The People, Appellant,v.Anner Rivera, Respondent.BriefN.Y.May 8, 2014To be argued by KATHLEEN WHOOLEY (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ANNER RIVERA, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT APL-2013-00175 LYNN W. L. FAHEY Attorney for Defendant-Appellant 2 Rector St., 10th Floor New York, N.Y. 10006 (212) 693-0085 Kathleen Whooley Of Counsel November 26, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . 6 Introduction.. . . . . . . . . . . . . . . . . . . . 6 The People’s Case. . . . . . . . . . . . . . . . . . 8 The Defense Case.. . . . . . . . . . . . . . . . . . 13 The Jury Charge and Deliberations. . . . . . . . . . 16 The Ex Parte Conversation with Juror Number 11.. . . 17 Verdict and Sentencing.. . . . . . . . . . . . . . . 20 The Appellate Division’s Decision. . . . . . . . . . 20 ARGUMENT THE APPELLATE DIVISION CORRECTLY HELD THAT, WHEN THE COURT CONDUCTED AN EX PARTE CONVERSATION WITH A DELIBERATING JUROR ABOUT THE VERY ISSUE THE JURORS WERE STRUGGLING TO DECIDE, IN VIOLATION OF MR. RIVERA’S CONSTITUTIONAL RIGHT TO BE PRESENT, IT COMMITTED A “MODE OF PROCEEDINGS ERROR” THAT COULD NOT BE “CURED” BY ITS SUMMARIZING OF THE CONVERSATION FOR MR. RIVERA AND THE ATTORNEYS AFTER THE FACT.. . . . . . . . . . . . . . . . . . . . . . 22 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 48 -i- TABLE OF AUTHORITIES Cases Page No. Brewer v. Williams, 430 U.S. 387 (1977).. . . . . . . . . 29 Illinois v. Allen, 397 U.S. 337 (1970). . . . . . 2, 23, 30 Gable v. State, 31 Ala. App. 280 (Ala. Ct. App. 1943).. . 40 Johnson v. Zerbst, 304 U.S. 458 (1938). . . . . . . . . . 29 Maurer v. People, 43 N.Y. 1 (1870). . . . . . . . . . 27-28 People ex rel. Lupo v. Fay, 13 N.Y.2d 253 (1963). 3, 27, 41 People v. Ahmed, 66 N.Y.2d 307 (1985).. . . . . . . . . . 28 People v. Alcide, __ N.E.2d __, 2013 WL 5566450 (October 10, 2013).. . . . . . . . . . . . . 26, 42, 43 People v. Bragle, 88 N.Y. 585 (1882). . . . . . . . . . . 39 People v. Bonaparte, 78 N.Y.2d 26 (1991) .. . . . . . . . . . . . . . . . . 2-4, 25, 28, 31, 37 People v. Cain, 76 N.Y.2d 119 (1990) .. . . . . . . . . . . . 2-3, 23, 25-28, 32, 39, 42-43 People v. Callahan, 80 N.Y.2d 273 (1992). . . . . . . . . 29 People v. Camacho, 90 N.Y.2d 558 (1997).. . . . . . . . . 24 People v. Cassell, 62 A.D.3d 1021 (2d Dep’t 2009).. . . . 26 People v. Chisolm, 85 N.Y.2d 945 (1995).. . . . . . . 2, 23 People v. Ciaccio, 47 N.Y.2d 431 (1979).. . . 2-3, 25-27, 31 People v. Colascione, 22 N.Y.2d 65 (1968) . . . . . . 3, 27 People v. Collins, 99 N.Y.2d 14 (2002). . . . . . . . . . 26 People v. Cook, 85 N.Y.2d 928 (1995). . . . . . . . . 26, 43 -ii- TABLE OF AUTHORITIES (con’d) People v. Cordero, 308 A.D.2d 494 (2d Dep’t 2003).. . . . 40 People v. Corely, 67 N.Y.2d 105 (1986). . . . . . . . . . 29 People v. Davis, 75 N.Y.2d 517 (1990).. . . . . . . . . . 29 People v. DiSimone, 80 N.Y.2d 273 (1992). . . . . . . . . 30 People v. Dokes, 79 N.Y.2d 656 (1992).. . . . . . . . . . 24 People v. Epps, 37 N.Y.2d 343 (1975). . . . 2, 23-24, 29-30 People v. Favor, 82 N.Y.2d 254 (1993).. . . . . . 24, 40-41 People v. Galdamez, 234 A.D.2d 608 (2d Dep’t 1996). . . . 28 People v. Harris, 61 N.Y.2d 9 (1983). . . . . . . . . 30, 45 People v. Harris, 76 N.Y.2d 810 (1990). . . 3, 25-26, 28, 37 People v. Kadarko, 14 N.Y.3d 426 (2010).. . . . . . 5, 34-37 People v. Kelly, 5 N.Y.3d 116 (2005). . . . 5, 34, 36-37, 45 People v. Kisoon, 23 A.D.3d 18 (2d Dep’t 2005). . . . . . 27 People v. Kisoon, 8 N.Y.3d 129 (2007).. . . . . . . . 3, 27 People v. La Barbera, 274 N.Y. 339 (1937).. . . . . . . . 32 People v. Lopez, 6 N.Y.3d 248 (1006). . . . . . . . . . . 30 People v. Mehmedi, 69 N.Y.2d 759 (1987) .. . . . . . . . . . . . . . . 3-4, 23, 25, 28, 37, 39 People v. Morales, 80 N.Y.2d 450 (1992).. . . 24, 38-39, 41 People v. Mullen, 44 N.Y.2d 1 (1978). . . . . . . . . 28, 45 People v. Ochoa, 14 N.Y.3d 180 (2010).. . . . . . . . . . 25 People v. O’Rama, 78 N.Y.2d 270 (1991) .. . . . . . . . . . . . . . 4, 6, 23, 26-27, 42-43, 47 -iii- TABLE OF AUTHORITIES (con’d) People v. Parker, 57 N.Y.2d 136 (1982). . 4, 24, 29, 32, 45 People v. Rodriguez, 85 N.Y.2d 586 (1995).. . . . . . . . 24 People v. Roman, 88 N.Y.2d 18 (1996). . . . . . . . . 24, 41 People v. Starling, 85 N.Y.2d 509 (1995). . . . . . . 35-36 People v. Torres, 72 N.Y.2d 1007 (1988).. . . . . . . 25, 32 Snyder v. Massachusetts, 291 U.S. 97(1934). . . . . . . . 23 Statutes and Constitutions C.P.L. § 260.20.. . . . . . . . . . . . . . . . . . . 23-24 C.P.L. § 310.30 . . . . 3, 5-6, 23, 25-26, 28, 33, 42-43, 47 N.Y. Const., Art. I, § 6. . . . . . . . . . . . . . . . . 23 U.S. Const., Amend. V.. . . . . . . . . . . . . . . . . . 22 U.S. Const., Amend. VI. . . . . . . . . . . . . . . . . . 22 U.S. Const., Amend. XIV.. . . . . . . . . . . . . . . . . 23 -iv- COURT OF APPEALS STATE OF NEW YORK _____________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANNER RIVERA, Defendant-Respondent. _____________________________________ PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, the People appeal from a January 23, 2013, decision and order of the Appellate Division, Second Department, reversing a November 23, 2009, judgment of the Supreme Court, Kings County, that convicted respondent Anner Rivera, after a jury trial, of second-degree criminal possession of a weapon. By order dated August 22, 2013, this Court granted Mr. Rivera poor person relief and assigned Lynn W. L. Fahey as appellate counsel. Mr. Rivera is incarcerated on remand status on the pending charge of second-degree criminal possession of a weapon. 1 QUESTION PRESENTED Whether the Appellate Division correctly held that, when the court conducted an ex parte conversation with a deliberating juror about the very issue the jurors were struggling to decide, in violation of Mr. Rivera’s constitutional right to be present, it committed a “mode of proceedings error” that could not be “cured” by its summarizing of the conversation for Mr. Rivera and the attorneys after the fact. SUMMARY OF ARGUMENT The Appellate Division, Second Department, was correct to reverse Mr. Rivera’s conviction and order a new trial because the trial court committed a mode of proceedings error when it engaged in an ex parte conversation with a deliberating juror, in Mr. Rivera’s absence, that went to the heart of the issues the jurors were struggling to decide without notice to and input from counsel. A criminal defendant has a constitutional right to be present at all material stages of his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970); People v. Chisolm, 85 N.Y.2d 945, 947 (1995); People v. Epps, 37 N.Y.2d 343, 345 (1975). This includes an “absolute” right to be present during “all proceedings dealing with the court’s charge, admonishments and instructions to the jury.” People v. Ciaccio, 47 N.Y.2d 431, 436 (1979); see also People v. Bonaparte, 78 N.Y.2d 26, 30 (1991); People v. Cain, 76 N.Y.2d 119, 123 (1990); People v. 2 Mehmedi, 69 N.Y.2d 759, 760 (1987); C.P.L. § 310.30. In particular, this right requires a defendant’s presence during any “supplemental” instructions given after the jury has begun deliberating, since they “may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves.” Ciaccio, supra, 47 N.Y.2d at 436-437; Cain, supra, 76 N.Y.2d at 123-124. Because there are few moments more “critical” to the outcome of a trial than when the court responds to a deliberating jury’s request for additional guidance, People v. Kisoon, 8 N.Y.3d 129, 134-135 (2007), it is a “settled rule” that the absence of the defendant during supplemental instructions to the jury is “fatal to the verdict.” People v. Colascione, 22 N.Y.2d 65, 69-70 (1968); People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 257 (1963). The error of excluding the defendant from such instructions “implicates ‘the organization of the court or the mode of proceedings prescribed by law’ and present[s] [a] reviewable question[] of law even in the absence of a timely objection.” Bonaparte, supra, 78 N.Y.2d at n* (quoting Mehmedi, supra, 69 N.Y.2d at 760); see People v. Harris, 76 N.Y.2d 810, 811-812, n* (1990). Moreover, a substantive colloquy with a deliberating juror in the absence of counsel violates the clear requirements of C.P.L. § 