what the jury was asking for by requesting “direction” was unclear, counsel’s lack of awareness of this part of the request was relevant. The jury could have been asking for re-instruction on the law; it could have been confused over a particular element and asking for further guidance – or “direction” – as to that element; or it could have been requesting something else. In other words, the failure of the trial court in Tabb to tell counsel that the jury had asked for “direction” deprived defense counsel of the opportunity to provide input as to what sort of “direction” the court should give to the jury, or to request that the court ask the jury to clarify the portion of the note that referenced “direction.” Thus, these cases were reversed for only one reason – less-than-full disclosure of the contents of the jury notes. But what neither of these cases turned on, in any way, was the timing of the disclosure. And no cases illustrate this dichotomy better than People v. Kisoon, 8 N.Y.3d 129, supra, and People v. Kadarko, 14 N.Y.3d 426, supra. Both involved jury notes describing an impasse in deliberations, and, in both cases, the note included the details of how the vote was split. In both cases, the court did not inform9 the jury of the vote count – indeed, in Kisoon, the court did not inform counsel that there was a vote count. Kisoon, 8 N.Y.3d at 133; Kadarko, 14 N.Y.3d at 428. But In Kisoon, the note stated that the vote was “10 guilty to 2 not guilty on all three counts.”9 8 N.Y.3d at 132. In Kadarko, the note listed the five robbery counts by date, and indicated the vote on each. Three counts were “11 to1,” one was “10 to 2,” and one was “8 to 4.” 14 N.Y.3d at 428. People v. Shane Morris Page 13 APL-2014-00297 March 20, 2015 in Kadarko, the court stated that, after it delivered an Allen charge, it would show the parties the note, and it did, in fact, do so. 14 N.Y.3d at 428. This Court reversed in Kisoon, finding a mode-of-proceedings error. 8 N.Y.3d at 135 (noting that, had counsel known of the vote count, it might have asked the court to emphasize, in the Allen charge, that jurors not surrender conscientiously held views in order to reach a verdict). But, in Kadarko, the Court held that, while the court’s decision not to disclose the exact contents of the note may have been error, “it was not a mode of proceedings error.” 14 N.Y.3d at 429-30. And the court’s subsequent disclosure of the exact contents of the note was sufficient to cure the error and satisfy the “core responsibilities” defined in O’Rama. Id. at 430.10 Finally, this Court has also found mode-of-proceedings error where counsel is never made aware of the note’s existence at all. People v. Silva, 24 N.Y.3d 294, supra. But this, too, is logical, as, “where there is no indication in the record . . . that defendants ever saw or knew about the jury notes that went unanswered,” “they cannot be faulted for failing to preserve any error.” Id. at 302 (Smith, J., dissenting in part and concurring in part). And again, timing was not a factor in these cases, because the notes were presumptively never disclosed. All of these cases are consistent with the language of O’Rama itself. O’Rama established two things: a fairly bright-line definition of “meaningful notice,” and a preferred, though not mandated, procedure for dealing with jury notes designed to provide that notice. After equating the notice provision of section 310.30 to the response provision, this Court held that, just as the court’s response must be meaningful, so too must the notice. Then, after emphasizing the importance of counsel’s participation in the formulation of the response, this Court stated, “We conclude that ‘meaningful’ notice in this context means notice of the actual specific content of the jurors’ request.” 78 N.Y.2d at 276-77 (emphasis added). The Court went on to hold that the requirement of “meaningful notice” is “best served” in most cases by the procedure outlined in United States v. Ronder, In O’Rama itself, the notes said that the jury was “stalemated” and could not see itself “ever10 reaching a unanimous verdict”; the court summarized the notes as “continued disagreements among the jurors.” The court also refused to disclose the exact vote count in the note because the court thought that such disclosure was inappropriate. 78 N.Y.2d at 275. Notably, counsel sought disclosure of the notes’ exact contents. Id. People v. Shane Morris Page 14 APL-2014-00297 March 20, 2015 639 F.2d 931, 934 (2d Cir. 1981). Under that procedure, jurors’ inquiries must generally be submitted in writing, should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Then counsel should be afforded a full opportunity to suggest appropriate responses. “[T]he trial court should ordinarily (emphasis added) apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information.” When the jury is returned to the courtroom, the note should be read in open court. People v. O’Rama, 78 N.Y.2d at 277-78. But this Court went on to say that the purpose of the decision is not to “mandate adherence to a rigid set of procedures,” but to create guidelines “calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response.” Id. at 278 (emphasis added). It follows then that, as long as counsel has an opportunity to voice an opinion regarding the