The People, Respondent,v.Lawrence Parker, Appellant.BriefN.Y.March 20, 2018 Oral argument of 30 minutes requested by: RYAN P. MANSELL ________________________________________________________ COURT OF APPEALS State of New York _______ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LAWRENCE PARKER APL–2016–00076 MARK NONNI, APL–2016–00076 Defendant-Appellants. ________________________________________________________ R E S P O N D E N T’ S B R I E F ________________________________________________________ DARCEL D. CLARK District Attorney, Bronx County Attorney for Respondent 198 East 161st Street Bronx, New York 10451 mansellr@bronxda.nyc.gov (718)-838-6239 NANCY D. KILLIAN RYAN P. MANSELL Assistant District Attorney Of Counsel June 2, 2017 ________________________________________________________ PRINTED ON RECYCLED PAPER i TABLE OF CONTENTS STATEMENT ............................................................................................................ 1 QUESTIONS PRESENTED ................................................................................... 2 THE FACTS ............................................................................................................... 3 Facts Adduced At The Wade/Dunaway/Mapp Hearing .................................. 3 The Court’s Ruling ................................................................................................. 5 The Trial .................................................................................................................. 6 Defendants’ Appeal to the Appellate Division ................................................. 15 ARGUMENT............................................................................................................ 18 POINT I: Defendants Suppression Claims Are Unreviewable; Alternatively, They Are Utterly Without Merit ...................................................... 18 A. There is ample evidence in the record to support the suppression court’s determination that the police acted with the requisite level of suspicion, making it an unreviewable mixed issue of law and fact. ....... 18 B. Parker’s actions were not an exercise of his “right to be left alone” .... 22 C. Nonni’s claim—that the money found inside envelopes recovered from his pocket should have been suppressed—is not preserved; alternatively, it is without merit. ................................................................. 24 D. Even if the envelopes full of money should have been suppressed, the suppression court’s failure to do so was merely harmless error. ........... 31 POINT II: The Handling Of Two Jury Notes Did Not Constitute A Mode of Proceedings Error; Alternatively, This Court Should Remit To The Trial Court For A Reconstruction Hearing ................... 33 A. The jury notes does not fall within the scope of O’Rama because the jury implicitly rescinded its requests for factual information by coming to a verdict. ................................................................................................... 35 B. Alternatively, there was no mode of proceedings error because counsel had all the notice necessary to maximize participation in the court’s decision to accept the verdict. .................................................................... 39 ii C. The availability of procedures which do not constitute mode of proceedings errors requires that, in certain circumstances, a reconstruction hearing be ordered to make the record complete for review and avoid unjustified reversals. ...................................................... 46 CONCLUSION ........................................................................................................ 52 iii TABLE OF AUTHORITIES STATE CASES People v Agosto, 73 NY2d 963 (1989) ............................................................................. 36, 38 People v Albanese, 45 AD3d 691 (2d Dept 2007) .......................................................... 35, 37 People v Alcide, 21 NY3d 687 (2013) .............................................................................. 41, 46 People v Alexander, 37 NY2d 202 (1975) ............................................................................. 19 People v Allen, 24 NY3d 441 (2014) ..................................................................................... 43 People v Barnes, 139 AD3d 1371 (4th Dept 2016) .............................................................. 37 People v Benjamin, 51 NY2d 267 (1980) ............................................................................... 20 People v Brown, 25 NY3d 973 (2015) .................................................................................... 19 People v Brujan, 104 AD3d 481 (1st Dept 2013) ................................................................. 20 People v Carrero, 140 AD2d 533 (2d Dept 1988) .................................................... 36, 37, 38 People v Castro, 68 NY2d 850 (1986) ................................................................................... 19 People v Chandler, 110 AD2d 970 (3d Dept 1985) .............................................................. 38 People v Coons, 75 NY2d 796 (1990) .................................................................................... 44 People v Cornodo, 60 AD3d 450 (1st Dept 2009) ................................................................. 35 People v Cruz, 14 NY3d 814 (2010) ................................................................................ 48, 49 People v Cruz, 57 AD3d 1453 (4th Dept 2008) .................................................................. 48 People v Dancey, 57 NY2d 1033 (1982) ................................................................................ 27 People v Diaz, 81 NY2d 106 (1993)................................................................................ 19, 31 People v Dien, 77 NY2d 885 (1991) ...................................................................................... 25 People v Elie, 150 AD2d 719 (2d Dept 1989) ..................................................................... 37 People v Emiliano, 81 AD3d 436 (1st Dept 2011) ............................................................... 23 People v Evans, 15 NY3d 571 (2011) .................................................................................... 31 People v Exum, 208 AD2d 557 (2d Dept 1994) .................................................................. 23 People v Fletcher, —NY3d—, 2016 NY Slip Op 05883 (2016) ......................................... 18 People v Flores, 88 AD3d 902 (2nd Dept 2011) .................................................................. 23 iv People v Flowers, 28 NY3d 536 (2016) .................................................................................. 31 People v Ford, 69 NY2d 775 (1987) ...................................................................................... 25 People v Fuentes, 246 AD2d 474 (1st Dept 1998) ................................................................ 35 People v Gokey, 60 NY2d 309 (1983) .................................................................................... 30 People v Gonzalez, 293 NY 259 (1944) ................................................................................. 