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

Brief

N.Y.May 31, 2016

RICHARD A. BROWN DISTRICT ATTORNEY DISTRICT ATTORNEY QUEENS COUNTY 125-01 QUEENS BOULEVARD KEW GARDENS, NEW YORK 11415-1568 (718) 286-6000 July 2, 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 reply to defendant’s opposition letter, dated April 30, 2015, in connection with this Court’s sua sponte review of the merits of this case1 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). The letter was received by this Office on May 4, 2015.1 People v. Shane Morris Page 2 APL-2014-00297 July 2, 2015 As the People argued in their initial letter, this Court has drawn a bright line between errors that are deemed mode-of-proceedings errors and those that are not, determined by the following question: Did counsel have knowledge of the full contents of the note? 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. Here, there is simply no dispute that the court below disclosed the entire contents of the note, virtually verbatim, to defendant, by stating the contents of the note to the attorneys and the jury right before responding to it. Thus, there is no question that this case falls into the line of cases in which this Court found that any claim of error had to be preserved. See People v. Williams, 21 N.Y.3d 932 (2013); People v. Alcide, 21 N.Y.3d 687 (2013); People v. Ramirez, 15 N.Y.3d 824 (2010); People v. Kadarko, 14 N.Y.3d 426 (2010); People v. Starling, 85 N.Y.2d 509 (1995); People v. Lykes, 81 N.Y.2d 767 (1993). Nonetheless, defendant tries to class this case among the cases in which there was not full disclosure because a substantive portion of the note was omitted. See 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). In order to do this, defendant adheres to his argument that the court somehow misled counsel. This argument was not even relied upon by the Appellate Division in its decision to reverse the conviction. Rather, that court found that, by reading the note in front of the jury just before responding to it, the court did not give counsel a chance to respond, and thus did not give defense counsel meaningful notice. But, as discussed in the People’s original submission at pages 6 to 10, the Appellate Division’s basis for its holding contravenes all of this Court’s precedent. Defendant does not dispute this; rather, he chooses to revert to the argument he made in his Appellate Division briefs – that counsel was “misled” (Defendant’s Letter at 14-17). In order to support this argument, defendant engages in a convoluted analysis of events, and relies on the court’s response to the note – the readback of the direct testimony – to argue that the court’s completely accurate description of the jury’s request – “You requested read-back of Gary Richard’s testimony” – coupled with its response – “This is the direct examination of Gary Richards by [the prosecutor]” (Proceedings: 359) – implied that the note said something other than People v. Shane Morris Page 3 APL-2014-00297 July 2, 2015 what the court had just told everyone present it said – that the jury had requested a readback of Richards’s testimony. But defendant is not free to manufacture error where none exists. Defendant leaves out the critical language intervening between the two phrases he connects – the language that makes absolutely clear that the court was finished reading the note. After the court read the note requesting Gary Richard’s testimony, and before mentioning the direct examination, it announced, “We are prepared to give it to you right now.” This phrase could not have been part of the note itself, and was indeed the opening phrase of the court’s response. No one listening could have been confused: the note said what the court said it said, and the court was prepared to respond to that note when it called the jury out. At best, defendant can attempt to glean from the record that trial counsel was not paying attention – although even that inference is not supported by this record. And, even were that true, counsel’s failure to pay attention to a discrepancy between the jury’s request and the court’s response does not yield a mode-of- proceedings error; it yields, instead, a classic failure to object. But, in fact, there is simply no evidence that counsel did not understand the note. Either way, the court did not fail in its duty to convey the full contents of the note to counsel, and did not “mislead” anyone by doing precisely it should have, announcing how it intended to respond before delivering the response. The court did not “interpret” the note incorrectly; therefore, “the palpably substantive issue of the extent of the readback” did not “become a question” (Defendant’s Letter at 14 [emphasis in original]) simply because the court announced how it would respond. Similarly, contrary to defendant’s characterization, the court