court’s response, and as long as she is aware of the full contents of the note, the court’s “core responsibilities” have been fulfilled. Moreover, any ambiguity as to which portion of the O’Rama decision constitutes a mandate from which any departure constitutes mode-of-proceedings error, subject to reversal without a showing of prejudice, and which part constitutes a recommended procedure from which any departure constitutes ordinary error, subject to the rules of preservation and harmless error analysis, is resolved by O’Rama’s progeny – a long and detailed line of cases, which illuminate an already bright line. This jurisprudence, without exception, emphasizes substance over timing. As discussed above, where counsel has notice of the “actual specific” contents of the note, any deviations from the procedure outlined in O’Rama requires an objection before it may be considered as a matter of law. However belated that notice – even if it is after the court has given an initial response – counsel must object, and specify the prejudice from either the timing or the inadequacy of the response – before an appellate court may reverse as a matter of law.11 The People do not suggest that disclosure can never come too late – for example, when11 counsel can no longer have input into the response – such as after the verdict. But this Court has made clear, as illustrated by all the cases discussed in this letter, that, even after the court has responded to the note, counsel may still seek to have the response modified, and must object accordingly. People v. Shane Morris Page 15 APL-2014-00297 March 20, 2015 But the Appellate Division has declined to follow this Court’s clear jurisprudence, and has created its own rule under which any deviation from the procedure delineated in O’Rama results in mode-of-proceedings error and automatic reversal. This is particularly egregious in jury-note cases, given that this Court has not sought to expand the “narrow, historical exception” (People v. Patterson, 39 N.Y.2d 288, 295-96 [1976]) to the preservation requirement, which is limited to a “tightly circumscribed class” (People v. Kelly, 5 N.Y.3d 116, 120 [2005]) of errors. 12 Rather, this Court has limited the scope of the mode-of-proceedings rule as it applies to jury note claims. As such, this Court should make clear to the Appellate Division that these reversals, which are so costly, should be limited to cases in which counsel does not have sufficient information to object, because he does not know the full contents of the note. There is good reason to limit the scope of the mode-of proceedings error in O’Rama cases. As Judge Smith noted in his concurring opinion in People v. Walston, an O’Rama-type error is not comparable to other errors that this Court has identified as mode-of-proceedings errors – such as a trial by a jury of less than twelve, shifting the burden of proof, or prosecution without an indictment. People v.Walston, 23 N.Y.3d at 991-92. An O’Rama issue often amounts to an allegation of a charge error, which must be preserved. Notably, in many cases, such as this one, the defendant does not take issue in his appeal with the actual response to the jury note. If the court’s response was proper and defendant was not denied any fundamental right, such errors cannot be deemed mode-of-proceedings errors, as they are not “at a basic variance with the mandate of law,” “irreparably taint[ing]” the entire trial, Patterson, 39 N.Y.2d at 295-96; nor do they “impair the essential validity of criminal proceedings.” Voliton, 83 N.Y.2d at 195-96. Indeed, as will be discussed These exceptions to the preservation requirement are limited to errors that implicate the12 “very organization of the court,” or are “at such variance with the mode of procedure mandated by law that they impair the essential validity of criminal proceedings.” See People v. Voliton, 83 N.Y.2d 192, 195-96 (1994). In other words, such errors encompass only “‘the most fundamental flaws’ that implicate ‘jurisdictional matters or rights of a constitutional dimension that go to the very heart of the process.’” People v. Hanley, 20 N.Y.3d 601, 604-05 (2013) (citations omitted); see also People v. Rivera, 23 N.Y.3d 827, 831 (2014). And, as this Court recently stated, “Not every procedural misstep in a criminal case is a mode of proceedings error. That term is reserved for the most fundamental flaws.” People v. Becoats, 17 N.Y.3d 642, 651 (2011). People v. Shane Morris Page 16 APL-2014-00297 March 20, 2015 below, if defendant here had objected to the court’s response, and if the court had still declined to read the cross-examination, the error would, at most, have been subject to harmless-error analysis, and would have passed that test. In fact, there is a case to be made that this Court should require preservation whenever counsel is aware that there is a note but does not ask to see it. People v.Walston, 23 N.Y.3d at 990-92 (Smith, J., concurring). But even if the Court has so far declined to do so (see People v. Silva, 24 N.Y.3d at 300), it has certainly not expanded the scope of O’Rama mode-of-proceedings errors. The Appellate13 Division, however, treats every error in following the O’Rama procedures as though it were fundamental and as though it deprived the defendant of a fair trial. This