45 People v Gonzalez, 55 NY2d 887 (1982) ......................................................................... 25, 26 People v Gray, 86 NY2d 10 (1995) ........................................................................................ 25 People v Hall, 101 AD2d 956 (3d Dept 1984)............................................................... 37, 38 People v Hanley, 20 NY3d 601 (2013)................................................................................... 45 People v Harrison, 57 NY2d 470 (1982) ................................................................................ 19 People v Ippolito, 20 NY3d, 615 (2013) ................................................................................. 39 People v Jimenez, 22 NY3d 717 (2014) .................................................................................. 30 People v Johnson, 111 AD3d 469 (1st Dept 2013) ............................................................... 20 People v Johnson, 86 AD2d 165 (1st Dept 1982) .................................................................. 30 People v Jones, 11 NY3d 822 (2008) ...................................................................................... 19 People v Kahley, 105 AD3d 1322, 1325 (4th Dept 2013) .............................................. 48, 49 People v Kelly, 5 NY3d 116 (2005) ........................................................................................ 45 People v Linton, 32 AD3d 909 (2d Dept 2005) ................................................................... 31 People v Lykes, 81 NY2d 767 (1993) .................................................................................... 40 People v Mack, 27 NY3d 534 (2016) ............................................................................. passim People v Major, 115 AD3d 1 (1st Dept 2014) ...................................................................... 23 People v Malloy, 55 NY2d 296 (1982) ................................................................................... 45 People v Martin, 50 NY2d 1029 (1980) .......................................................................... 25, 26 People v Martinez, 186 AD2d 14 (1st Dept 1992) ............................................................... 48 People v Martinez, 80 NY2d 444 (1992) ............................................................................... 21 People v McLucas, 15 NY2d 167 (1965) ............................................................................... 44 People v Mercado, 25 NY3d 936 (2015) ................................................................................. 19 v People v Meyers, 148 AD3d 1057 (2d Dept 2017) ............................................................... 48 People v Miles, 298 NY 360 (1942) ....................................................................................... 44 People v Mitchell, 129 AD3d 404 (1st Dept 2015) ................................................... 48, 49, 51 People v Mitchell, 136 AD3d 401 (1st Dept 2016) ......................................................... 48, 49 People v Nealon, 26 NY3d 152, 162 (2015) .................................................................... 42, 46 People v Newton, 147 AD3d 1463 (4th Dept 2017)............................................................. 48 People v O’Rama, 78 NY2d 270 (1991) ......................................................................... passim People v Parris, 4 NY3d 41 (2004) ........................................................................................ 47 People v Patterson, 39 NY2d 288 (1976) .................................................................... 27, 29, 44 People v Patterson, 53 NY2d 829 (1981) ................................................................................ 27 People v Pines, 99 NY2d 525 (2002) ...................................................................................... 18 People v Quintana, 262 AD2d 101 (1st Dept 1999) ............................................................ 35 People v Ramirez, 15 NY3d 824 (2010) .......................................................................... 40, 41 People v Rivera, 53 NY2d 1005 (1981).................................................................................. 27 People v Rivera, 73 NY2d 941 (1989) .............................................................................. 24, 25 People v Russo, 283 AD2d 910 (4th Dept 2001) ................................................................. 48 People v Sanders, 227 AD2d 506 (2d Dept 1996) ................................................................ 37 People v Shabazz, 99 NY2d 634 (2003) ................................................................................ 27 People v Sierra, 83 NY2d 928 (1994) .................................................................................... 20 People v Silva, 24 NY3d 294 (2014) ................................................................................ 42, 46 People v Smith, 59 NY2d 454 (1983) .................................................................................... 30 People v Starling, 85 NY2d 509 (1995) .................................................................................. 40 People v Tabb, 13 NY3d 852 (2009) ..................................................................................... 47 People v Turriago, 90 NY2d 77 (1997) .................................................................................. 25 People v Tutt, 38 NY2d 1011 (1976) ..................................................................................... 25 People v Velasquez, 1 NY3d 44 (2003) .................................................................................. 47 People v Vidal, 26 NY2d 249 (1970) .................................................................................... 25 vi People v Volition, 83 NY2d 192 (1994) ................................................................................. 24 People v Walston, 23 NY3d 986 (2014) ..................................................................... 41, 43, 44 People v William, 19 NY3d 891 (2012) ................................................................................. 19 People v William, 81 AD3d 453 (1st Dept 2011) ................................................................. 20 People v Williams, 113 AD3d 1116 (4th Dept 2014) .......................................................... 48 People v Williams, 21 NY3d 932 (2013) ................................................................................ 41 People v Wright, 34 NY2d 776 (1974) ................................................................................... 25 STATUTES Criminal Procedure Law § 310.30 ............................................................................... passim Criminal Procedure Law § 470.05(2) ............................................................... 24, 25, 27, 28 Criminal Procedure Law § 470.35 ...................................................................................... 28 Criminal Procedure Law § 470.35(2)(b) ............................................................................. 28 Criminal Procedure Law §470.15(6)(a) .............................................................................. 