310.30 3 and People v. O’Rama, 78 N.Y.2d 270 (1991), also a mode of proceedings error. Mehmedi, supra, 69 N.Y.2d at 760. In this case, after it became apparent that the jury was struggling with the central justification issue, the trial court conducted a private robing room colloquy with Juror Number 11, during which the juror asked when, “by the law,” he and his fellow jurors could “deem defendant . . . responsible” (585). The court responded that this was a question of fact, and instructed the juror to “look at the evidence” and “evaluate what you’ve heard” in order to “make a decision” (585-586). Because the evaluation of Mr. Rivera’s justification defense was precisely the “subject of [the jury’s] deliberations,” Bonaparte, supra, 78 N.Y.2d at 31, this conversation cannot be considered “ministerial” in any sense. The record is devoid of any indication that Mr. Rivera personally exercised a knowing, voluntary, and intelligent waiver of his right to be present for it. See People v. Parker, 57 N.Y.2d 136, 140-141 (1982). The People’s argument that this error was “substantially cured” by the trial court when it subsequently “explain[ed] to defendant and his attorney what had happened in their absence, and [] inform[ed] them that they could hear a readback of the court’s discussion with the juror” is without merit (People’s Brief at 20). 4 At the heart of the People’s argument is their assertion that, when read together, People v. Kadarko, 14 N.Y.3d 426 (2010), and People v. Kelly, 5 N.Y.3d 116 (2005), stand for the proposition that what would otherwise constitute a mode of proceedings error must be preserved when the trial court “substantially cures” the error by taking “appropriate steps” (People’s Brief at 19, 25, 27). The People, however, fundamentally misread these cases. In neither case did this Court find that a mode of proceedings error had been “cured,” only that no mode of proceedings error had ever been committed. In Kadarko, the trial court never violated the notice requirements of C.P.L. § 310.30 because, even before the full jury note was revealed, counsel had “meaningful notice of the contents of the jury note [and] an opportunity to respond.” In Kelly, the court officer’s conduct did not amount to an usurpation the trial court’s supervision and was, in any event, ministerial. Moreover, even assuming arguendo that such an error could possibly be cured, it is abundantly clear that the “remedial steps” taken in this case could not suffice. The People assert that, by summarizing the conversation “immediately after” it occurred, the court gave Mr. Rivera “an opportunity to provide input . . . at a time when any error could have been corrected or any appropriate further instruction could 5 have been given” (People’s Brief at 36). But Mr. Rivera’s right to be present went beyond the right to provide “input,” and encompassed the right to witness the exchange as it occurred. The People’s purported remedy also fails to comport with the requirements of C.P.L. § 310.30 and O’Rama for providing for the attorney’s input before a response is given. In short, the Appellate Division’s decision to reverse respondent’s convictions was the right one, and should be affirmed. STATEMENT OF FACTS Introduction Respondent Anner Rivera was charged with second-degree murder and second-degree criminal possession of a weapon following the shooting death of Andres Garcia. At trial, Mr. Rivera admitted possessing a gun and shooting Garcia, but said he grabbed the gun only after one of Garcia’s companions held a gun to his friend Thomas (“Milk”) Gomez’s head, and that he fired only after Garcia shot Milk. The court charged the defense of justification with respect to all counts, including weapon possession. During jury deliberations, after it became clear that the jury was struggling to understand justification, Juror Number 11 asked to speak with the court. At the suggestion of the district 6 attorney and defense counsel, but apparently without Mr. Rivera’s input, and clearly without his waiving his constitutional right to be present, the court spoke privately with this juror in the robing room. In the absence of both counsel and Mr. Rivera, the juror sought additional guidance, at some length, about justification and when, “by the law,” “to deem defendant . . . responsible.” The court instructed him repeatedly to “work it out,” “look at the evidence,” and “evaluate what you’ve heard and make a decision.” Following this conversation, the court reported to counsel and Mr. Rivera that the juror wanted to know when someone could be in “imminent danger,” and said that defense counsel could request a read back “at some point.” Mr. Rivera was subsequently acquitted of second-degree murder and first-degree manslaughter, but convicted of second- degree criminal possession of a weapon (possession outside the home or place of business). The Appellate Division, Second Department, reversed the conviction and ordered a new trial. Emphasizing Mr. Rivera’s constitutional and statutory rights to be present at all material stages of his trial, if found that the trial court’s ex parte conversation with the deliberating juror concerning the substantive legal and factual issues of the trial was a mode of proceedings error. 7 The People’s Case In the early morning hours of October 6, 2007, Kenneth Davis, Richard Cintron, Cintron’s girlfriend Krystal Hernandez, the decedent Andres Garcia, and “John” partied together at a Manhattan club (Davis: 25-26; Cintron: 80; Hernandez: 310-311). Around 4:00 a.m., John drove them all1 back toward Sullivan Street in Red Hook, Brooklyn, where Davis and Cintron had left their cars (Davis: 27-28; Cintron: 81-82; Hernandez: 312). While stopped at a gas station en route, Cintron became upset by a phone call he had received from a friend named “Eric,” and decided to call Mr. Rivera, who had been an acquaintance for 4 or 5 years (Cintron: 78-79, 102, 121; Hernandez: 312). Although Mr. Rivera owed Cintron almost $2,000 for a car “from way back,” Cintron denied at trial that they had a “beef” or that he had been pressuring Mr. Rivera to pay him (78-80, 108-113). Cintron spoke “just a couple of words” to Mr. Rivera, who then passed the phone to his friend Thomas Gomez (“Milk”); when Milk “started going crazy,” Cintron passed his phone to Garcia, who had a heated conversation with Milk (Cintron: 83-84, 102-104, 113). Numbers in parentheses, including Roman numerals,1 refer to the People’s Appendix. 8 John dropped Cintron, Garcia, Davis, and Hernandez off on Sullivan Street around 4:30 or 5:00 a.m. at a garage where they would sometimes “hang out” (Davis: 66-67; Cintron: 84). Davis and Hernandez testified that Milk and Mr. Rivera arrived almost immediately, but Cintron testified that he and his friends talked “for a little bit” and Garcia spent a few minutes in the garage before Milk and Mr. Rivera arrived (Davis: 28, 39; Cintron: 84, 115-117; Hernandez: 313, 315, 319-320). Cintron denied telling Milk and Mr. Rivera to come “settle the situation”; he “guess[ed]” they “just showed up” (102, 104, 116, 122). When Milk exited the car, he was “talking crazy,” telling someone on the phone to “come quick, bring guns, bring guns, bring guns” (Davis: 30, 54-56). Milk and Garcia argued, and Milk threatened Cintron and told him Mr. Rivera was not going to pay him (Davis: 31, 58-59; Cintron: 84-86, 114; Hernandez: 314-316, 318). At some point, Milk’s brother also arrived, but neither he nor Mr. Rivera said much (Davis: 35-36; Cintron: 84, 86; Hernandez: 316, 320). Davis and Hernandez claimed that, after Milk and Garcia had argued for “maybe five minutes,” Mr. Rivera pulled out a gun and they heard “a lot” of shots fired (Davis: 42-43, 61- 63; Hernandez: 322). Neither witness could remember what the argument had been about, but both identified Mr. Rivera in 9 court (Davis: 31-32, 39, 58; Hernandez: 314-315, 319-320). Hernandez saw Mr. Rivera shoot at Garcia (322). Although Davis and Hernandez denied seeing anyone else with a gun, they could not say who fired all the shots or who fired first (Davis: 42-43, 62, 66; Hernandez: 321-322, 336- 337). Upon hearing shots, Davis immediately ran up the block to a store to call the police, while Cintron pulled Hernandez down and into the garage (Davis: 37; Hernandez: 319, 322). According to Cintron, during the argument, he noticed that Milk’s brother had a gun in his waistband (86). Cintron told Garcia, “he has a gun, be careful,” prompting Milk to pull out a gun (87-88, 105). Garcia fired the first shot, striking Milk, and additional shots (87-88, 122). Mr. Rivera then shot Garcia twice, turned, and began shooting at Cintron, who grabbed Hernandez and pulled her into the garage (88-89, 131). Cintron denied seeing Garcia with a gun before he fired it or that Garcia had pointed his gun at Mr. Rivera after shooting Milk (87, 107). A few minutes later, Cintron and Hernandez reemerged from the garage and Davis returned from calling the police; Milk, his brother, and Mr. Rivera were gone, and Garcia was lying face-down, motionless and bleeding (Davis: 38-40; Cintron: 90- 91; Hernandez: 323-324). Garcia’s gun was also gone (Cintron: 90, 123). 