approach not only contravenes this Court’s precedent, it ignores the logic behind the precedent. First, if 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. But if counsel is informed of the full contents of the note, and does not object to the response or the deviation from the recommended procedure, then the ground for treating the error as mode-of-proceedings error has been obviated. Again, as will be discussed below, if the court were to follow the O’Rama procedure to the letter, and counsel still declined to object to the court’s response, any error in the court’s response or any claim of ineffectiveness of counsel would be subject to a prejudice test. Second, the cost of treating all errors in following any deviation from the O’Rama procedures as a mode-of-proceedings error is extremely high. Automatic retrial of serious cases, including homicides, sex crimes, and vicious assaults, not only taxes the resources of the courts, the district attorneys’ offices, and even the defense bar throughout the state (and especially in the Second Department), but exacts a high emotional cost from the victims and their families, who are forced to undergo the ordeal of a retrial after having finally achieved some closure. And this In Silva, the issue was not fully presented, as, in that case, it was not clear that the13 defendants were even aware of the notes. 24 N.Y.3d at 300; 24 N.Y3d at 302 (Smith, J., concurring in part and dissenting in part). People v. Shane Morris Page 17 APL-2014-00297 March 20, 2015 cost is borne irrespective of how overwhelming the proof or how non-existent the actual prejudice from the error. Furthermore, in a great number of these cases, the notes were actually disclosed prior to the jury’s return to the courtroom during an off-the-record colloquy. – by far the most likely reason that counsel failed to object when the full contents of the notes were disclosed in open court. Sometimes, there is even a clear inference that the colloquy took place because of a reference to a sidebar just before this disclosure. Allowing for automatic reversal under these facts is even more inequitable and illogical, because it unfairly rewards the defendant’s failure to object despite the trial court’s full on-the-record disclosure, and because the fundamental taint to the trial that is the sine qua non of mode-of-proceedings error never even occurred.14 Third, any other outcome would invite counsel to game the system, creating per se reversible error where the evidence might be overwhelming, where the response to the note was proper, and where the defendant can show no prejudice – and indeed suggests no response that he would have preferred. See People v. Walston, 23 N.Y.3d at 992 (Smith, J., concurring) (“A lawyer might . . . . withhold an objection in reliance on O’Rama, in the hope of obtaining an undeserved reversal”; “Dispensing with the preservation requirement may also invite defense counsel to manipulate the system by remaining silent while error is committed, only to complain of it later”). And if the Appellate Division’s goal in reversing these cases improperly is to motivate the trial courts to follow the O’Rama procedures more rigidly, then theirs is a misguided method, which undermines the respect for that court and this one, as it flouts controlling precedent. Furthermore, in this respect, the error is no different from any other error that courts make – even ones that they make frequently. Judges – as well as prosecutors and defense attorneys – are human. This Court has never demanded that courts not err. It has only demanded that defendants object while the error can be corrected, so as to avoid needless and wasteful retrials. In addition, the Appellate Division has interest-of-justice jurisdiction. C.P.L. §§ This is just the case in one of the related cases currently before the Court (see Nealon, APL-14 2014-00219, Appellant’s Brief and Appendix [resettled record indicated that the jury notes were, in fact, disclosed to the parties prior to the court reading the notes in full and on the record in front of the jury]). People v. Shane Morris Page 18 APL-2014-00297 March 20, 2015 470.15(3)(c), 6(a). Thus, in a case where the evidence is not overwhelming and the error, although not objected to, deprived the defendant of a fair trial, that court may reverse the conviction. In the alternative, the error could be reached under a claim that counsel was ineffective for his failure to object to the court’s response, provided that the defendant could establish prejudice. But it would be the rare case where an error in following the procedures outlined in O’Rama deprived the defendant of a fair trial, even though counsel knew the exact substance of the jury’s request. Thus, such reversals would be appropriately rare. In this case, there is no question that counsel had full notice of the “actual specific” contents of the note. It was read verbatim, with the exception of the pronoun that changed because the court was reading the note to the jury, and thus substituted “you” for “we.” And, contrary to the opinion of the Appellate Division, the court announced what its response was going to be. Thus, counsel had meaningful notice, and ample opportunity to respond. In fact, notwithstanding the opinion of the Appellate Division, defendant