27 OTHER AUTHORITIES Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, CPL § 470.05 ............................................................................................................................................. 28 Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 NYUL Rev 1249 (2006) .................................................................................................................................. 28 CONSTITUTIONAL PROVISIONS NY Const Art VI §3 ............................................................................................................. 29 FEDERAL CASES Terry v Ohio, 392 US 1 (1968) ............................................................................................... 27 COURT FILINGS People’s 500.11 submission, People v. Timoteo Ramirez, 2010 WL 6083740 (NY) .......... 41 1 COURT OF APPEALS STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Lawrence Parker Mark Nonni, Defendant-Appellants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Sallie Manzanet-Daniels, a Justice of the Appellate Division, First Department, defendants Lawrence Parker and Mark Nonni appeal from an order of the Appellate Division, First Department, entered on November 5, 2015, which affirmed a judgment of the Supreme Court, Bronx County (Moore, J. at hearing; Stadtmauer, J. at trial), convicting defendants of Robbery in the Second Degree (Penal Law § 160.10[1]), and sentencing the defendants, as mandatory violent felony offenders, to indeterminate terms of twenty-years-to-life. Defendants are currently incarcerated. 2 QUESTIONS PRESENTED 1. Whether the police acted with the level of suspicion necessary to justify their initial common law inquiry and subsequent pursuit, detention, and limited search, where the defendants were the only people observed on the precise private property where a burglary had just occurred and then fled from the police. The Appellate Division, First Department, affirmed defendants’ judgments of conviction and the majority rejected defendants’ suppression arguments. 2. Whether the handling of two jury notes that were implicitly withdrawn by the jury was proper. Neither the Supreme Court, Bronx County, nor the Appellate Division, First Department had an opportunity to address defendants’ contention that the trial court improperly handled two jury notes. Defendants raise this argument—for the first time—on appeal to this Court. 3 THE FACTS Facts Adduced At The Wade/Dunaway/Mapp Hearing On January 21, 2008, at 9:30 a.m., Officers Delaney, Lemp, Fraterrigo, Balaj, and Martinez, along with Sergeant Morales received a radio-run of a burglary in progress at Westchester Country Club (hereinafter “the club”) located on Country Club Road (A207).1 The radio-run did not contain information regarding the appearances or number of individuals involved (A144, 207). While en route to the location, the officers did not observe any people walking or driving in the area (A210, 222). Indeed, the Country Club area of the Bronx is a residential community with a few interspersed commercial country clubs, and it would be unusual to see persons from the area outside at that time, as they would either already be at work or in school. Approximately five minutes after receiving the radio-run, the officers—in two marked police vehicles and one unmarked car—converged on Country Club Road (A209). As they approached, the officers looked for the address but realized they had passed the location (A190). Having “overshot” the location, the officers parked their vehicles to the south (A143), closer to Polo Place (A227), and began to look around for the exact address (A144). The exact address was not very clearly marked (A190– 191), and the building at that address sat approximately 80 feet off the public road at the end of a long private driveway (A142, 169–171). The driveway itself was surrounded by fences (A218–219) and was closed off at the front-end by a gate marked with the address (A144, 190–191, 210). 1 All citations preceded by “A” are in reference to defendant Nonni’s Appendix. 4 As soon as the officers noticed the address marked on the front gate, they saw two individuals behind the gate—approximately thirty feet from the building’s entrance—walking away from the building and up the private driveway towards Country Club Road (A187, 189, 193, 197, 210, 219). There were no other individuals in the entire area (A177, 181). When the two individuals were about forty feet away from the officers, who had not walked beyond the front gate (A191), Officer Martinez told them to stop and that they “were police officers and wanted to ask them a question” (A146). The two individuals continued to walk until they were about twenty feet away from the officers, at which point Officer Martinez again stated “please, stop, we want to ask you a question” (A146–147, 177). Defendant Mark Nonni began to run towards Country Club Road and Campbell Drive (A173, 177). The officers were just south of the front gate and were unable to block Nonni’s path (A197–198). Officers Delaney, Lemp, and Martinez pursued Nonni approximately one-hundred and fifty yards until Officer Martinez caught him on the southwest corner of Campell Drive and Country Club Road (A160). Officers Delaney and Lemp tackled Nonni, and Officer Lemp was cut by a foot-long serrated knife that had torn through the black backpack worn by Nonni (A150–151, 179). Officer Delaney then put Nonni face-down on the ground and placed him in handcuffs because he was striking the officers and flailing (A149, 178, 183). At that point, Nonni was immediately placed under arrest (A177). Officer Lemp searched Nonni at the arrest location and recovered a butcher knife, a little knife, and a roll of duct tape from Nonni’s backpack, as well as three bank deposit envelopes with orange highlighting each containing $1,000 from his back 5 left pocket (A154–155). The officers then walked Nonni back to the parked police vehicles where the complainant identified him as one of the perpetrators of the burglary (A161–162). At the same time Nonni began to run, the other individual, defendant Lawrence Parker, began moving at a hurried pace and briskly walked across the street and into the front lawn of a residence (A211, 220, 228). Officer Fraterrigo, accompanied by Officer Balaj, pursued Parker across the street and told Parker to stop (A211). Officer Fraterrigo caught up to Parker and observed a sledgehammer inside an unzipped red backpack worn by Parker. Officer Fraterrigo then grabbed Parker’s hands but Parker struggled—moving his arms, hiding his hands, and flailing—and Balaj assisted in cuffing him (A211–212). Officer Fraterrigo then searched Parker’s backpack and recovered a crow bar, as well as a small steak knife from Parker’s front right coat pocket (A213). The complainant came out while Officer Fraterrigo’s back was turned and yelled that Parker was “the guy” while pointing at Parker (A215). The Court’s Ruling In a Decision and Order dated April 5, 2010, the court (Moore, J.) credited the testimony of Officers Delaney and Fraterrigo and found that the police officers acted lawfully in stopping and detaining defendants (A98–112). Their initial request for defendant Nonni to “stop” so they could “ask a question” was proper in light of the two men’s presence on the exact property where a burglary was purportedly in progress (A110). The court ruled that the officers’ initial request for defendants to stop did not constitute a seizure because they had a common law right of inquiry (id.). 