did not couple its – accurate – reading of the note with “surplusage suggesting” that the note said something other than what it said (Defendant’s Letter at 15). Rather, that “surplusage” was the proposed response to the note. And finally, defendant cannot bootstrap the actual response – the readback of the direct testimony – to the response that the court announced it was about to give – the readback of the direct testimony – to argue that the former reinforced the misleading nature of the latter (Defendant’s Letter at 16). Ultimately, defendant jumps to the conclusion that it was the mere failure to show counsel the note in advance that made the difference between the way that People v. Shane Morris Page 4 APL-2014-00297 July 2, 2015 counsel understood the note and what the note actually said (Defendant’s Letter at 16- 17) – again referencing the perceived, but not actual, discrepancy between the verbatim reading of the note and the note itself. But this is at best creative speculation, premised on an ambiguity the record reflects simply did not arise. Moreover, defendant’s insistence that a mode-of-proceedings error occurs in the absence of handing the note to defense counsel prior to calling out the jury contravenes this Court’s clear and unambiguous jurisprudence. An opportunity in advance to read and digest the note is optimal, and is recommended by the O’Rama protocols. But the absence of such an opportunity does not turn ordinary error into mode-of-proceedings error. If it did, this Court’s decisions in Alcide, Williams, Ramirez, Kadarko, and Starling could not have come out the way they did. As long as counsel is told the full contents of the note, he must object to any failure to follow the precise O’Rama protocols and, more important, to any deficiencies in the court’s response to the note. Counsel had that opportunity here, he simply failed to object. In the second part of his argument, defendant claims that the Appellate Division’s holding that the court’s response to the note was not “meaningful,” and that this was mode-of-proceedings error, should also be affirmed (Defendant’s Letter at 17-18). But this Court has never held that errors in a court’s substantive response to a note, however egregious, are not subject to the rules of preservation. Rather, this Court has only ever held that no response at all – coupled with a failure to inform the parties of the note at all – is a mode-of-proceedings error. People v. Silva, 24 N.Y.3d 294, supra. And this Court has held that where, as here, a defendant has had notice of the full contents of the note and is informed of the court’s intended response, the burden shifts to him to object to the way in which the court responds to the note. See People v. Alcide, 21 N.Y.3d at 693-94 (citing People v. Ramirez, 15 N.Y.3d at 826; People v. Starling, 85 N.Y.2d at 516); People v. Wosu, 87 N.Y.2d 935, 936 (1996). Defendant analyzes Silva at length, pointing to this Court’s rejection of a prejudice test dealing with a court’s failure to respond to a jury note at all prior to the jury’s returning a verdict. The Silva decision makes clear, however, that this Court is not overturning its entire jurisprudence concerning meaningful response in order to mandate automatic reversal when a defendant has ample opportunity to object to the court’s response to a note but sits silently by and allows an unsatisfactory response to be given. Rather, as noted above, this Court’s holding in Silva applies only to a complete failure to respond to a note – and only where counsel was not made aware of the note at all. People v. Silva, 24 N.Y.3d at 300-01. People v. Shane Morris Page 5 APL-2014-00297 July 2, 2015 Notably, defendant does not make any showing of prejudice. Rather, he relies on – and in fact quotes in its entirety – the Appellate Division’s recitation of the gold to be found in the hills of the cross-examination (Defendant’s Letter at 8-9, 20). But the People’s Appellant’s letter showed that this gold was not even pyrite – it simply yielded nothing that hurt Mr. Richards as a witness. Instead, it showed him to be a candid witness, not at all evasive in answering counsel’s questions. And, to the extent that counsel elicited any inconsistencies at all, those were explained immediately or on redirect. Indeed, defendant does not rebut the People’s argument that there was nothing of worth elicited on cross-examination at all. The only factual claim that he disputes is the People’s statement that Richards was not a very important witness, which he does by stating that the prosecutor referred to Richards “repeatedly” during his opening and summation (Defendant’s Letter at 20). Defendant of course mischaracterizes these “repeated” references. The only references to Richards in the opening were to his being there with the victim and to his encouraging the victim to call