himself, in his appellate brief, did not rely on the timing of the disclosure to claim a mode-of-proceedings error. Rather, he claimed that the court did not read the note verbatim, but instead “misled” him as to its contents (Appellant’s Brief at 18-19, 24; Appellant’s Reply Brief at 2-3). Even in his letter to this Court opposing the People’s application for leave to appeal, defendant reverted back to this argument (Defendant’s October 16, 2014, letter at 2). But to the contrary, the court read the note, out loud, in open court, in front of the jury, defense counsel, and the prosecutor, verbatim – changing only “We the jury” to “You,” because the court was addressing the jury. The court then said,15 “We are prepared to give it to you right now. This is direct examination of Gary Richards by Mr. Brennan [the prosecutor],” and that direct testimony was read back. Defendant leaps from this undisputed record to the astounding conclusion that the court “summariz[ed]” the note in a “misleading way” (Defendant’s Brief at 19); that the court “misleadingly indicated that the jury asked to hear only the witness’s direct testimony” (Brief at 24); and that the court dealt with the note “misleadingly,” The note read, “We the jury request a readback of Gary Richard’s testimony,” whereas the15 court’s reading, because it was addressed to the jury, stated, “You requested read-back of Gary Richard’s testimony” (Proceedings: 359; A-248)(emphasis added). People v. Shane Morris Page 19 APL-2014-00297 March 20, 2015 because, “from Judge Aloise’s discussion, defense counsel would have thought that the jury only asked for Richards’ direct” (Letter at 2) (emphasis added). Defendant’s claim that this series of events “misled” counsel is simply not a reasonable or logical reading of the record. To the contrary, it is impossible to believe that, had the court followed the O’Rama protocols to the letter and shown counsel the note, counsel would have walked away with a different understanding of the jury’s request. The jury asked for a readback of a witness’s testimony, and the court informed counsel that the jury had asked for a readback of the testimony. The court did not “add” any “false limitation” to the note.16 In fact, the Appellate Division did not find that there was a misleading “discussion.” Rather, it is precisely the lack of any “discussion” that moved the Appellate Division to find that there was no meaningful notice of the note and no opportunity to provide input into the response. Thus, defendant’s claim that he was “misled” – when he was read the exact and entire contents of the jury note and informed what the court’s exact response would be – is an attempt to sidestep his preservation requirement. In this case, the Appellate Division misapplied and contravened this Court’s unambiguous law regarding O’Rama and mode-of-proceedings error. The Appellate Division has done so in a series of cases, and shows no sign that it will not continue to do so. This will result, as it did here, in further erroneous reversals of cases where the evidence of guilt is overwhelming. The potential burden of retrying these cases can be a heavy one for the People, but the burden is even more onerous for the victims, who may be forced to testify again and relive painful and dehumanizing moments in their lives, all because of unpreserved, insubstantial – and sometimes disproved – deviations from O’Rama. Therefore, this Court should reverse the Appellate Division’s decision and address the Second Department’s ongoing misinterpretation and misapplication of O’Rama, as well as the damaging consequences that flow therefrom, and, in so doing, underscore that deviations from O’Rama cannot affect the mode of proceedings at trial where there is record proof that the court gave defense counsel full notice of the contents of the jury notes. See Appellant’s Reply Brief at 3, to which defendant refers in his letter at page 3, claiming16 that this “corrected the People’s inaccurate reading of the record.” People v. Shane Morris Page 20 APL-2014-00297 March 20, 2015 The second issue presented in this case is the Appellate Division’s holding that the court’s decision to read only the direct examination portion of Richards’s testimony, was not a meaningful response to the note, and that this alleged error, too, did not have to be preserved. The Appellate Division held that defendant’s well established obligation to object to the proposed response did not govern this case, because counsel did not have “‘an opportunity to ask [the court] to alter course.’” Id. (quoting Alcide, 21 N.Y.3d at 694). But here, counsel had even more opportunity than did counsel in Alcide to object, because he could have asked the court to include the cross-examination not only as soon as the court announced its proposed response, but also at any time during the readback or even at the conclusion of the readback. It is undisputed, black-letter law that any objection to the court’s substantive response to the note must be preserved. See, e.g., People v. Wosu, 87 N.Y.2d 935, 936 (1996). Here, if the inconsistencies developed on cross-examination were so important to the jury’s analysis of the evidence – which they were not – then it was for defendant to object and so inform the court. The Appellate