6 Defendants’ subsequent flight elevated that common law right of inquiry to reasonable suspicion, thereby “justifying the pursuit and seizure” (id.). The court also held that the subsequent search of defendants was “justified and lawful” (id.). The victim’s identification of defendant was ruled spontaneous and, based on that identification, police had “requisite probable cause to effectuate defendant’s arrest” (id.). Defendants’ motions to suppress were denied in their entirety. The Trial On January 21, 2008, at approximately 9:15 a.m., Robert Ederle and his wife, Anne Ederle, were inside of their apartment at the club, a private establishment for homeowners living in the Country Club section of The Bronx (A323–324, 327–328, 385–386, 473, 482–483). The club is set in a residential area along the water with little commercial activity (A323, 384, 471, 473–475, 609, 619–621, 790). Mr. and Mrs. Ederle served as the “caretakers” of the club and, in addition to a small salary, received a rent-free apartment located in the same building as the club (A324–325, 373, A374–375, 473, 480–482). As the “caretakers” of the property, the Ederles performed janitorial duties such as cleaning and maintenance of the property (A480). The main features of the club include a bar where members and their guests can have a drink, and a catering room that is available for rent (A326, 328, 386; 483). Since the water became polluted, membership declined and the club had fallen into poor financial straits (A484). In 2008, Mr. Ederle served as the club’s bartender and, in an effort to “drum up business,” organized several football pools at the bar (A327, 361, 376, 395, 480–481, 484–485, 659, 665). Those football pools ranged in 7 price from anywhere between $10 per box and $10,000 per box. Each pool consisted of 100 boxes, making a $10 pool worth $1000 in prize money and the $10,000 pool worth $1,000,000. The various pools were placed on oak boards and displayed in the bar (A395–398, 418–419,485–486, 489, 515, 625). Fearing a robbery, Mr. Ederle did not keep the cash for the pools in the club (A488, 583, 634–635). Although Mr. Ederle ran these pools in the bar, neither the club nor the bar received an automatic percentage of the winnings, but Mr. Ederle was accustomed to receiving a tip from the winner (A426–427, 489–490, 631–632, 668). On Friday night, January 18, 2008, at approximately 8:00 p.m., a woman entered the bar and identified herself as “Samantha Sanchez” (A337–338, 392, 465,490–492).2 Prior to that night, Mr. and Mrs. Ederle had never seen this woman, but she claimed to have a member reference and was interested in renting the catering room (A359, 392, 491–492, 642). Pursuant to that conversation, Mrs. Ederle escorted Mrs. Sanchez upstairs to show her the room and explained that it could hold a maximum of 100 people (A339, 353–354, 450, 493–494). After showing her the room, Mrs. Ederle brought Mrs. Sanchez back to the bar and Mr. Ederle handed her a business card attached to a price list (A354–355, 503– 504, 637–639, 641; People’s 46: Flyer and business card). Mrs. Sanchez took the paper and left the bar. Once outside, the Ederles observed Mrs. Sanchez turn the opposite direction from where she had entered the bar, which they thought strange since that 2 “Samantha Sanchez” was later identified as Pamela Williams and indicted under Bronx Co. Ind. No. 4415/2009 for Conspiracy in the Fifth Degree based on her participation in this robbery. On August 19, 2010, Ms. Williams pled guilty to Disorderly Conduct, in full satisfaction of the indictment, and received community service and a conditional discharge. 8 direction required her to make almost a complete loop of the club to return to the driveway (A355–356, 468, 504, 641–643). Within two minutes of leaving, Mrs. Sanchez called the bar and spoke with Mr. Ederle about making arrangements for her husband to see the catering room. An appointment was made for “Mr. Sanchez” to come to the club on Monday morning, January 21, 2008, at 9:30 a.m. (A357, 392–393, 788–791). In the interim, on Sunday, January 20, 2008, there was a playoff game between the Green Bay Packers and New York Giants (A360, 508–509). That night, Mr. Ederle was busy bartending at the club, and there were several football pools in play for the game. Those pools, as well as the $1,000,000 Super Bowl pool, were displayed on the wall inside the bar (A360–361, 394, 508, 515). At approximately 8:00 p.m., Anthony Devita walked into the bar, and Mr. Ederle recognized him as a patron at a bar where Mr. Ederle had previously worked.3 Mr. Devita stayed for approximately ten minutes and then left the bar. Approximately ten minutes later, he returned to the bar and stayed for another ten minutes before leaving again (360–363, 508–510, 514– 517).4 On Monday morning, January 21, 2008, at approximately 9:20 a.m., Mr. Ederle left his apartment and went to the club for his meeting with “Mr. Sanchez” (A364, 518–519, 521, 555). When Mr. Ederle opened the front door of the club, he saw 3 Mr. Devita was later arrested and charged, under Bronx Co. Docket No. 2009BX058816, with Robbery in the Second Degree (Penal Law §§160.10[1] and [2][a] and [3]); Robbery in the Third Degree (Penal Law §160.05); and Conspiracy in the Fourth Degree (Penal Law §105.10[1]), based on his participation in this robbery. On September 24, 2009, he pled guilty under SCI No. 3069/2009, to fourth-degree conspiracy and received three years of probation. 9 Parker and Nonni walking up the driveway toward the club house (A519–523, 525, 527, 555, 645, 647–648; People’s 13; People’s 35). As Mr. Ederle watched the two men get closer, he saw that Parker was holding the price list with the club’s business card that Mr. Ederle had previously given to Samantha Sanchez (A519–522, 527, 604– 607, 647; People’s 46: Flyer and Business Card). Believing that Parker was Mr. Sanchez, Mr. Ederle greeted Parker and Nonni, brought them inside the club, and up the stairs to the catering room, which was directly above the Ederle’s apartment (A520–522, 529–530, 557–558; People’s 19; People’s 21; People’s 22). While Mr. Ederle showed them the room, Parker and Nonni were constantly positioning themselves so that Mr. Ederle was not able to see both men at the same time (A530– 531, 562–563). Suddenly, as Mr. Ederle moved closer to Parker, Parker yelled out, “Now!” and pulled a black handled steak knife from his backpack (A532–533, 564, 574, 678; People’s 39: Photograph of Parker’s knife). As Parker moved closer with the knife pointed at Mr. Ederle’s torso, Mr. Ederle used his forearm to strike Parker, causing him to fall back (A533, 564–565, 574, 678–679, 681, 720). Mr. Ederle then “spun around” and saw Nonni pointing a fourteen inch knife at Mr. Ederle’s lower back, near his kidney. With the knife in his hand, Nonni said, “Don’t move motherfucker. I’ll kill you” (A535–536, 564–565, 574, 576–577, 682–683; People’s 38; People’s 49A). Mr. Ederle immediately put his hands in the air and Nonni said, “Where’s the money motherfucker? We want the football pool money. Where’s your wife?” (A536, 578). Nonni then told Mr. Ederle to lay on his stomach on the floor, which he did, with