11 From the scene, police recovered six 9 millimeter cartridge casings (all from a single gun), thirteen 40 caliber shell casings (all from a single gun), and 8 bullets or bullet fragments (all unsuitable for comparison) (Detective Daniel Boggiano: 177-178, 182-185; Detective James Valenti: 210-215, 219). Some of the ballistic evidence was recovered from inside the garage (Boggiano: 172-173). No weapons were recovered from the scene (Boggiano: 189). Bullet fragments later recovered from the driver’s seat and driver’s side rear door of Milk’s car were consistent with 9 millimeter bullets (Boggiano: 192-193; Valenti: 217-218). A bullet recovered from a chain found at the scene, which Garcia often wore around his neck (Jennifer Garcia: 227; Janet Garcia: 242-243), could have been 40 caliber (Boggiano: 168-169, 179; Valenti: 216-217). An autopsy revealed that Garcia had suffered two gunshot wounds: one through the neck, which hit a major artery, and one that pierced his liver and kidney; both contributed to his death (Doctor Kristin Roman: 145, 147-149, 151-152). The exit wound on Garcia’s neck was “a little jagged,” consistent with the bullet having hit some type of necklace (Roman: 149-150). Based on the path of the bullets, Garcia would have been positioned “a little bit sideways,” rather than directly facing the shooter (Roman: 149). 12 Detective Thomas Jurewicz arrested Mr. Rivera on October 7, 2007. On the way to the precinct, Mr. Rivera spontaneously said that he was with his friends when “some guy got shot” (278-280,296-297). At the precinct, after waiving his Miranda rights, Mr. Rivera said that he had gone to the location with his friend Milk, who started to argue with some guys; at some point, Milk’s brother “Mike” showed up and Mr. Rivera saw people with guns; when he heard shooting, he jumped into Mike’s car and drove away (283-284). Later that day, Cintron and Davis identified Mr. Rivera in a lineup (Jurewicz: 284; Davis: 43-44; Cintron: 92-93). Jurewicz learned that Milk had been shot 5 or 6 times and that his brother, Mike, had a bullet fragment in his leg (288-290). The Defense Case Respondent Anner Rivera, age 28 at trial, had bought a Honda Accord from Richard Cintron in 2002; they agreed on a price of $2,000 and Mr. Rivera gave Cintron a down payment of $700 (357, 361-363). Shortly thereafter, Mr. Rivera sold the Accord to Milk’s brother, Mike Gomez, and bought a Maxima (362). The Maxima was stolen about a week later and, believing that Cintron’s friend “Doom” had stolen the Maxima at Cintron’s request, Mr. Rivera stopped paying Cintron (359- 363). 13 On the evening of October 5, 2007, Mr. Rivera was walking toward Sullivan Street when he ran into Cintron and Garcia (357-358, 427-428). He had not seen Cintron in the five years since he bought the Accord (444). Cintron started asking him about the money he owed, saying, “it’s going to get ugly” (358). Mr. Rivera asked Cintron to have Doom meet them to settle the matter and Cintron said that they would “settle it tomorrow” (359-361). Out of fear, Mr. Rivera gave Cintron $200 (361, 436-437). Later, while Mr. Rivera was at a Manhattan club with Milk, Milk spoke to a friend of Cintron’s and Cintron then called Mr. Rivera, saying, “What’s this you talking about, that I’m trying to extort you for money” (363-365). Mr. Rivera gave the phone to Milk, who argued with Cintron and then said Cintron had directed them to meet him at the gas station on Hamilton Avenue (365). When they arrived, Milk2 called Cintron to ask where he was, and Cintron replied, “Oh, we are in the garage” (366). Saying, “I don’t think they want to talk,” Milk drove Mr. Rivera to Milk’s apartment and procured a gun (367). On3 Cintron acknowledged having called Mr. Rivera from2 the gas station on Hamilton Avenue and 9 Street (121).th A search of Milk’s apartment recovered the case for3 a 40 caliber Glock, a Glock magazine, and both 9 millimeter and 40 caliber cartridges (Jurewicz: 291-292, 298-299). 14 their way to Sullivan Street, Mr. Rivera told Milk, “I think you should just leave this for tomorrow, man” (367). When they arrived at the Sullivan Street garage, Milk got out of the car, leaving his gun on the driver’s seat (367, 369). Cintron, Garcia, Kenneth Davis, “a girl,” and “Jay” were there (369-370). Cintron immediately approached Milk and put a gun to his head (368). Although he had never used a gun before, Mr. Rivera, afraid Cintron would shoot him, grabbed Milk’s gun and exited the car with it in his waistband (369, 404-405). 4 Mr. Rivera told Cintron, “You told us to come here to talk, you don’t have to do this” (369). Garcia yelled to Cintron that there was “one in the head,” which Mr. Rivera took to mean that there was a bullet in the chamber (369). Garcia then grabbed the gun from Cintron; Mr. Rivera saw that Davis and Jay also had guns (370-371). 5 Cintron, Garcia, and Milk began to argue; Milk said, “You just a bunch of bum ass niggers trying to extort people for money,” and told Garcia, “You just mad because you’re driving Cintron and Davis had also testified that Milk got4 out of the car first (Davis: 31; Cintron: 84). While watching the surveillance video (Appellant’s Exhibit), Mr. Rivera denied that it showed him exiting the car at the same time as Milk (Rivera: 403-404, 430-431). At some point, Milk’s brother, Mike, also arrived,5 although Mr. Rivera could not recall him saying anything (421- 423). 15 a beat up Honda Civic” (371, 426). Garcia then began shooting at Milk (372). Mr. Rivera said, “Stop shooting; chill, chill,” but Garcia kept firing (372). Milk fell and Garcia turned and started shooting at Mr. Rivera (375). Thinking that Garcia was going to kill him, Mr. Rivera returned fire (375, 439). He did not know how many times he fired; whether he had hit Garcia; or how Garcia, who was coming “directly” at him, had been shot in the side (414, 417, 442). Jay also fired at Mr. Rivera 2 or 3 times (375, 413). Mr. Rivera denied shooting at Cintron or Hernandez (418). When the shooting stopped, Mr. Rivera ran to Mike’s car, told Mike to take Milk to the hospital, and went to tell Milk’s parents what had happened (375-376). He gave them Milk’s gun and drove to his sister’s house, where he was later arrested (376). The Jury Charge and Deliberations The jury was given three counts to consider: second- degree murder, first-degree manslaughter, and second-degree criminal possession of a weapon (possession outside the home or place of business) (558-563). The court charged the6 The People had dismissed another count of criminal6 possession of a weapon (intent to use unlawfully against another) (S. 3). 