The People, Appellant,v.Anner Rivera, Respondent.BriefN.Y.May 8, 2014 To be argued by: ADAM M. KOELSCH (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANNER RIVERA, Defendant-Respondent. Kings County Indictment Number 9921/2007 APL-2013-00175 APPELLANT'S BRIEF LEONARD JOBLOVE ADAM M. KOELSCH Assistant District Attorneys of Counsel Telephone: (718) 250-3823 Facsimile: (718) 250-1262 September 23, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................... iii QUESTION PRESENTED ............................................. vi PRELIMINARY STATEMENT ........................................... 1 STATEMENT OF FACTS .............................................. 3 Introduction ............................................... 3 The Trial .................................................. 3 The People’s Case ..................................... 3 The Defendant’s Case .................................. 7 The Court’s Justification Charge to the Jury ......... 11 The Court’s Ex Parte Discussion with a Juror ......... 13 The Verdict and the Sentence .............................. 16 The Appeal ................................................ 17 SUMMARY OF ARGUMENT ............................................ 19 ARGUMENT – DEFENDANT’S CLAIM REGARDING A CONVERSATION BETWEEN THE TRIAL COURT AND A JUROR IN THE ABSENCE OF DEFENDANT IS UNPRESERVED, AND DOES NOT FALL WITHIN THE “MODE OF PROCEEDINGS” EXCEPTION TO THE PRESERVATION REQUIREMENT, BECAUSE THE COURT PROMPTLY INFORMED DEFENDANT AND HIS ATTORNEY OF THE CONTENT OF THE CONVERSATION AND OFFERED TO READ BACK THAT CONVERSATION ............................ 21 A. A “Mode of Proceedings” Error that Is Substantially Cured by the Trial Court Is Subject to the Preservation Requirement ............................. 23 B. The Asserted Violation of Defendant’s Right to Be Present Is Not a “Mode of Proceedings” Error, Because the Trial Court Substantially Cured the Alleged Error ........................................ 31 C. Conclusion ........................................... 40 ii TABLE OF CONTENTS (cont’d) Page CONCLUSION – FOR THE FOREGOING REASONS, THIS COURT SHOULD REVERSE THE ORDER OF THE APPELLATE DIVISION AND REMIT THE CASE TO THAT COURT FOR IT TO DECIDE WHETHER TO CONSIDER DEFENDANT’S CLAIM IN THE INTEREST OF JUSTICE .............. 41 iii TABLE OF AUTHORITIES Pages CASES Gable v. State, 31 Ala. App. 280, 15 So. 2d 594 (Ala. Ct. App. 1943), cert. denied, 311 U.S. 726 (1944).........37 People v. Agramonte, 87 N.Y.2d 765 (1996)......................24 People v. Autry, 75 N.Y.2d 836 (1990)......................22, 30 People v. Bartell, 234 A.D.2d 956 (4th Dep’t 1996).............37 People v. Becoats, 17 N.Y.3d 643 (2011), cert. denied, 132 S. Ct. 1970 (2012)....................................24 People v. Camacho, 90 N.Y.2d 558 (1997)........................39 People v. Casey, 95 N.Y.2d 354 (2000)..........................25 People v. Ciaccio, 47 N.Y.2d 431 (1979)........................32 People v. Cordero, 308 A.D.2d 494 (2d Dep’t 2003)..............36 People v. Creech, 60 N.Y.2d 895 (1983).........................22 People v. Dokes, 79 N.Y.2d 656 (1992)..........................38 People v. Favor, 82 N.Y.2d 254 (1993)..........................37 People v. Forte, 243 A.D.2d 578 (2d Dep’t 1997)................37 People v. Gray, 86 N.Y.2d 10 (1995)............................29 People v. Hailey, 221 A.D.2d 466 (2d Dep’t 1995)...............37 People v. Harris, 76 N.Y.2d 810 (1990).........................31 People v. Hawkins, 11 N.Y.3d 484 (2008)........................24 People v. Kadarko, 14 N.Y.3d 426 (2010).............19, 25-26, 40 People v. Kelly, 5 N.Y.3d 116 (2005)............19, 22-26, 30, 40 iv TABLE OF AUTHORITIES (cont’d) Pages People v. Kisoon, 8 N.Y.3d 129 (2007)..........................33 People v. Lynch, 216 A.D.2d 929 (4th Dep’t 1995)...............38 People v. Mehmedi, 69 N.Y.2d 759 (1987)....................27, 29 People v. Morales, 80 N.Y.2d 450 (1992)........................32 People v. O’Rama, 78 N.Y.2d 270 (1991).....................24, 33 People v. Patterson, 39 N.Y.2d 288 (1976), aff’d, 432 U.S. 197 (1977).............................23-24, 28-29 People v. Pichardo, 79 A.D.3d 1649 (4th Dep’t 2010)............40 People v. Rivera, 102 A.D.3d 893 (2d Dep’t), leave granted, __ N.Y.3d __ (2013).....................1, 17 People v. Rodriguez, 85 N.Y.2d 586 (1995)......................38 People v. Roman, 88 N.Y.2d 18 (1996)...........................39 People v. Starling, 85 N.Y.2d 509 (1995).......................24 People v. Thompson, 262 A.D.2d 666 (2d Dep’t 1999).............39 People v. Valentine, 212 A.D.2d 399 (1st Dep’t 1995)...........38 People v. Weathers, 212 A.D.2d 820 (2d Dep’t 1995).............38 People v. Wright, 17 N.Y.3d 643 (2011).........................31 Snyder v. Massachusetts, 291 U.S. 97 (1934)....................31 STATUTES AND CONSTITUTIONAL PROVISIONS C.P.L. § 260.20................................................32 C.P.L. § 310.30................................................32 C.P.L. § 470.05.............................................22-23 v TABLE OF AUTHORITIES (cont’d) Pages C.P.L. § 470.15................................................22 C.P.L. § 470.35.................................................2 C.P.L. § 470.40................................................22 P.L. § 125.20..................................................16 P.L. § 125.25...............................................3, 16 P.L. § 265.03............................................1, 3, 16 N.Y. Const. art. VI, § 3........................................2 OTHER AUTHORITIES CJI2d[NY] Penal Law § 35.15....................................11 vi QUESTION PRESENTED Whether defendant has failed to preserve for appellate review his claim that the trial court erred by having a discussion with a juror in the robing room in the absence of defendant, and whether the alleged error does not fall within the exception to the preservation requirement for “mode of proceedings” errors. COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANNER RIVERA, Defendant-Respondent. Kings County Indictment Number 9921/2007 APPELLANT’S BRIEF PRELIMINARY STATEMENT By order of the Honorable Jonathan Lippman, dated June 26, 2013, granting leave to appeal to this Court, the People of the State of New York appeal from a January 23, 2013 order of the Appellate Division, Second Department. See People v. Rivera, 102 A.D.3d 893 (2d Dep’t 2013). That order reversed, on the law, a judgment of the Supreme Court, Kings County, entered November 23, 2009, convicting defendant Anner Rivera, after a jury trial, of one count of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[3]), and sentencing him to a term of imprisonment of twelve years, and a term of post-release supervision of five years (Firetog, J., at trial and sentence). The Appellate Division ordered a new trial. 2 Defendant is incarcerated on remand status on the pending charge of Criminal Possession of a Weapon in the Second Degree. There were no co-defendants. This Court has jurisdiction pursuant to the New York Constitution, Article VI, section 3, and pursuant to Criminal Procedure Law § 470.35(2)(a), to entertain this appeal and to review the question raised. 