his face pressed into the rug. Parker then got on top of Mr. Ederle and straddled 10 Mr. Ederle’s neck between his legs (A537–538, 577–578). Mr. Ederle told the men that he could not breathe and Parker told him to “put [his] hands behind [his] back, don’t move, I’ll kill you” (A538, 578). Parker then held a knife to the back of Mr. Ederle’s neck, causing several scratches, while Nonni used duct tape to bind Mr. Ederle’s wrists behind his back (A538–539, 572, 574, 579–580, 720, 723–724; People’s 10: Photograph of scratches on Mr. Ederle’s neck; People’s 29: same; People’s 48A: Knife Parker held against Mr. Ederle’s neck). With his hands bound, Parker and Nonni again asked Mr. Ederle for the money from the football pools, and Mr. Ederle told them it was in a room downstairs (A538, 578). Parker removed the knife from Mr. Ederle’s neck and Nonni held his knife against Mr. Ederle’s kidney area and told him to stand up (A580). Once standing, Nonni placed a “rag” in Mr. Ederle’s mouth, secured it with duct tape, and told Mr. Ederle they were all going downstairs to get the money (A580–581). With Nonni holding a knife to his kidney area, Mr. Ederle led the men downstairs to a storage room where Mr. Ederle had $3000 in cash hidden in a metal soda canister (A580–582, 584–586, 649, 662, 688, 704; People’s 15: Photograph of storage room; People’s 16: Photograph of soda canister; People’s 49A). The money was in three separate envelopes, each containing red markings and $1000 (A598–602, 649; People’s 36: Photographs of the envelopes; People’s 37: Photograph of envelopes and money). Mr. Ederle showed Nonni where the money was hidden and Nonni entered that storage room and removed the three envelopes containing the 11 cash from the soda canister (A586, 600, 662).5 Nonni then spoke to someone on the telephone, saying, “We got it, that’s all there is” (A586–587). Parker and Nonni then told Mr. Ederle to kneel on a recliner in the adjoining room. Once kneeling on that recliner in the inclined position, Mr. Ederle’s feet were bound above his ankles with duct tape, and Parker threw a comforter over Mr. Ederle’s body (A586–590, 650, 683, 715, 717; People’s 12; People’s 44: Photograph of duct tape). Once Mr. Ederle was covered, the room went silent. After a few seconds, Mr. Ederle said that he had another $500 and, getting no response, threw himself off the chair and removed the comforter from his body (A591–592, 650). Parker and Nonni were gone. Mr. Ederle quickly freed his hands, but when the duct tape wouldn’t come loose around his ankles, he “kicked and pushed” his pants off and ran to the apartment (A592, 650– 651).6 Meanwhile Mrs. Ederle, heard three sets of footsteps above her in the catering room (A364–365, 392, 398, 447–448, 453). Only expecting to hear two sets of footsteps, Mrs. Ederle thought it strange that there was an extra set of feet. As she listened, she heard a loud thud in the catering room (A364–365, 392, 398, 429, 453). After hearing this loud thud, Mrs. Ederle became very nervous and frightened but, not wanting to overreact, did not immediately call the police. Instead, Mrs. Ederle 5 On cross-examination, Mr. Ederle admitted that he did not “actually see Nonni with the $3,000” (A697). 6 On January 21, 2008, at approximately 12:05 p.m., Police Officer Kegham Jarjokian, of the NYPD Evidence Collection Team (ECT), arrived at the crime scene and collected three pieces of duct tape that were lying among a blanket and a pair of pants (A912–920, 927, 942; People’s 40, 44, 55A, and 56). Those three pieces of duct tape were sent for DNA analysis, with negative results (A929, 946–950). 12 called Mr. Ederle’s best friend and neighbor, Joe Cotter, who told Mrs. Ederle call the police (A365–368, 399–400). Mrs. Ederle then called 911 and, within approximately five minutes, Mr. Cotter arrived at the apartment (A368–369, 399, 428, 445). As Mrs. Ederle and Mr. Cotter waited in the kitchen, Mr. Ederle arrived at the apartment and was very agitated (A370, 404, 430, 592, 6518). Mr. Ederle then grabbed his keys and a softball bat, and he and Mr. Cotter left the apartment (A370–372, 402, 404, 430, 592– 593, 651–652, 693). Back on Country Club Road, Police Officers Peter Delaney, Joseph Lemp, and Sgt. Morales, of the 45 Precinct Anti-Crime Unit, as well as Police Officers Martinez, Michael Fraterrigo, and Daniel Balaj, arrived within the immediate vicinity of the club pursuant to a radio run of a “burglary in progress” (A736–738, 766,787–790, 851– 852). Having passed the location by “a couple of houses,” the officers exited their vehicles and stood outside looking for the exact address (A740, 743, 791,853).7 They observed Parker and Nonni walking up the driveway of the location, away from the clubhouse and toward the street (A741–743, 757–758, 765, 772, 792–793, 814, 854– 855; People’s 30: Photograph of driveway). There were no other pedestrians in the area (A761, 769). Parker was wearing a tan coat and carrying a red backpack, and Nonni was wearing a black jacket and carrying a black bag (A745, 750, 752, 795–800, 821, 888; People’s 48B: Parker’s red backpack; People’s 49B: Nonni’s black backpack). Parker and Nonni were approximately twenty or twenty-five yards away 7 The address numbers are displayed on a sign outside of the premises on Country Club Road (A813). 13 from where Officer Fraterrigo was standing when he saw them walking up the driveway (A770–771). As Parker and Nonni were walking on the driveway of the burglarized location, Officer Martinez called out to them, “Police. Come over here, we want to ask you a question” (A743, 771, 793, 854). Parker and Nonni did not stop walking or acknowledge the officers. The officers started walking toward Parker and Nonni and, again, Officer Martinez called out for them to stop walking. With the officers moving closer, Nonni took off running up the driveway and turning right toward Campbell Drive (A744, 756, 793–794, 816, 822, 854, 870). After Nonni ran, Officers Martinez, Delaney, and Lemp chased after him while Officers Fraterrigo and Balaj followed Parker, who had “elevated his pace” across the street to the front lawn of a residence (A744). Once he caught up to Parker, Officer Fraterrigo saw a sledgehammer inside Parker’s open and unzipped backpack (A745, 751, 753; People’s 48B; People’s 48C). Parker then flailed his arms trying to avoid being handcuffed (A745). Once Parker was in handcuffs, Officer Fraterrigo looked inside his unzipped, open backpack and, in addition to the sledgehammer, saw one crowbar. During a search of Parker’s person, Officer Fraterrigo recovered a knife from his coat pocket (A746, 751–752; People’s 48A; People’s 48D). While Officer Fraterrigo was standing with Parker on the lawn, he heard a man yell, “That’s him! That’s the motherfucker who did it!” (A747). When Officer Fraterrigo turned around, he saw Mr. Ederle standing in the street pointing at Parker (id.). Officers Martinez, Delaney, and Lemp caught up to Nonni on the corner of Campbell Drive and Country Club Road where he was placed into handcuffs (A794– 14 795, 822, 830–831, 849, 854, 871–872, 882–884). After getting cut by a knife protruding from Nonni’s backpack, Officer Lemp searched the backpack and recovered a long serrated knife that was poking out of the bag, another knife, and a roll of duct