16 defense of justification with respect to all counts, including weapon possession (554-563). On the second day of deliberations, the jury sent a note requesting a “clear definition of the word ‘justified’” (574- 575). After the court read back the justification charge (575-579), the jurors sent another note requesting clarification of “when exactly, by the law,” they could consider Mr. Rivera to have been in “imminent danger,” “when he and Milk arrive[d] on Sullivan Street, once he came out of the car, or right before the shooting [took] place” (580-581). The court told the jurors that this was a question of fact and it therefore could not “help [them] in any way” (581). When a juror responded orally that this was their “main complication,” the court replied, “that’s what you’re going to have to do, you have to deliberate” (582). The Ex Parte Conversation with Juror Number 11 After explaining that justification was a question of fact, the court excused the jury for the day and the jurors exited the courtroom (582-584). The record next indicates that the following conversation took place been the court and Juror Number 11: THE COURT: Let the record reflect that I was informed by an attorney, juror number 11 wants to speak to me. I spoke to the two attorneys and they suggested that I do, in fact, speak to him on the 17 record outside of their presence and so I am in the robing room now and I will speak to him and see what he has to say and report back to them. (Jury [sic] 11 enters the room) THE COURT: Have a seat. JUROR # 11: I’m sorry, Your Honor. Everyone is ready to go home. THE COURT: That’s fine. JUROR # 11: My question is in relation to that question. I just want to know by the law, when can we be considered to deem defendant, I guess, responsible? That’s the big issue with some of us. THE COURT: That’s understandable, but I can’t, there is no legal definition other than what I’ve given you. All the rest depends on an interpretation of the evidence, as I said, in the courtroom. This is a fact question for you to determine what the facts are from the evidence and make your determination. There is no more help I can give you. JUROR # 11: It’s like the facts say both, say both, but more or less one or the other if depending upon when certain people are saying well, it’s considered one’s right before the actions took place, others are saying it’s considered once they arrived to the scene that you could say that you should determine and that’s the thing we really -- THE COURT: You have to work it out among yourselves and come to a determination that all of you feel comfortable with, so you just have to just work it out, look at the evidence and, you know, evaluate what you’ve heard and make a decision (584-586). 18 The juror asked whether the following day would be the last day to make a decision, and the court said that would “depend on how the jury as a group decides” (586). The court said the discussion should remain “between us,” and reiterated, “It’s exactly what I said in the courtroom. I can’t give you any more guidance than that” (586). Subsequently, in the presence of the prosecutor and defense counsel, the court indicated that Juror Number 11 had “asked again” for “guidance” on when someone could be in “imminent danger” (586-587). The court said it told him this was “a fact question to be determined by the jury itself,” and told counsel, “I have it on the record if you want it read back to you at some point” (587). Realizing that Mr. Rivera still was not present, the court waited for him to be produced before repeating its summary of the conversation: All right, Mr. Rivera is now present. As I stated earlier, I didn’t realize you weren’t there, that I spoke to juror number 11, he again reiterated the question he must have asked the foreperson to indicate on that note when can someone be found in imminent danger. Is there a specific time and I told him that’s a factual question that has to be resolved by the jury and so basically I told him what I had told the jury here in open court. The only other thing he asked was will tomorrow be the last day and I told him I couldn’t tell and that was it. I have it on the record. Your attorney was here, and the DA was here. 19 They can take a look at it whenever they want so I’ll see you tomorrow at 10:00 (587-588; emphasis added). The court then adjourned to the following day (588). Verdict and Sentencing The jury subsequently acquitted Mr. Rivera of second- degree murder and first-degree manslaughter, but convicted him of second-degree criminal possession of a weapon (590-592). On November 23, 2009, the court sentenced him to a determinate prison term of 12 years and 5 years of post-release supervision (A606). The Appellate Division’s Decision On appeal, Mr. Rivera argued that, by giving supplemental instructions concerning the subject of the jury’s deliberations to a deliberating juror in his absence, the trial court deprived him of his federal and state constitutional rights, and state statutory right, to be present at all material stages of his prosecution. On January 23, 2013, the Appellate Division, Second Department, reversed the conviction and ordered a new trial (ii). It ruled that: A criminal defendant has the absolute right to be present at all material stages of trial. This necessarily includes [] all proceedings dealing with the court’s charge, admonishments and instructions to the jury, where the court 20 is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts. [T]he presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given. Moreover, pursuant to CPL 310.30, when a deliberating jury requests further instruction, the court must direct that the jury be returned to the courtroom [] and in the presence of the defendant, must give such requested information or instruction as the court deems proper. Here, the Supreme Court erred when it received and answered a series of questions from a juror inside the robing room and outside the presence of the defendant, defense counsel, the prosecutor, and the other jurors. The juror’s questions, which inquired into, among other topics, when the defendant could be deemed responsible “by the law,” were not purely ministerial as they directly related to the substantive legal and factual issues of the trial. Since the error affects the organization of the court or the mode of proceedings prescribed by law, preservation is not required, and the issue of law is presented for review even though counsel may have consented to the procedure. Moreover, under these circumstances, harmless error analysis is not appropriate. (iii; internal citations and quotation marks omitted). 21 ARGUMENT THE APPELLATE DIVISION CORRECTLY HELD THAT, WHEN THE COURT CONDUCTED AN EX PARTE CONVERSATION WITH A DELIBERATING JUROR ABOUT THE VERY ISSUE THE JURORS WERE STRUGGLING TO DECIDE, IN VIOLATION OF MR. RIVERA’S CONSTITUTIONAL RIGHT TO BE PRESENT, IT COMMITTED A “MODE OF PROCEEDINGS ERROR” THAT COULD NOT BE “CURED” BY ITS SUMMARIZING OF THE CONVERSATION FOR MR. RIVERA AND THE ATTORNEYS AFTER THE FACT. Mr. Rivera’s jurors clearly struggled with the key justification issue, which they were instructed to apply to all the counts. During deliberations, they requested the definition of “justified,” as well as clarification of when, “by the law,” they should assess whether Mr. Rivera was in “imminent danger.” The court’s private meting with Juror Number 11, during which the juror sought guidance from the court as to the time frame in which Mr. Rivera could legally be “deem[ed] . . . responsible,” was thus related to the heart jury’s deliberations. Mr. Rivera had an absolute constitutional right to be present at such a conversation, which he did not waive. Conducting it in his absence deprived him of his federal and state constitutional rights, and state statutory right, to be present at all critical stages of his prosecution, as well as his right to counsel’s input in the court’s response to questions by deliberating jurors. U.S. Const., Amend. V, VI, 22 XIV; N.Y. Const., Art. I, § 6; People v. O’Rama, 78 N.Y.2d 270, 276 (1991); People v. Cain, 76 N.Y.2d 119, 123 (1990); People v. Mehmedi, 69 N.Y.2d 759, 760 (1987); C.P.L. §§ 260.20, 310.30. The court’s ex parte conversation constituted a “mode of proceedings” error that, contrary to the People’s position, could not be cured by the court’s belated attempt to summarize the conversation for Mr. Rivera and the attorneys. Thus, the Appellate Division correctly held that, since the court engaged in this ex parte conversation with a deliberating juror that went to the heart of the issues the jurors were struggling to decide, reversal was required (ii-iii). (A) A criminal defendant has a constitutional right to be present at all material stages of his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970); Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934); People v. Chisolm, 85 N.Y.2d 