3 STATEMENT OF FACTS Introduction On October 6, 2007, at about 5:00 a.m., in front of a garage at 64 Sullivan Street in Brooklyn, defendant Anner Rivera shot Andres Garcia with a handgun twice, in his neck and torso, killing him. Defendant then shot at Richard Cintron and his girlfriend, Krystal Hernandez, both of whom were unarmed, but did not hit them. For these acts, defendant was charged, under Kings County Indictment Number 9921/2007, with one count of Murder in the Second Degree (P.L. § 125.25[1]) and two counts of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[1][b], [3]). The Trial The People’s Case A few years before the shooting, RICHARD CINTRON sold his car to defendant (Cintron: 79, 108-09).1 Defendant paid Cintron part of the agreed price and defendant promised to pay the remainder at a later time (Cintron: 79, 108-09, 112-13). The 1 Unprefixed numbers in parentheses refer to pages of the trial transcript, which is included in the appendix under the same page numbers. Numbers in parentheses prefixed by an “A” refer to pages of the appendix for documents other than the trial transcript. Names in parentheses refer to the witnesses whose testimony is summarized. 4 day before the shootings, defendant met Cintron, and the two men parted amicably (Cintron: 85-86).2 On October 6, 2007, sometime between 3:00 and 4:00 a.m., Cintron, his girlfriend, KRYSTAL HERNANDEZ, and his friends, KENNETH DAVIS, Andres Garcia, and someone named John, were driving together from a nightclub in Manhattan to Sullivan Street in Red Hook, Brooklyn, where some of them had parked their cars (Davis: 24-28, 48, 51; Cintron: 80-82, 84, 126; Hernandez: 309-12, 326, 328-29). At that time, Cintron received a telephone call from someone named Eric, who told Cintron “something negative” about Thomas Gomez (Cintron: 82, 100-03, 113). Once in Brooklyn, the group stopped at a gas station, where Cintron telephoned defendant (Cintron: 82, 101-03, 113, 121; Hernandez: 312, 325-27). Cintron and defendant spoke to each other only briefly before defendant handed his telephone to Gomez (Cintron: 83, 103, 113). Cintron likewise spoke briefly to Gomez before handing his telephone to Garcia, who then had a heated argument with Gomez (Cintron: 83-84, 103, 113). Sometime between 4:30 and 5:00 a.m., Cintron and his friends were parked in front of a garage at 64 Sullivan Street (except possibly for John, who may have already left) when Gomez and defendant drove up in Gomez’s car (Davis: 28-31, 63; 2 Cintron identified defendant in court (Cintron: 82-83). 5 Cintron: 84, 104, 117-18; Detective DANIEL BOGGIANO: 179; Hernandez: 313-15, 328). Gomez exited the car, speaking on a cell phone, saying, “Come quick, brings [sic] guns, brings guns, brings guns” (Davis: 30, 35, 54-55, 58; Cintron: 123-24). Defendant then exited the car from the front passenger seat; the image of that car was captured on a surveillance videotape later recovered by the police (Davis: 29, 31-35; Cintron: 84; Detective THOMAS JUREWICZ: 285-87; Hernandez: 334; Stipulation: 341-42; People’s Ex. 1 [surveillance video]).3 Gomez then approached Cintron, threatened him, and said that defendant was not going to pay him (Cintron: 84-85, 104, 113-14, 118). Gomez and Garcia argued with each other (Davis: 31, 58; Cintron: 84, 86, 105; Hernandez: 315-16, 318, 333).4 Soon thereafter, Gomez’s brother, Mike, drove up in another car and got out (Davis: 35-36; Cintron: 86; Hernandez: 316; People’s Ex. 1). At that point, Hernandez saw that defendant had a gun on the side of his hip (Hernandez: 321, 339). Cintron saw the handle of a gun in Mike’s waist (Cintron: 86). Cintron told Garcia, “[H]e has a gun, be careful” (Cintron: 87). Gomez 3 A DVD containing a copy of the surveillance video is being provided to this Court and to defense counsel with this brief. The relevant events are visible from camera angle 1 in the files named 2007_10_06_04_11_23.image, 2007_10_06_04_14_14.image, and 2007_10_06_04_17_05.image. 4 Davis and Hernandez both identified defendant in court (Davis: 39; Hernandez: 319-20). 6 pulled out his gun (Cintron: 87, 105). Garcia then pulled out a gun and fired first, shooting Gomez five to six times, and causing a bullet fragment to strike Mike in his leg (Cintron: 87, 105-06, 131; Jurewicz: 288-90). Defendant shot Garcia in the neck and torso, killing him (Davis: 40, 42; Cintron: 88-89, Doctor KRISTIN ROMAN: 144-53; Hernandez: 322). Defendant then shot at Cintron and Hernandez, who were both unarmed, but they escaped into the garage (Cintron: 89, 98, 114; Hernandez: 321-22, 324). Davis, who was also unarmed, ran up the block and went into a store, where he told someone to call the police (Davis: 37, 42-43, 58; Cintron: 89-91; Hernandez: 321; People’s Ex. 1). Defendant fled in Mike’s car, while Mike and Gomez fled in Gomez’s car (Cintron: 96-97; People’s Ex. 1). Police officers recovered from the scene: six nine- millimeter shell casings; thirteen .40 caliber shell casings; and eight bullets or pieces of bullets, one of which was embedded in a gold chain that Garcia was known to wear around his neck (Boggiano: 163, 167-69, 171-73, 177-78, 180-85; JENNIFER GARCIA: 226-27; JANET GARCIA: 242-43; Police Officer EDUARDO MERCADO: 250-53; Detective LAWRENCE WALSH: 265-67). A police firearms analysis and microscopic examination expert determined that: all of the .40 caliber shell casings were fired from the same gun; all six of the nine-millimeter shell 7 casings were fired from the same gun; and the weight of the bullet that was embedded in Garcia’s chain was consistent with that of a .40 caliber bullet and inconsistent with that of a nine-millimeter bullet (Detective JAMES VALENTI: 205, 210-12, 214-17). The following morning, On October 7, 2007, detectives arrested defendant at his sister’s apartment (Jurewicz: 278-79, 301). On the way to the precinct stationhouse, defendant told the detectives, who had not questioned defendant, that “he was with his friends and some guy got shot” (Jurewicz: 280, 296). At the stationhouse, defendant waived his Miranda rights and stated that: he went to the garage with Gomez; some people were already at the garage when he and Gomez arrived; Gomez started to argue with some of the people; at some point, Gomez’s brother, Mike, arrived; defendant saw people with guns and heard shooting; and defendant jumped into Mike’s car and drove away (Jurewicz: 280-84). Later that day, Davis and Cintron separately viewed a lineup containing defendant and identified him to police (Davis: 43-44; Cintron: 92-93; Jurewicz: 284). The Defendant’s Case Defendant ANNER RIVERA testified on his own behalf. Defendant testified that, sometime in 2002, he bought a car from 8 Cintron, but that he paid only part of the agreed price (Rivera: 361-62, 426-27). According to defendant, on October 5, 2007, at about 8:30 p.m., defendant and his brother were walking to a store in Red Hook when defendant saw Cintron, Garcia (who he believed was affiliated with the Bloods gang), and another man on Sullivan Street (Rivera: 357-58, 388, 424, 427, 436-38, 444). Defendant testified that he and Cintron spoke about the money that