the police because of the heaviness of the bleeding – there was no reference to what Richards’s testimony would be (Proceedings: 132- 33, A-21-22). And on summation, there were four references to Richards: the first was an isolated statement that Richards was “there” (Proceedings: 326, A-215); the second simply referred to Richards – along with the victim – in the argument that defendant “wants you to discredit” their testimony (Proceedings: 332, A-221); the third was a reference to Richards’s candor in saying the he did not want to testify and that he was no longer friends with the victim, that he nonetheless “told you what he saw,” and that this version was the only one that made sense (Proceedings: 33, A- 222); and the fourth was that Richards had heard two shots (Proceedings: 335, A- 224). Thus, the prosecutor did not either retell in detail or rely upon the specifics of Richards’s testimony. Notably, defense counsel, in his summation, did not dwell on the alleged gold-mine of Richards’s cross-examination. In a summation devoted to attacking the credibility of the victim and the allegedly shoddy police investigation, he refers only to Richards’s affirmation on cross-examination that the victim was not carrying a knife, and Richards’s explanation of why he had not mentioned that the victim had the beer in his hands (Proceedings: 316, A-205). But because this was fully explained both on cross-examination and on redirect (see People’s Letter at 23), a read back of this testimony would not have helped defendant – to the contrary, the jury was left with counsel’s characterization of the inconsistency rather than the explanations clarifying the inconsistency. People v. Shane Morris Page 6 APL-2014-00297 July 2, 2015 Because defendant cannot show prejudice, he relies on his argument that prejudice is not required. But, as the People noted in their original submission (People’s Letter at 7-8), this case is on all fours with Alcide, in which the court read the note for the first time in front of the jury and then announced its intention to assume the role of the prosecutor during the readback of the direct testimony of the People’s witnesses, and the role of the witness during the readback of the cross- examination. Despite the defendant’s claim that both the disclosure of the note at that time and the court’s method of responding constituted mode-of-proceedings errors, the court found that neither was, and that, if the defendant was unhappy with the court’s method of responding to the note, “he certainly had an opportunity to ask him to alter course, and it behooved him to do so.” Alcide, 21 N.Y.3d at 694. So too, here, defendant argues that the response was, in and of itself, a mode-of-proceedings error. But, as discussed in the People’s original submission, defendant had ample opportunity to object to the court’s response – more so even than the defendant in Alcide – and had simply to ask the court to read the whole testimony (People’s Letter at 20-21). Morever, defendant argues that the omission of cross-examination testimony in a readback should be deemed per se reversible error, without reference to prejudice (Defendant’s Letter at 19). But, of course, this is not the law. Not only is it commonplace for courts to offer partial readbacks even where the jury has not specified that it wants only a partial readback, but this Court has never held that such a response cannot be “meaningful.”2 And, in a most telling example, the Second Department itself recognized that this second part of the requirement under section 310.30 is subject to the rules of preservation. In People v. Smith, 68 A.D.3d 1021, 1022 (2d Dept. 2009), the court reversed a conviction based upon two instances of the trial court failing to give a The Appellate Divisions have held on numerous occasions that this type of response can be2 meaningful. See People v. Gauze, 3 A.D.3d 538 (2d Dept. 2004); People v. Deoleo, 295 A.D.2d 623 (2d Dept. 2002); Latchman, 251 A.D.2d at 683; People v. Gabot, 176 A.D.2d 894 (2d Dept. 1991); People v. Gadson, 161 A.D.2d 795 (2d Dept. 1990); People v. Hawkins, 173 A.D.2d 358, 358-59 (1 Dept. 1991); see also People v. O’Kane, 237 A.D.2d 205 (1 Dept. 1997); People v. Felix, 181st st A.D.2d 584 (1 Dept. 1992). Although, in most of these cases, the court told the jury that it couldst request that additional testimony be read back, the import of the cases is that it cannot be per se reversible error to read back only part of what the jury note requested. People v. Shane Morris Page 7 APL-2014-00297 July 2, 2015 meaningful response to jury notes requesting readbacks. As to the first note, the court gave an incomplete readback over the defendant’s objection. Id. As to the second, the court completely failed to respond to a request for a readback of cross- examination; the Second Department noted that the defendant