945, 947 (1995); People v. Epps, 37 N.Y.2d 343, 345 (1975). This right, embodied in statute and the Confrontation and Due Process Clauses of the Federal and State Constitutions, is fundamental, and any loss of the right must be viewed with suspicion and subjected to careful examination. Illinois v. Allen, supra, 397 U.S. at 343 (“courts must indulge every reasonable presumption against the loss of constitutional 23 rights”); People v. Dokes, 79 N.Y.2d 656, 659 (1992); People v. Parker, 57 N.Y.2d 136, 140 (1982); Epps, supra, 37 N.Y.2d at 345, 350; see also C.P.L. § 260.20. Although both “ancillary” and “core” segments of a trial may be deemed “material,” the right to be present during ancillary proceedings, such as Sandoval hearings or sidebar conferences with potential jurors, is purely statutory. See People v. Favor, 82 N.Y.2d 254, 262 (1993). Thus, while a defendant’s statutory right to be present at an ancillary proceeding can be rejected as “superfluous” if his presence would not impact the outcome of the trial, see People v. Camacho, 90 N.Y.2d 558, 560 (1997); People v. Roman, 88 N.Y.2d 18, 26 (1996); People v. Rodriguez, 85 N.Y.2d 586, 590-591 (1995); Favor, 82 N.Y.2d at 258, the constitutional right to be present during core segments of the trial cannot; it is an “unfettered right,” existing regardless of the defendant’s potential contribution. People v. Morales, 80 N.Y.2d 450, 457 (1992). Indeed, this right exists even when the defendant’s presence serves only a “symbolic function,” such as at the rendition of the verdict. Id. at 456 (noting “concern about secret trials”). The “charge of the court to the jury” constitutes a core segment of trial, Id. at 455-456, implicating the defendant’s “absolute and unequivocal” constitutional right to be present. 24 Mehmedi, supra, 69 N.Y.2d at 760; People v. Ciaccio, 47 N.Y.2d 431, 436 (1979); see also People v. Bonaparte, 78 N.Y.2d 26, 30 (1991); Cain, supra, 76 N.Y.2d at 123; C.P.L. § 310.30. In particular, this right requires a defendant’s presence during any “supplemental” instructions given after the jury has begun deliberating because they “may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves.” Ciaccio, 47 N.Y.2d at 436-437; Cain, 76 N.Y.2d at 123-124. The defendant’s presence is not required during communications involving merely “ministerial matters” or the “logistics” of deliberations. See Bonaparte, 78 N.Y.2d at 30- 31 (telling jurors they were going to dinner and a hotel and that they should stop deliberating was ministerial); see also People v. Ochoa, 14 N.Y.3d 180, 185, 188 (2010) (ministerial to instruct foreperson that delivering verdict only entails answering “guilty or not guilty”); People v. Harris, 76 N.Y.2d 810, 812 (1990) (ministerial to clarify whether readback request was for testimony of victim or about victim). However, when instructions to the jury concern the “mode or subject of their deliberations,” Bonaparte, 78 N.Y.2d at 31, a defendant’s right to be present is “unequivocal.” Mehmedi, supra, 69 N.Y.2d at 760; see also People v. Torres, 72 N.Y.2d 1007, 1008-1009 (1988) (not ministerial when a jury 25 that had indicated it had reached an impasse was told to continue deliberating); People v. Cassell, 62 A.D.3d 1021, 1022 (2d Dep’t 2009) (legal instruction to juror regarding her obligation to continue deliberating should have been given in the defendant’s presence). To “insure that the rights of the defendant will be safeguarded at this crucial step,” the Legislature enacted C.P.L. § 310.30, which provides that, “[w]hen the court communicates with a jury, they must be returned to the courtroom, [] counsel [] must be notified, and the defendant must be present.” Ciaccio, supra, 47 N.Y.2d at 437; see also People v. Collins, 99 N.Y.2d 14, 17 (2002); Harris, supra, 76 N.Y.2d at 812. As this Court recognized in O’Rama, supra, 78 N.Y.2d at 276, the requirements of C.P.L. § 310.30 are “not a mere formality.” In addition to insuring the defendant’s presence, C.P.L. § 310.30 mandates “meaningful” notice to counsel of the “actual specific content of the jurors’ request” before the court’s response is given. Id. at 277-278; see also People v. Alcide, __ N.E.2d __, 2013 WL 5566450, slip op. at 6-7 (October 10, 2013); People v. Cook, 85 N.Y.2d 928, 931 (1995). Significantly, however, even when defense counsel is given such “meaningful notice,” the absence of the defendant will still require reversal. See Cain, supra, 76 N.Y.2d at 122-124 26 (defendant’s absence during robing room colloquy with juror mandated reversal, despite defense counsel’s “participat[ion]”); accord Maurer v. People, 43 N.Y. 1, 3 (1870) (reversal required when court answered a series of questions from jury during deliberations in the presence of defense counsel but not defendant). This Court has repeatedly noted that there are few moments more “critical” to the outcome of a trial than when the court responds to a deliberating jury’s request for additional guidance, since the court’s response may “determine whether a verdict will be reached, and what that verdict will be.” People v. Kisoon, 8 N.Y.3d 129, 134-135 (2007) (quoting Kisoon, 23 A.D.3d 18, 20 [2d Dep’t 2005]); see also O’Rama, supra, 76 N.Y.2d at 277; Cain, supra, 76 N.Y.2d at 123-124; Ciaccio, supra, 47 N.Y.2d at 436-437. Accordingly, it is a “settled rule” that the absence of the defendant during supplemental instructions to the jury is “fatal to the verdict.” People v. Colascione, 22 N.Y.2d 65, 69-70 (1968); People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 257 (1963). Indeed, even when the “personal absence of defendant” would seemingly make no “real difference,” Colascione 22 N.Y.2d at 69-70, the defendant’s presence is nevertheless considered “essential to the attainment of justice and the 27 protection of the innocent.” People v. Mullen, 44 N.Y.2d 1, 4 (1978) (quoting Maurer, supra, 43 N.Y. at 3). Given the fundamental importance of the defendant’s right to be present at all “critical stages” of his trial, a violation of that right “implicates ‘the organization of the court or the mode of proceedings prescribed by law’ and present[s] [a] reviewable question[] of law even in the absence of a timely objection.” Bonaparte, supra, 78 N.Y.2d at n* (1991)(quoting Mehmedi, supra, 69 N.Y.2d at 760); see also Harris, supra, 76 N.Y.2d at 811-812, n* (communication with the jury in defendant’s absence, in violation of C.P.L. § 310.30 and the constitutional right to be present at this material stage of the trial, constitutes a “mode of proceedings” error). In addition, because a defendant’s right to be present at all material stages of a trial is fundamental and unequivocal, a violation of that right is not subject to harmless error analysis. Cain, supra, 76 N.Y.2d at 121; Mehmedi, supra, 69 N.Y.2d at 760; People v. Galdamez, 234 A.D.2d 608 (2d Dep’t 1996). Because the right to be present is personal to the defendant, counsel cannot waive it, either by consent or by a failure to object. Bonaparte, supra, 78 N.Y.2d at n*; Mehmedi, 69 N.Y.2d at 760; People v. Ahmed, 66 N.Y.2d 307, 311 (1985). Moreover, because the right to be present is of a 28 “fundamental constitutional nature,” any waiver of that right must be tested according to “constitutional standards.” Parker, supra, 57 N.Y.2d at 140. Accordingly, “the key issue [is] whether th[e] defendant knowingly, voluntarily and intelligently relinquished his known right.” Parker, supra, 57 N.Y.2d at 141 (emphasis added); see also People v. Corely, 67 N.Y.2d 105, 110 (1986) (“waiver results from a knowing, voluntary and intelligent decision”); Epps, supra, 37 N.Y.2d at 350 (“The key issue is whether this defendant knowingly, voluntarily and intelligently relinquished this known right”). For a waiver to be knowing, voluntary, and intelligent, a defendant must understand the nature of the right he is waiving and the full consequences of the waiver. Parker, supra, 57 N.Y.2d at 141. Otherwise, it cannot pass due process muster as the “intentional relinquishment . . . of a known right,” Johnson v. Zerbst, 304 U.S. 458, 464 (1938), or “a knowing and voluntary choice.” People v. Callahan, 80 N.Y.2d 273, 280 (1992). In deciding whether a knowing, voluntary, and intelligent waiver of the