defendant owed, and that, when he told Cintron that he did not have the money for defendant, Cintron said, “[I]t’s going to get ugly” (Rivera: 358-59). Cintron then allegedly made a telephone call to someone named “Doom” in order to ask him about whether he had told defendant that Cintron had enlisted Doom to steal defendant’s car (Rivera: 359-60). Defendant testified that Doom denied the statement and that Cintron stated that he and defendant would settle the matter the following day (Rivera: 361). Defendant further testified that he gave Cintron some money at that time because he was scared of Cintron (Rivera: 361, 436-37). Defendant testified that, on October 6, 2007, at 3:00 a.m., defendant and Gomez were at a club in Manhattan, where Gomez spoke to someone named Jimmy, who knew Cintron (Rivera: 363-64). Defendant further testified that, sometime after 3:30 a.m., defendant and Gomez were driving to Brooklyn when defendant 9 received a telephone call from Cintron, who allegedly said, “What’s this you talking about, that I’m trying to extort you for money” (Rivera: 364-65, 396). Defendant claimed that Cintron told defendant to pass the telephone to Gomez, which defendant did (Rivera: 365). Gomez and Cintron argued (Rivera: 365). Defendant claimed that Cintron told Gomez to meet him at a gas station, but, when Cintron and Gomez arrived, no one was there (Rivera: 365-66, 397). Gomez then allegedly called Cintron, who said that he was at the garage on Sullivan Street (Rivera: 366). Defendant claimed that he and Gomez then drove to Gomez’s home, where Gomez retrieved a gun (Rivera: 366-67, 398-99, 440). Defendant testified that, when he and Gomez arrived at the garage, Gomez got out of the car and walked toward the garage, and that Cintron came out of the garage and put a gun to Gomez’s head (Rivera: 367-68, 380, 404). Defendant claimed that, at that point, he grabbed Gomez’s gun, which Gomez had left on the driver’s seat, put the gun in his waist, and left the car (Rivera: 369, 404-05). Despite the surveillance video, which showed that Gomez and defendant left the car almost simultaneously, defendant claimed that he left the car as much as five seconds after Gomez (Rivera: 403-04; see People’s Ex. 1). Defendant testified that Gomez fought with Cintron to get the gun away from Gomez’s head (Rivera: 368-69, 380). Defendant 10 also testified that both Davis and John were holding guns (Rivera: 370, 379-80, 417-18). Defendant further testified that Garcia grabbed the gun from Cintron and held it in front of his waist (Rivera: 371, 381, 406, 425-26). Gomez’s brother, Mike, arrived and stood by Gomez (Rivera: 371, 381, 422). Cintron and Gomez argued (Rivera: 371, 380-82, 426). Defendant claimed that Garcia then shot Gomez as many as six times, because Gomez had insulted Garcia’s car (Rivera: 372, 382-83, 406-07, 412, 417, 424-25). Defendant further claimed that Garcia fired more than two shots at defendant (Rivera: 375, 383, 408, 412, 417). Defendant then fired thirteen shots at Garcia (Rivera: 375, 412, 414). Defendant claimed that John then fired at him more than three times (Rivera: 383, 412-13). Defendant testified that, at some point, the shooting stopped, and Cintron, Davis, Hernandez, and John disappeared (Rivera: 375, 419-20). Defendant allegedly told Mike to pick up Gomez and told Mike that, while Mike brought Gomez to the hospital, defendant would tell Gomez’s mother what had happened (Rivera: 375-76, 435). Defendant fled in Mike’s car (Rivera: 384, 418-19). Defendant testified that he drove to Gomez’s home, where he told Gomez’s parents what had happened and handed the gun to Gomez’s father (Rivera: 376, 423, 435). Defendant further testified that he called a cab and went to his sister’s home, where the police arrested him (Rivera: 376, 423-24). 11 The Court’s Justification Charge to the Jury In its charge on justification, the court read virtually verbatim from the relevant parts of the pattern Criminal Jury Instructions (554-58). See CJI2d[NY] Penal Law § 35.15. The court instructed the jury that the defendant was not required to prove that he was justified but rather the People were required to disprove justification beyond a reasonable doubt (554). The court described justification as follows: Under our law, a person may use deadly physical force upon another individual when, and to the extent[,] that he reasonably believes it to be necessary to defend himself from what he reasonably believes to be the use or imminent use of such unlawful deadly physical force by such individual. (554). After defining “deadly physical force” and “serious physical injury” (555), the court instructed the jurors that they were required to apply a two-part test: First, the defendant must have actually believed that Andres Garcia was using or about to use deadly physical force against him, and that the defendant’s own use of deadly physical force was not [sic; necessary? (see 577)] to defend himself from it; and, two, a reasonable person in the defendant’s position knowing what the defendant knew and being in the same circumstances would have had those same beliefs. Thus, under our law of justification, it is not sufficient that the defendant honestly believed in his own mind that he was faced with defending himself against the use of or imminent use of deadly physical force. An honest belief no matter how genuine or sincere may yet be unreasonable. To have been justified in the use of deadly physical force, the 12 defendant must have honestly believed that it was necessary to defend himself from what he honestly believed to be the use or imminent use of such force by Andres Garcia, and that he, [sic; a?] reasonable person in the defendant’s position knowing what the defendant knew and being in the same circumstances would have believed that too. On the question of whether the defendant did reasonably believe that deadly physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of such force by Andres Garcia, it does not matter that the defendant was or may have been mistaken in his belief, provided that such belief was both honestly held and reasonable. Notwithstanding the rules I have just explained, the defendant would not be justified in using deadly physical force under the following circumstances: The defendant would not be justified if he was the initial aggressor. Initially [sic] aggressor means the person who first attacks or threatens to attack. That is, the first person who uses or threatens the imminent use of offensive physical force. The actual striking of the first blow or inflictions of the first wound, however, does not necessarily determine who was the initial aggressor. A person who reasonably believes that another is about to use deadly physical force upon him need not wait until he is struck or wounded. He, may, in such circumstances be the first to use deadly physical force so long as he reasonably believed it was about to be used against him[.] [H]e is not considered to be the initial aggressor even though he strikes the first blow or inflicts the first wound. Arguing, using abusive language, calling a person names or the like, unaccompanied by physical threat or act does not make a person