Division’s treatment of this alleged error as a mode-of-proceedings error is as erroneous as its treatment of the failure to follow the O’Rama protocols precisely as mode-of- proceedings error, and requires reversal. First, the Appellate Division erred in holding that counsel did not have to object to the court’s proposed response, on the ground that counsel had no opportunity to do so “because he learned of the trial court’s response at the same time the jury heard it.” People v. Morris, 130 A.D.3d at 836. Once again, this contravenes the exact same precedent from this Court cited above. Again, the Appellate Division cited to Alcide for the principle that the counsel has to object so that the court may “alter course” (id. [citing Alcide, 21 N.Y.3d at 694]), but ignored the virtually identical facts presented by this case. In Alcide, the court read the jury note, ostensibly for the first time, in open court, in front of the jury, defense counsel, and the prosecutor. Here, the court read the note, ostensibly for the first time, in open court, in front of the jury, defense counsel, and the prosecutor. In Alcide, the court described its proposed response, ostensibly for the first time, in open court, in front of the jury, defense counsel, and the prosecutor. Here, the court described its proposed response, ostensibly for the first time, in open court, in front of the jury, defense counsel, and the prosecutor. In Alcide, defendant objected neither to the failure of the court to inform him of the note and its contents prior to calling in the jury, nor to the court’s proposed response. Here, defendant objected neither to the People v. Shane Morris Page 21 APL-2014-00297 March 20, 2015 failure of the court to inform him of the note and its contents prior to calling in the jury, nor to the court’s proposed response. In Alcide, this Court found that, “[i]f defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so.” Id. Here, the Appellate Division found that defendant had no such opportunity. The circumstances here are indistinguishable from those in Alcide, except to the extent that counsel here had even more opportunity to protest. In Alcide, the court participated in the readback, playing the role of the witness for the readback of the direct testimony, and the attorney for the cross-examination. Thus, once the readback started, it would have been difficult to protest. But here, counsel could have asked the court to have the cross-examination included in the readback at any time: as soon as the court announced its proposed response, while the readback was in progress, or even after the readback of the direct testimony was complete. Indeed, counsel could have approached the bench even after the jury went back to its deliberations and asked the court to have the jury returned to hear the cross- examination. Thus, it is unfathomable that, given a time line virtually identical to that in Alcide, the Appellate Division came to the opposite conclusion. And the same holds true for every case cited above in which the court read the note for the first time in open court, in front of the jury, and did not discuss the proposed response with counsel before either describing the proposed response to the jury or simply delivering that response. In every such case, counsel was held to his obligation not only to object to the procedure, but to the response itself. See People v. Williams, 21 N.Y.3d 932, supra; People v. Ramirez, 15 N.Y.3d 824, supra; People v. Starling, 85 N.Y.2d 509, supra; People v. Lykes, 81 N.Y.2d 767, supra. Nothing is more illustrative than the cases cited above (see Note 7, supra) dealing with the court’s responses to oral questions from the jury in open court, in the presence of the parties, and the court’s colloquies in response. In every case, this Court found that counsel was fully informed of the contents of the jurors’ inquiries by virtue of his presence in the courtroom, and he was therefore required to object, even though the court’s responses were immediate, and there was no discussion about those responses before they were given to the jury. See People v. Rosario, 81 N.Y.2d at 803(holding that the claimed error had to be preserved, and that it had been); see also People v. Ippolito, 20 N.Y.3d at 625 (“Whether or not section 310.30, as interpreted in O’Rama, applies in this situation, where a juror voices a question in open court before deliberations begin, Ippolito’s attorney was People v. Shane Morris Page 22 APL-2014-00297 March 20, 2015 required to make a timely objection. He was present when the question was asked and answered, yet failed to object at that time, when the judge could have easily cured the claimed error”); People v Mays, 20 N.Y.3d at 971 (objection required where “defense counsel was aware of the content of the jurors’ comments, which were made out loud in open court, and did not object to anything the judge or prosecutor did in response”); People v. Stewart, 81 N.Y.2d at 878 (preservation required where defendant claimed on appeal that he was denied opportunity to discuss the trial court’s supplemental instructions in response to oral questions). There is thus no question that defendant was obliged to object to the court’s proposed response to the note, even though the proposed response was announced in open