constitutional right to be present has been made, courts must indulge every reasonable presumption against waiver. See People v. Davis, 75 N.Y.2d 517, 523 (1990) (citing Brewer v. Williams, 430 U.S. 387, 404 [1977] [“the 29 proper standard to be applied in determining the question of waiver as a matter of federal and state constitutional law [is] that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’”]); see also Illinois v. Allen, supra, 397 U.S. at 343; Epps, supra, 37 N.Y.2d at 350 (“Whenever there is a waiver [of the right to be present] by an incarcerated defendant it will be suspect and subjected to careful examination”). For that reason, a knowing and voluntary waiver cannot be inferred from a silent record, and it is the obligation of the trial court to insure that such a waiver “is evident on the face of the record.” See People v. Lopez, 6 N.Y.3d 248, 256 (1006); see also People v. DiSimone, 80 N.Y.2d 273, 283 (1992); People v. Harris, 61 N.Y.2d 9, 17 (1983) (“a record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections”). (B) In this case, after it became apparent that the jury was struggling with the central justification issue, the trial court conducted a private robing room colloquy with Juror Number 11, during which the juror asked when, “by the law,” he and his fellow jurors could “deem defendant . . . responsible” (585). The juror revealed that this was “the big issue” he 30 and some of the other jurors were having (585). The court assured the juror that this problem was “understandable,” but maintained that there was “no legal definition” other than what the jury had already been given, and told him that “[a]ll the rest depends on an interpretation of the evidence” (585). Concluding that the juror’s question was a “fact question,” the court instructed him to “determine what the facts are from the evidence” (585). The court said there was “no more help” it could give (585). Juror Number 11 persisted, however, lamenting that “the facts say both,” depending on whether “one’s right” to self defense attached “right before the actions took place,” as “certain [jurors were] saying,” or as soon as Mr. Rivera “arrived on the scene,” as “others [were] saying” (585). The court instructed him that the jurors would have to “work it out among [them]selves” (585). It again instructed Juror Number 11 to “look at the evidence” and “evaluate what you’ve heard” in order to “make a decision” (586). Because this evaluation of Mr. Rivera’s justification defense was precisely the “subject of [the jury’s] deliberations,” Bonaparte, supra, 78 N.Y.2d at 31, this conversation cannot be considered “ministerial” in any sense. Indeed, it is difficult to conceive of a question more likely to be “determinative of the outcome of the case,” Ciaccio, 31 supra, 47 N.Y.2d at 436-437, than when Mr. Rivera could be “deem[ed] . . . responsible.” See e.g. Cain, supra, 76 N.Y.2d at 122-124 (court’s colloquy with juror in defendant’s absence, during which, inter alia, it became apparent that the juror was unclear on the law concerning the theory of acting in concert, mandated reversal); Torres, supra, 72 N.Y.2d at 1008-1009 (non-ministerial instruction to jury to continue deliberating mandated reversal). The record is devoid of any indication that Mr. Rivera personally exercised a knowing, voluntary, and intelligent waiver of his right to be present during this conversation. See Parker, supra, 57 N.Y.2d at 140-141. Prior to meeting with Juror Number 11, the court said it had spoken with “the two attorneys” (584). There is no indication that Mr. Rivera himself was ever consulted or that he was even present when the ex parte conversation was suggested. Nor did the court, after subsequently recounting the substance of its conversation with Juror Number 11, attempt to obtain a waiver from Mr. Rivera after-the-fact. Cf. People v. La Barbera, 274 N.Y. 339, 342 (1937) (readback given and question from juror answered in defendant’s absence; subsequently, defendant explicitly waived his right to be present on the record). Obviously, the trial court should not have spoken to a deliberating juror alone. Conceivably, it decided to do so in 32 the initial belief that Juror Number 11 would make some ministerial inquiry about scheduling or his health. But even so, once it became clear from the juror’s question that he was seeking guidance on how to decide the case, the trial court should have terminated the conversation immediately and reconvened with everyone, including Mr. Rivera, present. Only in that way could the trial court have complied with the requirements of C.P.L. § 310.30 and afforded Mr. Rivera his constitutional right to be present during all material stages of his trial. The Appellate Division correctly found that the trial court’s ex parte conversation with a deliberating juror, concerning “the substantive legal and factual issues of the trial,” constituted a “mode of proceedings” error requiring reversal, “even though counsel may have consented to the procedure” (ii-iii). The People concede that the court’s statements might “technically have constituted an instruction on the law” (People’s Brief at 21), but argue: (1) that a mode of proceedings error can be “substantially cured” if the trial court takes “appropriate steps” to do so, and (2) that the trial court here took such steps when it belatedly “explain[ed] to defendant and his attorney what had happened in their absence, and [] inform[ed] them that they could hear 33 a readback of the court’s discussion with the juror” (People’s Brief at 19-20). These arguments are meritless. (C) Contrary to the People’s position, this Court has never held that mode of proceedings error can be “cured.” Indeed, the notion of “curing” a mode of proceedings error is antithetical to the very concept of a mode of proceedings error, which recognizes that certain errors are “so fundamental that the entire trial is irreparably tainted.” People v. Kelly, 5 N.Y.3d 116, 119-120 (2005) (emphasis added). Nevertheless, the People contend that this Court’s decisions in Kelly and People v. Kadarko, 14 N.Y.3d 426 (2010), when read together, stand for the proposition that what would otherwise constitute a mode of proceedings error does not constitute such an error when the trial court takes “appropriate steps” to “cure” it (People’s Brief at 25-27). The People fundamentally misread these cases. In Kadarko, upon receiving a note from the jury, the trial judge explained the note’s contents to counsel outside the jury’s presence. 14 N.Y.3d at 428. Believing it inappropriate to show counsel the numerical breakdown of the jurors’ votes, the judge informed counsel only that the note gave three different divisions among the jurors as to the five 34 robberies under consideration, and said that the note did not indicate whether the majority was voting to convict or acquit. Id. The judge gave counsel an opportunity to be heard, delivered an Allen charge, and then showed counsel the note with the number divisions. Id. The People contend that the trial court in Kadarko committed a mode of proceedings error that it “later corrected” by revealing the note after the Allen charge (People’s Brief at 25-27). In fact, however, this Court held that the trial court never committed a mode of proceedings error in the first place because, even before the full note was revealed, counsel had “meaningful notice of [its] contents” and “an opportunity to respond.” Id. at 429. Thus, subsequently revealing the note in full served only to “correct” a non-mode of proceedings error. Id. at 429-430. Indeed, this Court specifically stated that: Although the court’s decision not to read the entire note until after the jury had resumed deliberations may have been error, it was not a mode of proceedings error and the court later corrected itself . . . . Id. at 430 (emphasis added). Thus, contrary to the People’s interpretation of Kadarko, it does not suggest that a mode of proceedings error can be “cured.”7 The People also cite People v. Starling, 85 N.Y.2d 509,7 (continued...) 35 In Kelly, a court officer conducted an unauthorized demonstration of the weapon involved in a murder trial. 