an initial aggressor and does not justify physical force. The People are required to prove beyond a reasonable doubt that the defendant was not justified. It is, thus, an element of all the counts in the indictment that the defendant was not justified. As a result, if you find that the People have failed to 13 prove beyond a reasonable doubt that the defendant was not justified, then you must find the defendant not guilty of all counts. (555-58). Later, during the jury’s deliberations, the court received a note from the jury, asking for “a clear meaning of what the word justified is” (574). In response, the court repeated, almost verbatim, its previous charge on justification (575-79). The Court’s Ex Parte Discussion with a Juror During deliberations, the court received a note from the jury, asking for clarification as to when the jurors could consider that defendant was in imminent danger: at the time defendant and Gomez left the car or immediately before the shooting (581). The prosecutor, defense counsel, and the court agreed that, because the jury’s question was a question of fact that the jury would have to decide, the court would tell the jury that the court could not answer the question (581). When the jury was called into the courtroom, the following colloquy occurred: THE COURT: I received your note asking for a clarification here. Unfortunately, I cannot help you in any way. This is a fact question. It’s totally up to you to decide the facts from the evidence in the case. JUROR: It’s just that that is our main complication. Some of our main complications. THE COURT: The fact is that’s what you’re going to have to do, you have to deliberate and you’re going 14 to stop deliberating now and come back tomorrow morning. (581-82). After releasing the jurors for the day, the court called the prosecutor and defense counsel to the bench, where an off- the-record conference was held (584). When the record resumed, the court, juror eleven, and the court reporter were alone in the robing room (584). The court said that one of the attorneys had informed the court that the juror wanted to speak to the court, and that both the prosecutor and defense counsel had suggested that the court speak to the juror on the record, but outside of their presence (584). The following exchange occurred: 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 15 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. JUROR #11: Is tomorrow the last day that we have to make a decision? THE COURT: I can’t tell you that. It really will depend on how the jury as a group decides. JUROR #11: Okay. THE COURT: All right. JUROR #11: Thank you very much. THE COURT: I think that our discussion here should remain between us and basically -- JUROR #11: Basically what you covered in the courtroom. THE COURT: It’s exactly what I said in the courtroom. I can’t give you any more guidance than that. Have a pleasant evening. (584-86). In the courtroom, and in the presence of the prosecutor and defense counsel, the court said that it had spoken to juror eleven and had put on the record that the court had spoken to the two attorneys, who had both wanted the court to speak to the juror (586). The court stated that it believed that juror eleven had written the jury note, because the juror had asked 16 again for guidance about when a person was considered in imminent danger (586-87). The court said: I indicated that what I told him in court is exactly what I have to tell him now, that this is a fact question to be determined by the jury itself. And he asked me would tomorrow be the last day and I said I couldn’t tell him and that was it. (587). The court further stated, “I have it on the record if you want it read back to you at some point” (587). Realizing that defendant was not present, the court waited for defendant to appear and repeated everything that it had just said to the attorneys (587). The court again said that the attorneys could request a read back of the conversation (587-88). Neither defendant nor his attorney said anything (587-88). The Verdict and the Sentence On October 30, 2009, the jury acquitted defendant of Murder in the Second Degree (P.L. § 125.25[1]) and Manslaughter in the First Degree (P.L. § 125.20[1]), but found him guilty of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[3]) (590-92). On November 23, 2009, the court sentenced defendant to a term of imprisonment of twelve years and a term of post-release supervision of five years (A606). 17 The Appeal Defendant appealed from his judgment of conviction to the Appellate Division, Second Department, and raised three claims: (1) that defendant’s right to be present was violated when, in the absence of defendant, the court gave a supplemental instruction to a juror in the robing room; (2) that the court improperly considered acquitted conduct when sentencing defendant; and (3) that the sentence was unduly harsh and excessive. On January 23, 2013, the Appellate Division reversed defendant’s judgment of conviction, on the law, and ordered a new trial (Aii-iii). People v. Rivera, 102 A.D.3d 893 (2d Dep’t 2013). The Appellate Division held that the Supreme Court erred when it received and answered the juror’s questions, in the robing room and outside the presence of defendant, defense counsel, the prosecutor, and the other jurors, where the juror’s questions “directly related to the substantive legal and factual issues of the trial” (Aiii). 102 A.D.3d at 893-94. Furthermore, the Appellate Division held that the error affected “the organization of the court or the mode of proceedings prescribed by law” and that therefore preservation was not required, even though counsel may have consented to the procedure (Aiii). 102 A.D.3d at 894 (citations and quotation marks omitted). 18 In a certificate dated June 26, 2013, the People were granted leave to appeal to this Court (Ai). People v. Rivera, __ N.Y.3d __ (2013) (Lippman, C.J.). 19 SUMMARY OF ARGUMENT Defendant has failed to preserve for appellate review his claim that the trial court erred by giving a supplemental instruction to a juror in the robing room and in defendant’s absence. The Appellate Division held, however, that the alleged error was exempt from the preservation requirement because it was a “mode of proceedings” error, even though the trial court had substantially cured the alleged error when the court explained to defendant and his attorney what had happened in the robing room and told them that they had the option of hearing a readback of the court’s discussion with the juror. The holding of the Appellate Division is contrary to the purposes of the preservation requirement and to the principle that the “mode of proceedings” exception to the preservation requirement should apply to only a “tightly circumscribed” class of errors that “go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.” See People v. Kelly, 5 N.Y.3d 116, 119-20 (2005). Moreover, this Court’s decisions in Kelly and in People v. Kadarko, 14 N.Y.3d 426 (2010), support the conclusion that an error that might otherwise constitute a “mode of proceedings” error is removed from that exception to the preservation requirement when the trial court