had failed to preserve the claim, but it reached the claim in the interest of justice. Id. Notably, as to both notes, the Second Department found serious prejudice. Id.; see also People v. McArthur, 113 A.D3d 1088, 1089 (4 Dept. 2014); People v. Gathers, 10 A.D.3d 537th (1 Dept. 2004); People v. Howard, 267 A.D2d 1006, 1007 (4 Dept. 1999), leavest th denied 95 N.Y.2d 838 (2000), cert. denied 532 U.S. 999 (2001). Again, as noted in the People’s original letter at pages 22-24, the Second Department’s finding of prejudice is highly questionable. Defendant himself never made any argument in his appellate briefs that he was prejudiced, much less identified any specific prejudice. And, as noted above, in his response in this Court, he does not identify any additional prejudice – he merely quotes the Appellate Division decision verbatim (Defendant’s Letter at 20). But the People explained these minor discrepancies completely in their letter (People’s Letter at 22-23), and defendant offers no answer to these explanations at all. Finally, defendant, in an inappropriately ad hominem diatribe, faults the People for making policy arguments, instead of answering those arguments. First, defendant argues that, rather than ask this Court to rein in the Second Department in its inappropriate reversals in these cases, “the District Attorney [would be] better advised to train his trial assistants to insist on making a record of all discussions of jury notes” (Defendant’s Letter at 21-22). This argument is surely a textbook case of irony; not only is it generally the law that the burden of preservation is on the defendant raising the claim of error – because it is he who is seeking the new trial – but the law here is that it is defendant who must object to any departure from O’Rama protocol where he is informed of the note and its contents. Defendant seeks not to be held to his burden, but he has no problem shifting it to the People – on whom the burden has never been laid. Moreover, it is ultimately the court’s responsibility to handle the jury notes. While a prosecutor can make suggestions, it is the court that decides when and how to inform counsel, when to call the court reporter back to the courtroom, and how to respond to the note. And it is the defendant’s responsibility to object when the court errs in its handling of the note – as with all errors that a court makes except mode-of-proceedings errors – because, as noted above, it is he who seeks to benefit People v. Shane Morris Page 8 APL-2014-00297 July 2, 2015 from the error by getting a new trial. See People v. Olivo, 52 N.Y.2d 309, 320 (1981); People v. Jackson, 196 N.Y. 357, 362-63 (1909). Of the parties in the courtroom, then, the prosecutor is the last one who bears responsibility for the error. Second, defendant misconstrues the People’s policy arguments as to this Court’s recent jurisprudence with respect to this issue. The People explicitly recognize that this Court has declined to narrow the scope of O’Rama mode-of- proceedings error even further (People’s Letter at 16). The People do not argue that this Court should cut back the scope even further, and do not cite the dissents/concurrences in Silva or Walston for that purpose. Rather, the People argue that the Second Department has ignored this Court’s jurisprudence narrowly circumscribing O’Rama mode-of-proceedings error, and argue that it is important that the Second Department not be allowed to expand the scope of such error, for the many policy reasons cited.3 In sum, defendant has failed to demonstrate that his case is, in any way, distinguishable from People v. Alcide and this Court’s numerous other cases requiring that a defendant who is informed of the entire contents of a jury note preserve any claim that a court has departed from O’Rama protocols or has not responded to the note to his satisfaction. Rather, defendant attempts to resurrect his argument that he was “misled” as to the note’s contents – even though the note was read virtually verbatim. Because this argument flies in the face of reality, it should be rejected, and the decision of the Appellate Division, Second Department, should be reversed. Sincerely, Sharon Y. Brodt Assistant District Attorney (718) 286-5878 Nonetheless, the argument in favor of requiring a defendant to object any time that he is3 aware of a note and has not been shown the note is not frivolous – it has been promulgated by at least two judges of this Court, in well thought out and articulated opinions. People v. Silva, 24 N.Y.3d at 301-02 (Smith, J., dissenting); People v. Walston, 23 N.Y.3d at 990-92 (Smith and Abdus-Sallam, JJ, concurring). Thus, defendant’s contempt for this argument is unwarranted. People v. Shane Morris Page 9 APL-2014-00297 July 2, 2015 cc: David P. Greenberg, Esq. Appellate Advocates 111 John Street, 9 Floorth New York, New York 10038