court in the jury’s presence. Furthermore, contrary to the Appellate Division’s holding, counsel had ample opportunity to ask the court to have the cross-examination of the witness read back, from the time he first heard the court’s response, throughout the readback, and even well afterwards. The Appellate Division also erred in finding that the court’s response was not meaningful, in that the defendant was prejudiced because of the supposed wealth of detrimental testimony to be found in the ten pages of cross-examination (Richards: 170-80; A-59-A-69). But the Appellate Division was able to identify17 only three such instances, none of which was particularly prejudicial. Morris, 120 A.D3d at 837. First, the Appellate Division points to the revelation that the witness was drunk when he was interviewed by the police on the night of the incident. But Richards stated on direct examination that he and the victim had been drinking “40's” on the night of the incident, as they watched the election (Richards: 161-62; A-50-A- 51). Furthermore, his admission to being drunk when the police interviewed him, hours after the incident (Richards: 175: A-64), when he had had plenty of opportunity to drink the additional alcohol that he and the victim had just bought before the defendant shot the victim, had no bearing on his credibility or his ability to observe what happened. In fact, the defendant elicited Richards’s intoxicated state at the time of the interview with the police in the context of his attempt to attack Richards’s Notably, the direct testimony was also ten pages, and redirect was two. Richards was17 simply not a very important witness. The main witness – the victim himself – testified for over sixty pages (Whitmore: 184-216, 219-48; A-73-A-105, A-108-A-137). Furthermore, defendant’s three statements – which told an ever-evolving story – were admitted into evidence (Cummings: 276-84; A-165-A-173). People v. Shane Morris Page 23 APL-2014-00297 March 20, 2015 statements to the police. But this intoxication served only to explain any inconsistencies. The Appellate Division cited to two inconsistencies between the witness’s direct and cross-examination. First, the court referred to the witness’s admission on cross that he had told the police that he did not know the assailant (Richards: 174; A-63), even though he used defendant’s nickname, Blue, on direct, and testified that he had seen him ten or twelve times previously (Richards: 163, 165; A-52, A-54). But this failure to tell the police that he had recognized the assailant was easily explained by the witness’s reluctance to be involved at all. Indeed, both the prosecutor on direct examination and counsel on cross-examination explored this witness’s reluctance to come to court and testify at all (Richards: 159-60, 170-71; A- 48-A-49, A-59-A-60). And, on direct, he explained that he knew the name “Blue” only because the victim addressed defendant by that name. Further, on cross, he admitted to being drunk when the police interviewed him.18 Second, the Appellate Division pointed to the witness’s admission on cross that the victim was carrying one of the bags with beer (Richards: 179; A-68) even though he had testified earlier that the victim had nothing in his hands (Richards: 165, 179; A-54, A-68). But Richards immediately explained that, when asked if the victim was carrying anything, he thought the questions referred to a knife or some similar weapon (Richards: 179; A-68). And his inference that the question referred to a knife was further explained on redirect examination when the prosecutor asked him if he recalled the prosecutor asking him whether the victim had a knife in his hands. Although he could not recall the particulars of his conversation with the prosecutor – he explained that he had been groggy at the time and was now nervous as he testified – it was clear that, when he initially answered questions about whether the victim was carrying anything, he was thinking of the prosecutor’s question regarding a knife (Richards: 180-81; A-69-A-70). More significant than any of these details, however, is the finding by the Appellate Division that these minor inconsistencies, if inconsistencies they were, represented a treasure trove of evidence that could have single-handedly tipped the verdict in defendant’s favor. In any other case – one in which, for example, the court Contrary to the Appellate Division’s characterization, Richards did not say he had been18 telling the truth when he told the police that the assailant was an “unknown black male” (Richards: 174-75; A-63-A-64). People v. Shane Morris Page 24 APL-2014-00297 March 20, 2015 had followed the O’Rama procedures to the letter, letting counsel read the note and stating the proposed response well before the jury was brought out, but counsel had simply not bothered to challenge the court’s proposed response – a claim that the court’s response was inadequate would likely have been rejected on the merits, and most certainly have been found harmless. Or, if the challenge had been to counsel’s effectiveness, the court would have rejected it for lack of prejudice. So impossible is it to allege prejudice from the court’s response to the note, that defendant did not even try. Neither in his initial brief nor in his reply brief did he