substantially cures the error. Furthermore, a claim of a violation of a defendant’s right to be 20 present during supplemental jury instructions should be subject to the preservation requirement when the trial court takes appropriate steps to cure the error, because a contrary holding would unnecessarily require the trial court to declare a mistrial in order to remedy the error, and because a defendant may reasonably seek to waive his challenge to the error once it has been substantially cured by the court. The trial court in this case substantially cured any violation of defendant’s right to be present because, by explaining to defendant and his attorney what had happened in their absence, and by informing them that they could hear a readback of the court’s discussion with the juror, the court gave defendant an opportunity to provide input regarding the instruction at a time when any appropriate further instruction could have been given. Consequently, the court’s discussion with the juror in the absence of defendant did not constitute a “mode of proceedings” error, and the claim of error was subject to the preservation requirement. Therefore, contrary to the conclusion of the Appellate Division, reversal of the judgment of conviction was not required as a matter of law. Accordingly, this Court should reverse the order of the Appellate Division and remit the case to that court for a determination of whether review of defendant’s claim is warranted in the interest of justice. 21 ARGUMENT DEFENDANT’S CLAIM REGARDING A CONVERSATION BETWEEN THE TRIAL COURT AND A JUROR IN THE ABSENCE OF DEFENDANT IS UNPRESERVED, AND DOES NOT FALL WITHIN THE “MODE OF PROCEEDINGS” EXCEPTION TO THE PRESERVATION REQUIREMENT, BECAUSE THE COURT PROMPTLY INFORMED DEFENDANT AND HIS ATTORNEY OF THE CONTENT OF THE CONVERSATION AND OFFERED TO READ BACK THAT CONVERSATION. During jury deliberations, and with the advance consent of defense counsel, the trial court, in defendant’s absence, met with a juror in the robing room and made a statement to the juror that may technically have constituted an instruction on the law. Immediately thereafter, the court informed defendant and his attorney about the content of the court’s discussion with the juror and told them that they had the option of hearing a readback of that discussion. Neither defendant nor his attorney requested such a readback or expressed any objection to the court’s discussion with the juror. In the Appellate Division, defendant claimed that the trial court violated his statutory and constitutional rights to be present during the trial court’s supplemental instruction to a juror in the robing room (Defendant’s Appellate Division Brief at 19-24). At trial, however, defendant did not advance that claim, even though the court notified defendant about the content of the conversation in the robing room immediately after that conversation had occurred and offered to read back the 22 conversation (587-88). Consequently, the claim is unpreserved for appellate review as a matter of law. See C.P.L. § 470.05(2); People v. Kelly, 5 N.Y.3d 116 (2005) (claim that court officer had impermissibly communicated with deliberating jury was subject to preservation requirement because court immediately convened the parties, told them what had happened, and gave them a chance to respond). Contrary to the conclusion of the Appellate Division, the alleged error was not a “mode of proceedings” error that excused defendant’s failure to preserve his claim, because the trial court had substantially cured the error. Therefore, defendant’s claim that the trial court violated his right to be present is unpreserved, and the Appellate Division erred by holding that reversal of the judgment was required as a matter of law. Accordingly, the Appellate Division’s order should be reversed, and the case should be remitted to that court to decide whether to consider defendant’s claim as a matter of discretion in the interest of justice. See C.P.L. §§ 470.40(2), 470.15(6)(a); People v. Autry, 75 N.Y.2d 836, 839 (1990); People v. Creech, 60 N.Y.2d 895 (1983). 23 A. A “Mode of Proceedings” Error that Is Substantially Cured by the Trial Court Is Subject to the Preservation Requirement. An alleged violation of a defendant’s right to be present at trial is not “mode of proceedings” error when, as in this case, the trial court took appropriate steps to cure the alleged error. Preservation is ordinarily required in order for an appellate court to review a question of law. See C.P.L. § 470.05(2) (“For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same”); Kelly, 5 N.Y.3d at 119 (“Ordinarily, preservation is essential to the exercise of this Court’s jurisdiction, which is limited to the review of questions of law”). “There is one very narrow exception to the requirement of a timely objection,” which is that “[a] defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings proscribed by law.” People v. Patterson, 39 N.Y.2d 288, 295 (1976), aff’d, 432 U.S. 197 (1977). Errors involving the “mode 24 of proceedings” are errors that “go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.” Kelly, 5 N.Y.3d at 119-20; People v. Agramonte, 87 N.Y.2d 765, 769-70 (1996); Patterson, 39 N.Y.2d at 295. But “[n]ot every procedural misstep in a criminal case is a mode of proceedings error.” People v. Becoats, 17 N.Y.3d 643, 651 (2011), cert. denied, 132 S. Ct. 1970 (2012); see also People v. Hawkins, 11 N.Y.3d 484, 492 n.2 (2008). Such errors represent “significant departure[s]” from the organization of the court or the mode of proceedings prescribed by law. People v. Starling, 85 N.Y.2d 509, 516 (1995); People v. O’Rama, 78 N.Y.2d 270, 279 (1991). Furthermore, such errors are within a “tightly circumscribed class,” and outside that limited category, this Court “ha[s] repeatedly held that a court’s failure to adhere to a statutorily or constitutionally grounded procedural protection does not relieve the defendant of the obligation to protest.” Kelly, 5 N.Y.3d at 119-20 (footnote omitted); see also Becoats, 17 N.Y.3d at 651; Agramonte, 87 N.Y.2d at 770; Patterson, 39 N.Y.2d at 295-96. Where an error that would otherwise qualify as a “mode of proceedings” error is substantially cured by the trial court, the error no longer represents a “significant departure” from the prescribed law (see Starling, 85 N.Y.2d at 516) and the 25 trial is not “irreparably tainted” by the error (see Kelly, 5 N.Y.3d at 119-20). Thus, given the purposes served by the preservation requirement and the principle that, in light of those purposes, the “mode of proceedings” exception to the preservation requirement should apply to only a “tightly circumscribed” class of errors (Kelly, 5 N.Y.3d at 119-20), an error that has been substantially cured by the trial court should no longer be deemed to fall within the “mode of proceedings” exception to the preservation requirement. See People v. Casey, 95 N.Y.2d 354, 367 (2000) (“From its inception to this day, our mode of proceedings error case law has emphasized the importance of the curability of a particular procedural defect as a factor weighing in favor of requiring preservation”). The decisions of this Court in People v. Kadarko, 14 N.Y.3d 426 (2010), and People v. Kelly, 5 N.Y.3d 116 (2005), support the conclusion that an error that would otherwise constitute a “mode of proceedings” error is removed from that exception to the preservation requirement when the trial court substantially cures the error. In Kadarko, the defendant claimed that the trial court’s failure to read verbatim to the defense attorney the contents of a jury note before the court gave the jury an instruction in response to the note was a “mode of proceedings” error. 