5 N.Y.3d at 118. When the court officer told the court what had happened, the court promptly advised both sides and an off-the-record discussion ensued. Id. After consulting with the defendant, his counsel agreed that the appropriate response would be for the court to instruct the jury to disregard the court officer’s demonstration, and the court complied. Id. The People contend that the court officer’s conduct in Kelly “usurped the judge’s power of supervision, which is an integral component of a jury trial,” and would have constituted a mode of proceedings error but for the trial court’s immediate response curing the error (People’s Brief at 26-27). Again, the People’s interpretation that a mode of proceedings error was cured is incorrect. This Court specifically affirmed the Appellate Division’s holding that the court officer’s conduct “did not amount to a usurpation of the trial court’s supervision of or control over the (...continued) 516 (1995), for the proposition that a mode of proceedings error can be “substantially cured” by the trial court (People’s Brief at 24). However, as in Kadarko, the Starling trial court did not “cure” a mode of proceedings error, it simply did not commit one to begin with because it gave counsel “notice of the contents of the jury notes and [counsel] had knowledge of the substance of the court’s intended response.” Id. 36 proceedings.” Kelly, 5 N.Y.3d at 118-119 (emphasis added). Indeed, in finding that there was “no mode of proceedings error,” this Court noted that Kelly was comparable to Bonaparte, supra, 78 N.Y.2d 26, in which a court officer’s communications with the jury were deemed ministerial. Kelly, 5 N.Y.3d at 120. Since ministerial matters do not give rise to mode of proceedings errors, the trial court’s response in Kelly offers no support for the People’s assertion that a mode of proceedings error can be cured if the trial court takes the “appropriate steps.” Thus, this Court has never held that a mode of proceedings error can be “cured,” and the People’s theory that Kadarko and Kelly “support” such a conclusion (People’s Brief at 19) is wrong. (D) Although the People repeatedly emphasize that the “mode of proceedings” exception to the preservation requirement applies only to a “tightly circumscribed” class of errors (People’s Brief at 19, 24-25), it is firmly established that the error in question (excluding a defendant from substantive, supplemental instructions to a deliberating juror) falls within that “tightly circumscribed” class. See, e.g., Harris, supra, 76 N.Y.2d at 811-812, n*; Bonaparte, supra, 78 N.Y.2d at n*; Mehmedi, supra, 69 N.Y.2d at 760. Indeed, the People 37 concede that the court’s conversation with Juror Number 11 “may technically have constituted an instruction on the law,” and that the giving of such instructions in a defendant’s absence constitutes a mode of proceedings error (People’s Brief at 21, 27). Nor was the exchange at issue perfunctory;8 there was substantial back-and-forth between the court and Juror Number 11, explicitly involving the jury’s attempts to resolve the central justification question of the case. Nevertheless, in an effort to bolster their theory that the error in question was “curable,” the People argue that it was “at most a de minimis violation” of Mr. Rivera’s right to be present because what the court said was “merely a repetition of the instruction given by the court in response to a jury note,” and “a de minimis violation of a defendant’s right to be present at trial may not require reversal of a conviction” (People’s Brief at 31-32, 35-36). In support of their argument, the People cite a footnote in Morales, which states simply: Although the People equivocate, claiming that the8 error in question is a mode of proceedings error “in some circumstances,” they provide no explanation for when it would not constitute a mode of proceedings error, other than their theory that such an error can sometimes be “cured” by “appropriate steps” (People’s Brief at 27; emphasis added). 38 Of course, a de minimis violation of the absolute right to be present at trial would not necessarily result in reversal (see e.g., People v. Bragle, 88 N.Y. 585 [1882]). Morales, supra, 80 N.Y.2d at 457 n.2. Consideration of Bragle, upon which Morales relied, makes clear, however, that the People have vastly misconstrued the meaning of a “de minimis violation.” Bragle explicitly distinguishes the de minimis error at issue in that case (a defendant voluntarily absenting himself from the courtroom for a few minutes) from the very error at issue here (a defendant being absent from “additional instructions” to the jury, a “very material part of the trial”). Bragle, 88 N.Y. at 590. Indeed, far from being “de minimis,” instructing a deliberating juror in the defendant’s absence is a fundamental error that this Court has repeatedly condemned. Cain, supra, 76 N.Y.2d at 123-124; Mehmedi, supra, 69 N.Y.2d at 760. Thus, it is clear that the People’s assertion that the error here was de minimis is simply a thinly veiled attempt to argue that it was harmless, which is “inappropriate.” Cain, 76 N.Y.2d at 124 (“absence of the accused during supplemental instructions presents an error of law mandating reversal . . . and [] an inquiry into prejudice is inappropriate”)(citing Mehmedi, 69 N.Y.2d at 760). 39 Nor is this case “analogous” to situations in which a defendant’s absence from a Sandoval hearing or a sidebar conference with a prospective juror is remedied by a de novo proceeding at which the defendant is present (People’s Brief at 37-39). As an initial matter, the summary and readback offer in this case was in no way analogous to a de novo proceeding, but rather akin to the summary given in People v. Favor, 82 N.Y.2d 254, 267 (1993), in which this Court held that reversal was required because the trial court simply “recited the gist of its Sandoval decision in defendant’s presence.”9 Moreover, the People’s reliance on the Sandoval and Antommarchi line of cases is misplaced because it fails to distinguish between “ancillary” proceedings, at which the right to be present is only statutory and qualified, being directly tied to a defendant’s ability to be “useful,” and “core” proceedings, like supplemental jury instructions, at which the right to be present is constitutional. See p. 24, ante. The constitutional right to be present at such “core” proceedings stems from “the ancient evil of secret trials,” For the same reason, neither People v. Cordero,9 308 A.D.2d 494 (2d Dep’t 2003), nor Gable v. State, 31 Ala. App. 280 (Ala. Ct. App. 1943), should be considered remotely persuasive (People’s Brief at 36-37). Assuming, arguendo, that either case was rightly decided, both involved reconvening the jury and giving instructions again in defendant’s presence, Cordero, 308 A.D.2d at 494; Gable, 31 Ala. App. at 285-286, which was not done here. 40 and therefore insures an accused the opportunity not just to contribute to, but to witness, the proceedings. See, Lupo, supra, 13 N.Y.2d at 255-256; see also Morales, 80 N.Y.2d at 456. By analogizing to Sandoval and Antommarchi, the People dramatically understate the magnitude of the error at issue here and incorrectly suggest that a de novo proceeding can “cure” the error of excluding the defendant from a core segment of his trial. The purpose of repeating an ancillary proceeding from which the defendant was wrongly excluded is to provide him with the opportunity to make whatever contributions he would have made in the first instance. See Roman, supra, 88 N.Y.2d at 27; Favor, supra, 82 N.Y.2d at 267. There can, however, be no after-the-fact cure for being deprived of the right to witness core proceedings. Recounting the substance of the proceeding – or even offering to read a cold transcript, devoid of tone, facial expression, and nuance – cannot remedy the defendant’s absence when it first occurred or remove the appearance of unfairness inherent in denying a defendant his constitutional right to be present. Finally, even assuming arguendo that such an error could possibly be cured, it is abundantly clear that the “remedial steps” taken in this case did not suffice. The People assert that, by summarizing the conversation “immediately after” it 41 occurred, the court gave Mr. Rivera “an opportunity to provide input . . . at