tape (A795–800, 822, 836–839, 841, 856, 858–859, 875, 877; People’s 49A: long serrated knife; People’s 49B; People’s 49C; People’s 49F: roll of duct tape). Additionally, Officer Lemp recovered three envelopes from Nonni’s back pants pocket each containing red markings and $1000 in cash, and a cell phone (A803, 842, 856–857, 861; People’s 36; People’s 37). Officers Martinez, Lemp, and Delaney then walked Nonni back to the location where Mr. Ederle was standing in the middle of the street, pointing at Nonni and yelling, “That’s the other guy!” (A596, 726, 750, 804, 859–860, 886–887). Robert Ederle identified the three envelopes and their contents as the envelopes and money that were removed from the soda canister in the storage room (A599–600; People’s 36 and 37). Renada Lewis, the custodian of records at Verizon Wireless, authenticated phone records for cell phone numbers registered to Parker and Anthony Devita. Certified records showing the subscriber information from Sprint/Nextel were admitted for Parker’s cell phone. According to these records, two calls were made between Anthony Devita’s cell phone and Parker’s cell phone on January 18, 2008 at 8:07 p.m., and 8:08 p.m. Again, on January 20, 2008, the records show that a cellular phone call was made between Anthony Devita and Parker at approximately 9:10 p.m. Finally, on January 21, 2008, at approximately 9:35 a.m., the records show that there was a phone call placed between Nonni and Anthony Devita (A961–962, 964–965, 15 968, 974–975, 977, 982–983, 990, 1007, 1018–1027; People’s 57; People’s 58; People’s 59). Defendants’ Appeal to the Appellate Division On appeal before the Appellate Division, First Department Nonni argued that the court erred in finding that the police had the requisite suspicion to stop, pursue, or detain and arrest him. Parker similarly argued that the police had nothing more than an objective, credible reason to request information. Parker also argued that he was merely exercising his right to be left alone by walking briskly away from the officers. In response, the People asserted that the police had a common law right to inquire when they observed defendants, in a desolate area, in the private driveway of the exact location where a reported burglary was reported five minutes earlier. The People elaborated that the officers had the right to approach and inquire whether the two men were victims, witnesses, or suspects of the burglary, and that the use of the word “please” and phrase “we want to ask you a question” would not lead a reasonable person to believe that the police were placing a significant limitation on his freedom. The People then argued that defendants’ flight, coupled with their presence on private grounds at the location of the burglary, gave rise to reasonable suspicion sufficient to justify a detention. As for Parker’s unique claims, the People argued that “speed” is not the defining characteristic of “flight.” The People also emphasized the role that the in-plain-view sledgehammer played in justifying Parker’s detention. Finally, the People argued, the use of handcuffs on Nonni was justified under either of two theories: (1) he was under arrest for attempted assault on an officer, or (2) after 16 an officer had been cut by a knife in his backpack, handcuffs and a search of the offending backpack were necessary due to a legitimate concern for safety. The Appellate Division considered and rejected both defendants’ suppression arguments and held that the judgments of conviction should be affirmed. The court initially stated its ultimate conclusion that “each of the successive police actions at issue was justified by the requisite level of suspicion.” People v. Nonni, 135 AD3d 52, 54 (1st Dept 2015). The Court described the specific facts justifying the initial level-two common-law inquiry: Five minutes after receiving a radio run reporting a burglary in progress, the police responded to the location. This was a private, gated country club, and the police were aware that it was the specific location mentioned in the radio message…[t]he police saw defendants on the club's private driveway, walking toward the street, while carrying bags, and no one else was present.… defendants were not walking on a public thoroughfare in the vicinity of the reported burglary…they were walking down the private driveway leading to the street from the premises reported just five minutes before to have been burglarized, with no one else in sight. Id. at 54–55. The court then determined that “the police did not exceed the bounds of a common-law inquiry when they requested defendant’s to stop so that the police could ‘ask them a question’” Id. at 56. The court also concluded that “both defendants ‘actively fled from the police; rather than exercising their ‘right to be let alone…[and] [d]efendants’ flight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention.” Id. at 57. The court additionally commented that the protruding knife and visible sledgehammer justified “the use of handcuffs to secure [defendants]” and an 17 “immediate and protective search” of each defendant’s bag and person. Id. at 58. Finally, the court considered and rejected defendant’s remaining suppression arguments, as well as Nonni’s ineffective assistance of counsel claim and Parker’s challenge to the Sandoval ruling. Id. at 58–59. Justices Rosalyn Richter and Sallie Manzanet-Daniels dissented, on the basis that, at best, the officers were justified in conducting a level one request for information. The Appellate Division had no opportunity to consider defendants’ O’Rama arguments, as neither defendant raised the issue in their submissions. 18 ARGUMENT POINT I Defendants Suppression Claims Are Unreviewable; Alternatively, They Are Utterly Without Merit. Defendants claim that the suppression court erred in holding that the officers had the requisite level of suspicion to justify the initial common law inquiry and the subsequent pursuit, detention, and limited search. Parker specifically argues that the court inappropriately considered Nonni’s flight in concluding that the officers were justified in pursuing and detaining Parker.8 Nonni specifically contends that the search of the envelopes inside his pocket was unlawful. Defendants’ claims, however, are unreviewable, and, in any event, the police acted at all times with the requisite level of suspicion necessary to justify their inquiries, pursuit, detention, and limited searches. For these reasons, defendants’ claims must be denied and the decision of the Appellate Division must be affirmed. A. There is ample evidence in the record to support the suppression court’s determination that the police acted with the requisite level of suspicion, making it an unreviewable mixed issue of law and fact. Whether the circumstances of a particular case give rise to a founded or reasonable suspicion presents a mixed question of law and fact that is beyond this Court’s review if that determination has record support. See People v Fletcher, — NY3d—, 2016 NY Slip Op 05883 (2016); see also People v Pines, 99 NY2d 525, 527 (2002). The dispositive issue, then, is “whether there was evidence at the suppression 8 Notably, Parker, in an effort to “clearly present an issue of law to this Court,” does not contest the lower court’s finding that “the officers had a founded suspicion when they approached the men and ordered them to stop” (Parker brief at 29). 