14 26 N.Y.3d at 428-29. This Court held, however, that, because the trial court “later corrected itself” by showing defense counsel the note after the jury instruction had been given and after the resumption of deliberations, the court’s procedure may have been error under C.P.L. § 310.30, but did not constitute a “mode of proceedings” error. Id. at 429-30. In Kelly, a court officer conducted a demonstration in the jury room during deliberations without the trial court’s knowledge or approval. 5 N.Y.3d at 118. The defendant claimed that the court officer’s conduct deprived him of his constitutional right to trial by jury because the court officer had usurped the judge’s power of supervision, which is an integral component of a jury trial. Id. at 119-21. The defendant further claimed that the court officer’s unsupervised demonstration constituted an error that need not be preserved and cannot be waived except by a defendant in writing, in the court’s presence and with its approval. Id. at 119. This Court disagreed, holding that, because the trial court immediately convened the parties when it learned about the demonstration, told them what had happened, and, in response to defense counsel’s request, instructed the jury to disregard the court officer’s demonstration, the error was “protestable but unprotested, curable and cured,” and therefore was not a “mode of proceedings” error. Id. at 118, 120-21. 27 Thus, Kadarko and Kelly addressed two different types of alleged “mode of proceedings” errors (in Kadarko, a violation of the notice requirement of C.P.L. § 310.30, and in Kelly, a violation of the right to supervision of the jury by a judge), and together these cases stand for the proposition that an error that would otherwise constitute a “mode of proceedings” error does not constitute such an error when the trial court takes appropriate steps to cure the error. In this case, the type of error asserted by defendant -- that the trial court violated the defendant’s right to be present during a supplemental jury instruction -- in some circumstances constitutes a “mode of proceedings” error. See, e.g., People v. Mehmedi, 69 N.Y.2d 759 (1987) (claim that court had violated defendant’s right to be present under C.P.L. § 310.30, where defendant was absent from proceeding at which court and attorneys consulted about response to jury note, concerned a “mode of proceedings” error). But it does not follow, as the Appellate Division apparently concluded, that all violations of a defendant’s right to be present during a supplemental jury instruction, regardless of the steps taken by the trial court to cure the error, are “mode of proceedings” errors. Indeed, there are compelling reasons for this Court to hold that a violation of a defendant’s right to be present during supplemental jury instructions should be subject to the 28 preservation requirement when the trial court takes appropriate steps to cure the error. First, a trial court, upon realizing that it has erred by giving an instruction in the defendant’s absence, should be able to cure that error without having to declare a mistrial. If a trial court were required to conclude that whenever a juror, or the jury, was given a supplemental instruction outside of the defendant’s presence, that error would constitute a “mode of proceedings” error, regardless of what remedial steps the court may have taken thereafter, then the court would be obliged to declare a mistrial in every such case. Requiring the court to declare a mistrial in order correct an error of giving an instruction in the defendant’s absence, rather than allowing the court to employ a less drastic remedy that would permit the trial to proceed, would lead to an unnecessary waste of resources that the preservation rule was enacted to avoid. See Patterson, 39 N.Y.2d at 295 (“Strict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State’s fundamental interest in enforcing its criminal law could be 29 frustrated by delay and waste of time and resources invited by a defendant” [citation omitted]). Second, in some instances a defendant may want to waive his challenge to the error once it has been substantially cured by the trial court, rather than to have the court declare a mistrial. After all, if a juror is given a supplemental instruction outside of the defendant’s presence, and the defendant, after being fully informed about the content of the instruction, believes that the instruction was correct and that he was not prejudiced by the fact that the instruction was given outside of his presence, then the defendant may choose to continue with the trial rather than to seek a mistrial; but if the alleged error were deemed to be a “mode of proceedings” error despite the court’s remedial steps -- which would mean that the defendant could not consent to the court’s having given the instruction outside his presence -- then the court would be compelled to declare a mistrial even if the defendant objected to a mistrial. See People v. Gray, 86 N.Y.2d 10, 21 (1995) (“A defendant in a criminal case cannot waive, or even consent to, error that would [a]ffect the organization of the court or the mode of proceedings prescribed by law” [quoting Patterson, 39 N.Y.2d at 295; emphasis in Gray]); Mehmedi, 69 N.Y.2d at 760 (defendant’s absence from proceeding at which court gave instruction to jury constituted “mode of proceedings” error, 30 “even though counsel may have consented to the procedure”); cf. Kelly, 5 N.Y.3d at 119, 121 (unauthorized demonstration by court officer in jury room during deliberations was not mode of proceedings error, where, “instead of asking for a mistrial or even protesting the jury room demonstration, defendant opted for a curative instruction and the continuation of deliberations”; “defendant obviously wanted the case to go to verdict, and was satisfied with a curative instruction”). In People v. Autry, 75 N.Y.2d 836 (1990), this Court held that a claim of error regarding an extended instruction to the jury that no adverse inference should be drawn from the defendant’s failure to testify did not fall within the exception to the preservation requirement, noting that “it [was] entirely possible that the failure to object represent[ed] counsel’s trial level determination that an extended instruction to the jury would benefit these defendants.” Id. at 839. Similarly, in this case, defense counsel reasonably could have concluded that no objection was warranted, because the court, by informing defendant of the content of the instruction that had been given in his absence, had adequately cured any error, and because the instruction given in defendant’s absence merely repeated