allege any specific prejudice, or identify any portion of the cross-examination that could have influenced the jury. Appellate counsel, like trial counsel, did not view the cross-examination of this particular witness as having any great significance. Here, any error was, in fact, harmless, because defendant cannot show that the jury would have reached a different verdict given the revised instruction. First, whether it was read back or not, the jury was present at the actual cross- examination, and heard all of the alleged minor inconsistencies. Second, this was a case in which the only issue to be resolved was the credibility of the two witnesses to defendant’s attack – the victim and his friend. Defendant’s identity was not in issue; the only question was whether defendant was justified in shooting the victim, and the court made clear that the People had to disprove justification beyond a reasonable doubt. Against the compelling, non-evasive testimony of the two witnesses, defendant relied upon only his statements to the police – he did not testify. Nor did he produce as a witness, much less name, the “homeboy” who had allegedly handed him the gun when the victim allegedly pulled a knife from his waistband. The jury did not struggle with the verdict, and did not require overnight deliberations. The jury reviewed defendant’s statements, did not require a readback of the victim’s extensive testimony – only of his friend’s – and required only a clarification of the elements of first-degree assault and of whether the defendant could be found guilty of attempted murder but not assault or vice versa. Significantly, the jury did not ask to be recharged on the law of justification. All of this demonstrates that the jury immediately credited the victim and discredited defendant’s statements, and deliberated only as to what charges defendant was guilty of. Thus, there is simply no possibility that the readback of only the direct testimony of a minor witness had any impact on the verdict. People v. Shane Morris Page 25 APL-2014-00297 March 20, 2015 In sum, the court did not commit any mode-of-proceedings error in handling the jury’s note requesting a read back of Gary Richards’s testimony. The court disclosed the full contents of the note to counsel, reading it into the record virtually verbatim. Therefore, any claim that the court failed to follow the exact procedures recommended in O’Rama, or that the court’s response was not meaningful, had to be preserved. The Appellate Division’s holding to the contrary should be reversed. The People ask this Court to conduct the normal course of full briefing and oral argument. First, this Court has recently allowed standard briefing and argument in People v. Kenneth Nealon, APL 2014-00219, another case involving an issue – whether a trial court commits a mode-of-proceedings error under O’Rama when the record does not reflect that it discussed a jury note with the parties before reading the note on the record and verbatim – virtually identical to the one presented here. Second, to the extent that the similarity between the O’Rama issue in this case and the issue in Nealon was the reason why this Court decided that this case should be decided upon submission of letter briefs, this case presents a second, related issue that warrants full briefing and oral argument – the sufficiency and propriety of the court’s response to the note, and the need to preserve that claim. This issue is entirely distinct from the O’Rama issue presented in Nealon, and, thus, warrants full briefing and oral argument. Third, full briefing and argument will not create an undue burden on this Court’s resources because this Court can opt to consolidate this case with Nealon and hear oral arguments on the same day, and decide both cases with one opinion. Fourth, none of the factors listed in 22 NYCRR § 500.11(b) apply to this case: defendant’s conviction was reversed “on the law”; the issue here is not a mixed question of law and fact; the issue is of statewide importance because the Second Department has, and continues, to deviate ever more and more from both this Court’s precedent and the decisions of the other departments of the Appellate Division regarding O’Rama claims, thus creating confusion as to the appropriate legal standard that should be applied; the People specifically declined summary review in our Preliminary Appeal Statement; this Court’s recent O’Rama jurisprudence has not stopped the Second Department’s misinterpretation and misapplication of O’Rama, suggesting that full briefing and argument are necessary to address any confusion or People v. Shane Morris Page 26 APL-2014-00297 March 20, 2015 lack of clarity that persists despite this Court’s pronouncements; and there are no other factors that suggest a letter brief, rather than full briefing and oral argument, is the preferable manner of handling the issues in this case. For these reasons, the People ask that this Court allow the parties to submit full briefs and hold oral argument to address the issues in this case; reverse the Second Department’s decision; and reinstate defendant’s conviction. Sincerely, Sharon Y. Brodt Assistant District Attorney (718) 286-5878 cc: David P. Greenberg, Esq. Appellate Advocates 111 John Street, 9 Floorth New York, New York 10038