19 hearing to support the hearing court’s determination.” People v Castro, 68 NY2d 850, 850 (1986). If such support exists, this Court’s review must end, even where “different conclusions may have been reasonable at the fact finding level.” People v William, 19 NY3d 891, 893 (2012); see also People v Alexander, 37 NY2d 202, 204 (1975) (“where more than one inference may be drawn from the facts, the question of probable cause is primarily one of fact, and this court has no power to review factual determinations”); People v Harrison, 57 NY2d 470, 479 (1982) (same). Here, record support exists for the suppression court’s determinations. Accordingly, all of defendants’ claims regarding police action in this case are unreviewable mixed questions of law and fact. Contrary to Nonni’s assertions, the court’s determination that certain conduct was sufficient to justify a common-law inquiry is not a pure question of law. Defendants do not allege that the officers’ conduct—telling defendants to please stop so that they could be questioned—exceeded the scope of a common law right of inquiry, but instead argue that the officers had no founded suspicion at all. See People v Brown, 25 NY3d 973, 975 (2015); see also People v Mercado, 25 NY3d 936, 937 (2015) (“determinations regarding founded suspicion of criminality justifying a request to search…involved mixed questions of law and fact”); see also People v Jones, 11 NY3d 822, 823 (2008) (same). Accordingly, this claim is beyond this Court’s further review. See People v Diaz, 81 NY2d 106, 108–109 (1993). Turning to the record support for the suppression court’s determination, the question is not whether each piece of information in and of itself had a conceivable innocent interpretation, but whether the “totality of the information available to the 20 police” provided the requisite level of suspicion. People v Johnson, 111 AD3d 469, 469 (1st Dept 2013); see also People v Benjamin, 51 NY2d 267, 270 (1980) (“whether the action taken was justified…in view of all the circumstances”). Furthermore, it is well- settled that “a defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit.” People v Sierra, 83 NY2d 928, 929 (1994). Here, defendants were seen walking together in an otherwise desolate area of a secluded residential neighborhood. They were walking towards the public road on the private driveway of the exact location where a burglary was reported just five minutes earlier. “[G]iven the extremely close temporal and spatial proximity to the reported crime, and the absence of anyone else in the vicinity…there was a strong likelihood that these men were robbers.” People v Brujan, 104 AD3d 481, 481–82 (1st Dept 2013) (emphasis added), citing People v William, 81 AD3d 453 (1st Dept 2011), affd 19 NY3d 891. Accordingly, when the police arrived on scene they had a founded suspicion that criminal activity was afoot and the officers had the right to approach and inquire whether the only two men in the vicinity were victims, witnesses, or suspects of the burglary. Exercising their common-law right to inquire, the officers twice informed defendants that they wished to ask them a few questions. After failing to respond, Nonni ran in one direction and Parker briskly walked in the other. Given all the circumstances that justified the earlier initial common-law inquiry, defendants’ flight gave the officers’ reasonable suspicion to pursue and detain them. See People v Martinez, 21 80 NY2d 444, 448 (1992) (defendant’s flight may be considered in conjunction with attendant circumstances such as time and location). Only by ignoring the character of the burgled property and surrounding area, as well as the circumstances that brought the police into contact with their persons, can defendants argue that the record did not support the hearing court’s determination. Indeed, Nonni’s arguments are premised upon a version of “facts” utterly at odds with those found by the Appellate Division. For example, Nonni strains mightily to characterize the small, single-structure yacht club located in a residential neighborhood as a “sprawling…commercial establishment” where “there could have been scores of innocent people” (Nonni brief at 34, 36; A123). Defendant, however, could not simply have been “one of the many people conducting legitimate business on the premises,” (Nonni brief at 36) because there were no other people on the property or anywhere in the vicinity (A210, 221–222). Indeed, the Appellate Division concluded that defendants were apprehended in a secluded section of a suburban residential neighborhood. See Nonni, 135 AD3d at 55. This conclusion was amply supported by the record, which consisted of specific testimony describing the area as “secluded,” “residential,” and “suburban”—where there would typically be very few people—as well as an aerial photograph depicting a suburban neighborhood (A221– 222; People’s Hearing Ex. 1; People’s Trial Ex. 53; A123).9 9 Nonni concedes that the police would “likely” have had reasonable suspicion if the defendants were seen walking down the driveway of a “suburban” home in the wake of a reported burglary (Nonni brief at 36). Here the area was “suburban” and the Ederles lived at the club. Indeed, Officer Delaney specifically described it as Mr. Ederle’s “private home” (A169). Moreover, People’s Trial Exhibit Number 53 shows that the club consisted of a single structure no larger than the surrounding residential properties (A123). Far from a “different story,” then, the facts of the instant case warrant the same treatment as Nonni’s hypothetical suburban home. 22 Nonni also heavily editorializes his conduct, claiming that he was engaged in a “purely innocuous act” (Nonni brief at 34). Defendants, however, were not “merely walking on a commercial property” (id.). Rather, defendants—each wearing a backpack—were walking away from the very premises that had just been burglarized. Thus, not only was there ample record support for the conclusions of the Appellate Division, but defendants’ arguments depend on factual allegations that are simply not borne out by the extant record. B. Parker’s actions were not an exercise of his “right to be left alone.” Defendant Parker unpersuasively argues that his brisk walk away from police did not constitute flight, and that the Appellate Division improperly imputed the flight of his co-defendant, Nonni, to him (Parker brief at 29). The Appellate Division, however, did not rest its determination that defendant “actively fled from the police” on co-defendant Nonni’s flight. Instead, the Appellate Division held that, under all the circumstances, pursuit of Parker was justified when “Parker immediately made what officers described as a ‘hurried’ and ‘evasive’ departure.” Nonni, 135 AD3d at 56–57.10 Because the Appellate Division did not find Parker “responsible for the 10 Parker trudges up an ancillary comment in the court’s footnotes to suggest that the court imputed Nonni’s flight to Parker. This footnote is essentially dicta, because, as the court held, the police were already justified in their pursuit based on Parker’s conduct alone. See People v Taylor, 9 NY3d 129, 164 (2007) (Read, J., dissenting), citing Leval, Madison: Judging Under the Constitution: Dicta about Dicta, 81 NYU L Rev 1249 (2006) Even if the court’s determination as to Parker was, in part, based on Nonni’s flight, there is nothing impermissible about analyzing the appropriateness of pursuit under the totality of the circumstances. Parker seeks to isolate the suspicious acts of each defendant to diminish their collective effect, but the totality of information includes actions taken by others who are together in close proximity. See People v Johnson, 111 AD3d 469, 469–70 (1st Dept 2013) (defendant’s behavior, considered in light of “preceding factors,” including “a pattern of suspicious behavior” by another man, justified frisk); see also People v Allen, 42 AD3d 331, 332 (1st Dept 2007) (frisk justified “notwithstanding any possible innocent explanations for defendant’s individual actions” [emphasis added]). 