an instruction that had already been given to the entire jury after notice to defendant and in defendant’s presence. Because defendant reasonably could have concluded that, at trial, no 31 objection was warranted to his absence during the court’s supplemental instruction, he should not be permitted, on appeal, to obtain a windfall by characterizing the court’s giving the instruction in his absence as a “mode of proceedings” error that he can challenge as a matter of law even in the absence of an objection at trial. See People v. Wright, 17 N.Y.3d 643, 651 (2011) (defendants should not be able to “obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it. To expand the definition of ‘mode of proceedings’ error too freely would create many such anomalous results”). B. The Asserted Violation of Defendant’s Right to Be Present Is Not a “Mode of Proceedings” Error, Because the Trial Court Substantially Cured the Alleged Error. The trial court’s alleged violation of defendant’s right to be present was at most a de minimis violation and was substantially cured by the court. Therefore, that alleged violation does not constitute a “mode of proceedings” error and the claim of error is subject to the preservation requirement. A defendant’s constitutional, due process right to be present at trial requires his presence when it “has a relation, reasonably substantial, to the fullness of his opportunity to defendant against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), quoted in People v. Harris, 76 N.Y.2d 32 810, 812 (1990). In addition, under New York law, a defendant has the right to be present at all stages of the trial where the defendant can make a meaningful contribution, even if due process does not require his presence. See C.P.L. § 260.20 (a defendant “must be personally present during the trial of an indictment”); People v. Morales, 80 N.Y.2d 450, 456 (1992) (statutory right to be present generally requires defendant’s presence where defendant “has something valuable to contribute”). Accordingly, both the defendant and his attorney have the right to be present at all proceedings during which the court instructs the jury regarding fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to the particular case and the application of the law to the facts. See People v. Ciaccio, 47 N.Y.2d 431, 437 (1979). However, a de minimis violation of a defendant’s right to be present at trial may not require reversal of a conviction. Morales, 80 N.Y.2d at 457 n.2. The requirements of C.P.L. § 310.30 insure that a defendant’s right to be present during a supplemental jury instruction will be safeguarded. Ciaccio, 47 N.Y.2d at 437. C.P.L. § 310.30 provides, in relevant part, that, when a deliberating jury requests further instruction or information from the court, the court “must direct that the jury be returned to the courtroom and, after notice to both the people and 33 counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” “[T]he trial court’s core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request -- in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response -- and to provide a meaningful response to the jury.” People v. Kisoon, 8 N.Y.3d 129, 134 (2007) (citing O’Rama, 78 N.Y.2d at 277). In this case, the remedial steps taken by the trial court adequately cured any alleged violation of defendant’s right to be present during the court’s conversation with the juror. During jury deliberations, the court received a jury note asking for clarification as to when the jury could consider that defendant was in imminent danger: when defendant came out of the car after he and Gomez arrived on Sullivan Street, or immediately before the shooting occurred (581). After consulting with defense counsel and the prosecutor in defendant’s presence, the court called the jury into the courtroom and told them that their question was a question of fact and, because the jury had to decide the facts from the evidence, the court could not instruct them further (581-82). The court then ordered the jury to suspend their deliberations and released them for the day (582-84). 34 After the jury left the courtroom, the court and a juror had a conversation in the robing room, outside of the presence of defendant and the attorneys. The court noted that one of the attorneys had informed the court that a juror wanted to speak with the court, and that both attorneys had suggested that the court speak to the juror outside of their presence (584). The juror then essentially repeated the question from the jury note, asking the court when, under the law, the jurors could deem defendant “responsible”: “before the actions took place” or “once they arrived to the scene” (585). The court declined to give the juror any legal instruction and told the juror instead that, because the question was a question of fact for the jury, there was no instruction the court could give, and that the jury would “just have to just work it out, look at the evidence and, you know, evaluate what you’ve heard and make a decision” (585- 86). The court stated, “It’s exactly what I said in the courtroom. I can’t give you any more guidance than that” (586). Immediately after the court met with the juror, the court informed defendant and his attorney about the content of the court’s discussion with the juror and told them that they had the option of hearing a readback of that discussion (587-88). Thus, defendant was fully informed about what had happened in his absence, and, if defendant had wanted to hear a verbatim account of the court’s conversation with the juror, defendant 35 could have done so. If defense counsel believed that the court had erred by instructing the juror in defendant’s absence and that a readback of the conversation with the juror would not have been an adequate remedy, then counsel could have objected and could have requested that the court reinstruct the individual juror, or the entire jury, in defendant’s presence, thereby curing the alleged error. Indeed, because, before the court met with the juror and had the conversation, the court had already dismissed the jury for the day (582-84), defendant had ample time to consider whether there was any necessity to reinstruct the jury, and the court could have delivered any requested reinstruction before deliberations resumed the following morning. The conclusion that, in light of the trial court’s remedial steps, the alleged violation of defendant’s right to be present was not a “mode of proceedings” error, is further supported by the de minimis nature of the alleged violation of that right. The court’s response to the juror’s question was not an exposition on the evidence or law applicable to the case, but rather was, in substance, a statement informing the juror that the court could not answer the juror’s question. Moreover, the court’s response was merely a repetition of the instruction given by the court in response to a jury note, which instruction had immediately preceded the court’s discussion with the juror, 36 and which the court had given after advance notice to defendant and his attorney, and in their presence. Therefore, although the court did not provide defendant with an opportunity