a time when any error could have been corrected or any appropriate further instruction could have been given” (People’s Brief at 36). But Mr. Rivera’s right to be present went beyond the right to provide “input,” and encompassed the right to witness the exchange as it occurred. Furthermore, the People’s purported remedy does not comport with the requirements of C.P.L. § 310.30 and O’Rama, providing for the attorney’s input before a response is given, which recognize that, once the court has acted, the bell cannot be unrung. A robing room colloquy with a single juror that includes a discussion of the applicable legal principles constitutes the giving of “further instrcution[s]” within the meaning of C.P.L. § 310.30. Cain, supra, 76 N.Y.2d at 124. Indeed, the People concede that the court’s statements here “may technically have constituted an instruction on the law” (People’s Brief at 21). Accordingly, the O’Rama guidelines for responding to a substantive juror inquiry applied – namely, notifying counsel of the “specific content of the jurors’ request” and giving counsel the opportunity to be heard before the response is given. See, e.g. Alcide, supra, 2013 WL 5566450, slip op. at 6-7 (“the point of our decision in O’Rama is ‘. . . to delineate a set of guidelines calculated to maximize participate by counsel at a time when 42 counsel’s input is most meaningful, i.e. before the court gives its formal response’”)(quoting O’Rama, 78 N.Y.2d at 278) (emphasis in Alcide); see also Cook, supra, 85 N.Y.2d at 931 (“Meaningful notice . . . requires . . . ‘that counsel has the opportunity to be heard before the response is given’”) (quoting O’Rama 78 N.Y.2d at 277). The trial court’s “remedial” efforts here to inform Mr. Rivera and the attorneys of the contents of the conversation with Juror Number 11 after the fact not only did nothing to remedy the denial of Mr. Rivera’s right to be present, but also failed to comport with O’Rama, since the opportunity for defense counsel to suggest “appropriate further instruction” was illusory.10 Indeed, this case precisely illustrates the necessity of the defendant’s and attorneys’ presence, as well as following the guidelines set forth in O’Rama, since the trial court’s purported summary of what was said during the conference with Juror Number 11 inaccurately conveyed what had transpired. The court said that the juror asked when someone could be in “imminent danger” (587). In actuality, the juror never used those words. He asked when the defendant could be “deem[ed] . . . responsible,” and revealed that some jurors were focused Of course, this robing room colloquy with Juror Number 1110 was also violative of C.P.L. § 310.30 “for the additional reason that the statute does not contemplate the giving of supplemental legal instructions to a single juror in the absence of the remaining jurors.” Cain, supra, 76 N.Y.2d at n.1. 43 on when Mr. Rivera “arrived to the scene,” and others on “right before the actions took place” (585). Had defense counsel known the actual substance of the juror’s request before the court gave it’s response, he might have requested that, instead of simply responding that “it depends on an interpretation of the evidence” (585), the court give the jury as a whole more guidance as to the elements of the crimes or the definition of justification. Furthermore, even if the court had accurately conveyed the substance of Juror Number 11's request, it would not have changed the fact that neither Mr. Rivera nor his attorney actually witnessed the exchange so as to accurately assess, from the juror’s tone and nonverbal conduct and demeanor, whether some other instruction was appropriate. In any event, no matter how correct subsequent instructions might have been, they could not erase what Juror 11 had already heard in camera. The People argue that upholding the Appellate Division’s decision would mean that a mistrial must be declared whenever a court “has erred by giving an instruction [to the jury] in the defendant’s absence,” even if the defendant wants to “waive his challenge to the error” (People’s Brief at 28-29). As an initial matter, there are sound reasons for precluding after-the-fact waivers of the constitutional right to be 44 present, given the power of such errors to “irreparably taint[]” the entire proceeding. Kelly, supra, 5 N.Y.3d at 119-120. When the defendant’s presence is “essential to the attainment of justice and the protection of the innocent,” Mullen, supra, 44 N.Y.2d at 4, his absence reflects upon the integrity of the judicial process. Thus, society as a whole has an interest in insuring the defendant’s presence, despite any attempt to waive it after the fact. In any event, even assuming the right can be waived after the fact, any such waiver would have to meet “constitutional standards.” In other words, it would have to be a knowing, voluntary, and intelligent waiver on the record. Parker, supra, 57 N.Y.2d at 140; see also Harris, supra, 61 N.Y.2d at 17. When a fundamental right is concerned, it is not the defendant’s burden to prevent “the error [from] pass[ing] into the record uncured” (People’s Brief at 28). The fundamental importance of the right to be present to the integrity of all criminal convictions outweighs any concern that some individual defendant might receive a “windfall” (People’s Brief at 28, 31). It is clear from this record that Mr. Rivera did not waive his constitutional right to be present. Given the basic requirement that the court must establish a knowing, voluntary, and intelligent waiver of a defendant’s 45 constitutional right, the People’s effort to shift the waiver burden to Mr. Rivera by requiring preservation (People’s Brief at 29), must be rejected. Nor would adhering to long-established due process waiver law lead to an “unnecessary waste of resources” (People’s Brief at 28). To the contrary, the vague, circumstance- specific standard the People advocate – that a trial court can sometimes “substantially cure” an error in excluding a defendant from a “core” portion of his trial by taking “appropriate steps” – would result in far more litigation than a bright-line rule simply precluding a trial court from having substantive, ex parte conversations with a deliberating juror, at least absent a knowing, intelligent, and voluntary waiver from the defendant. Unlike a situation in which a court officer unexpectedly usurps judicial authority, a judge always has control over his or her decision to give supplemental legal instructions to a deliberating juror alone in the robing room without an explicit waiver from the defendant of his right to be present. Thus, clear guidance from this Court that such conversations should never take place because reversal will always be required, regardless of what “remedial” steps the trial court subsequently tries to take, will ultimately reduce the likelihood of such conversations occurring, and will therefore 46 conserve judicial resources as well as protect the fundamental rights of defendants. * * * In sum, the trial court’s ex parte conversation with a deliberating juror, during which they discussed the substantive legal and factual issues of the trial, constituted a mode of proceedings error immune from preservation requirements. The trial court’s attempt to notify Mr. Rivera of the contents of that conversation after the fact did not “cure” the error because the error, quite simply, was Mr. Rivera’s absence from a proceeding he had an “unequivocal” right to attend. Accordingly, only a knowing, voluntary, and intelligent waiver from Mr. Rivera of that right could possibly have cured the error. The trial court’s remedial efforts were inadequate for the additional reason that merely offering a readback does not comport with the C.P.L. § 310.30 and O’Rama requirements of meaningful notice and an opportunity for input before a response is given to a juror’s substantive inquiry. The Appellate Division’s decision to order a new trial was correct and should be affirmed by this Court. 47 CONCLUSION THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION’S DECISION REVERSING MR. RIVERA’S CONVICTION. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Respondent KATHLEEN WHOOLEY Of Counsel November 26, 2013 48