to suggest a response to the juror’s question before the court gave a response to the juror, the court did give defendant an opportunity to provide input regarding the response at a time when any error could have been corrected or any appropriate further instruction could have been given. But neither defendant nor his attorney expressed any objection. Because the court notified defendant about the content of the conversation in the robing room immediately after that conversation had occurred and offered to read back the conversation, because defendant did not object to the court’s discussion with the juror, did not request a readback of that discussion, and did not request that any further instruction be given, and because any alleged violation of defendant’s right to be present during the conversation with the juror was de minimis, the remedial steps taken by the trial court adequately cured the alleged violation of that right. Consequently, the alleged violation of that right did not constitute a “mode of proceedings” error. See People v. Cordero, 308 A.D.2d 494 (2d Dep’t 2003) (after beginning to respond to jury note outside of defendant’s presence, the court, realizing its error, aborted the response, and reconvened and responded to the jury’s note in 37 the courtroom in defendant’s presence, thereby curing any error); see also Gable v. State, 31 Ala. App. 280, 285-86, 15 So. 2d 594 (Ala. Ct. App. 1943) (defendant’s absence from supplemental jury instruction cured where court recalled jury and instructed them in defendant’s presence), cert. denied, 322 U.S. 726 (1944). This case is analogous to cases holding that a defendant’s absence from a Sandoval discussion held off the record can be cured by the defendant’s presence at a subsequent Sandoval hearing held on the record at which the defendant is given the opportunity to object to the court’s ruling. See People v. Favor, 82 N.Y.2d 254, 259-60, 268 (1993) (defendant was excluded from portion of Sandoval proceeding at which his prior crimes were identified and court made preliminary Sandoval ruling, but court’s de novo determination was made on the record in defendant’s presence); People v. Hailey, 221 A.D.2d 466 (2d Dep’t 1995) (defendant’s absence from Sandoval discussion was cured by Sandoval hearing held next day, where previous hearing was summarized, court informed defendant of crimes about which prosecutor was seeking to inquire, and defendant was given opportunity to comment before decision was rendered); People v. Forte, 243 A.D.2d 578 (2d Dep’t 1997) (defendant’s absence from Sandoval discussion was cured by a de novo hearing on the record in defendant’s presence); People v. Bartell, 234 A.D.2d 956 (4th 38 Dep’t 1996) (same); People v. Lynch, 216 A.D.2d 929 (4th Dep’t 1995) (same); People v. Valentine, 212 A.D.2d 399 (1st Dep’t 1995) (same); People v. Weathers, 212 A.D.2d 820 (2d Dep’t 1995) (same). A defendant’s presence is necessary at a Sandoval hearing because of particular knowledge that the defendant might have in advancing his or her position or countering that of the prosecution. People v. Rodriguez, 85 N.Y.2d 586, 590-91 (1995); People v. Dokes, 79 N.Y.2d 656, 660 (1992). Given that a defendant’s absence from a Sandoval hearing can be cured by placing the substance of the hearing on the record in the defendant’s presence in order to provide the defendant with an opportunity to be heard on the Sandoval issue, then, similarly, a defendant’s absence when the trial court gives a supplemental instruction to a juror must also be curable by the court’s immediate notification of the defendant about the content of the juror’s question and the court’s instruction, which provides the defendant with an opportunity to request any appropriate reinstruction. That conclusion -- that a defendant’s absence when a supplemental instruction is given to a juror is cured by the court’s prompt notification of the defendant about the content of the juror’s question and the court’s response -- is also supported by cases holding that the deprivation of a defendant’s 39 right to be present during a sidebar conference with a prospective juror may be remedied by a de novo inquiry of the prospective juror in the defendant’s presence. See People v. Roman, 88 N.Y.2d 18, 27, 29 (1996) (where trial court replicated de novo in defendant’s presence the sidebar conference concerning a juror’s misgivings on serving because of a possible prior acquaintance with defendant, and invited further questioning by the prosecution and defense, defendant was given a full and fair opportunity to give meaningful input regarding the discretionary decision to challenge the juror peremptorily, and any violation of right to be present was de minimis); People v. Camacho, 90 N.Y.2d 558, 562-63 (1997) (no Antommarchi violation where court initially screened prospective jurors at the bench in the presence of both counsel, excused some jurors and retained others on an “Antommarchi list,” and conducted proper, de novo Antommarchi inquiries, in defendant’s presence, of the jurors on the list); see also People v. Thompson, 262 A.D.2d 666 (2d Dep’t 1999) (defendant had opportunity to meaningfully contribute to any decision to excuse a prospective juror when, although defendant may have been absent during a sidebar conference at which the prospective juror’s relationship with a police officer was mentioned, the prospective juror later repeated the substance of her sidebar comments in open court and in defendant’s presence). 40 Thus, in light of the prompt remedial steps taken by the trial court, the alleged error of giving an instruction to a juror in defendant’s absence does not fall within the “mode of proceedings” exception to the preservation requirement. See Kadarko, 14 N.Y.3d at 430 (no mode of proceedings error where court “later corrected itself”); Kelly, 5 N.Y.3d at 121 (no mode of proceedings error where impropriety was “curable and cured”); People v. Pichardo, 79 A.D.3d 1649, 1651-52 (4th Dep’t 2010) (no mode of proceedings error where court informed defendant of allegedly improper communication by court officer with deliberating jury and gave defendant opportunity to respond). C. Conclusion Defendant’s claim that the trial court violated his right to be present during a supplemental instruction to a juror is unpreserved for appellate review. Furthermore, contrary to the Appellate Division’s holding, the “mode of proceedings” exception to the preservation requirement does not apply to defendant’s claim, because the trial court substantially cured the alleged error. Accordingly, this Court should reverse the Appellate Division’s order and remit the case to the Appellate Division for that court to decide whether to consider defendant’s claim in the interest of justice. CONCLUSION FOR THE FOREGOING REASONS, THIS COURT SHOULD REVERSE THE ORDER OF THE APPELLATE DIVISION AND REMIT THE CASE TO THAT COURT FOR IT TO DECIDE WHETHER TO CONSIDER DEFENDANT'S CLAIM IN THE INTEREST OF JUSTICE. Dated: Brooklyn, New York September 23, 2013 Respectfully submitted, CHARLES J. HYNES District Attorney Kings County ~.OLV1.~ LEONARD JOBLOVE ADAM M. KOELSCH Assistant District Attorneys of Counsel 41