23 independent actions of his co-defendant,” there is no reviewable “matter of law.” Since the only remaining question—whether the officers’ pursuit of Parker was justified by his flight—is a mixed question of law and fact, Parker’s claim is unreviewable, and his conviction must be affirmed. As for his contention that the Appellate Division improperly concluded that his “fast walking” constituted flight, Parker can point to no case by this Court, or any intermediate court, whereby flight is primarily defined by the rate at which one departs. Parker can’t find support for his proposition because the determinative factor is, instead, whether defendant “engaged in furtive or evasive conduct.” People v Major, 115 AD3d 1, 6 (1st Dept 2014), citing People v Emiliano, 81 AD3d 436 (1st Dept 2011), lv denied 17 NY3d 794 (2011). For example, a defendant’s conduct may amount to flight where he turns away from police, increases his pace, or darts behind a car or into a building. See Major, 115 AD3d at 6; see also People v Flores, 88 AD3d 902, 903 (2nd Dept 2011) (police officers acted properly in stopping and detaining defendants where they “changed directions and walked away at a quicker pace with their heads lowered and hands raised”), lv denied 18 NY3d 858 (2011). Accordingly, when accompanied by this type of evasive conduct, walking, like running, can constitute flight. See People v Exum, 208 AD2d 557 (2d Dept 1994). Here, just after the police asked Parker to stop, he “hurried [his] pace” from “casually walking” to “briskly walking,” and darted onto the front lawn of a residential property after crossing the public roadway (A219, 228). Officer Fraterrigo characterized Parker’s actions as “evasive” (A220). Taken together, then, Parker’s actions are nearly indistinguishable from the suspicious actions of the defendants in 24 Flores, and elevated the encounter by providing the police with the reasonable suspicion necessary to justify their pursuit. See Flores, 88 AD3d at 902-903. Accordingly, there was ample record support for the Appellate Division’s unreviewable finding that Parker’s hurried and evasive departure warranted additional police intrusion, and, regardless, no error of law was committed. Thus, in view of all the circumstances, the police had the requisite level of suspicion necessary for the initial common-law inquiry as well as the subsequent pursuit and detention of each defendant. C. Nonni’s claim—that the money found inside envelopes recovered from his pocket should have been suppressed—is not preserved; alternatively, it is without merit. Nonni claims that the police conducted a warrantless search of his pocket without sufficient justification. This claim is unpreserved, and preservation is required because the claimed error is not one affecting “the organization of the court or the mode of proceedings proscribed by law” People v Rivera, 73 NY2d 941, 942 (1989); See People v Volition, 83 NY2d 192, 195–196 (1994); CPL § 470.05(2). The issue went unlitigated during the hearing, and neither counsel nor the court preserved this claim under CPL § 470.05(2). Indeed, the court indicated its belief that “the question that I have in my mind, which I think is applicable law in the case, is did they have a common-law right of inquiry and then what does flight do to elevate or not elevate the actions the police took. I suggest that’s the question I have to answer,” to which defense counsel responded, “I agree with the Court a hundred percent in terms of the law that the Court just now indicated” (A250). 25 While the prosecutor mentioned the circumstances of the recovery of the property in his recitation of the events after the hearing (A84–85), and the suppression court stated that the seizure of the property was “justified and lawful” (A100–111), this was certainly not an “express” endorsement of any legal theory. Instead, it was a ruling on the claim that defendant litigated at the hearing: whether the evidence should be suppressed as the fruit of the poisonous tree based on the alleged illegality of the initial stop (id.). Since there was no “express” determination of this issue, it is unpreserved for this Court’s review. See CPL § 470.05(2); see also People v Turriago, 90 NY2d 77, 83-84 (1997); People v Martin, 50 NY2d 1029, 1031 (1980); People v Tutt, 38 NY2d 1011, 1011 (1976); People v Wright, 34 NY2d 776 (1974). In a meager attempt to establish preservation, Nonni relies on his own nondescript pro se post-hearing motions—adopted by counsel—to support his claim that he contested the protective pocket search. The general averments set out in those papers, however, did not “adequately alert the [suppression] judge to defendant’s present arguments so as to preserve those issues for [this Court’s] review.” People v Ford, 69 NY2d 775, 776 (1987); see People v Gray, 86 NY2d 10, 20 (1995) (“a general motion fails at this task”); Rivera, 73 NY2d at 942 (“general objection” to violation of constitutional rights insufficient to preserve the claim); see also People v Dien, 77 NY2d 885, 885-886 (1991) (same). In the context of a suppression motion, defendant must raise the “particular issue within the context of his initial motion to suppress” in order to preserve if for appellate review. People v Gonzalez, 55 NY2d 887, 887 (1982) (emphasis added); see People v Vidal, 26 NY2d 249, 254 (1970) (defendant must make a “specific objection directing the court, and the adversary, to the particular infirmity of 26 the evidence) (emphasis added). Otherwise, by “neglect[ing] to raise a particular legal argument before the court of first instance, [defendant] effectively deprives the People of a fair opportunity to present their proof on that issue, and, as a consequence, the resulting record is inadequate to permit the appellate court to make an intelligent determination on the merits.” Martin, 50 NY2d at 1031 (emphasis added). Here, in the last sentence of the second to last paragraph of his eight-page pro se post-hearing motion, Nonni perfunctorily stated that the police “search[ed] defendant in full violation of the above mentioned Federal and State laws” (A72). Nonni attempts to trump up this empty assertion by making reference to a completely unrelated quotation of law found in his post-hearing reply papers (see Nonni brief at 9– 10; A90). Indeed, Nonni was not making an independent point regarding the lawfulness of the search; he was merely fully quoting a decision of this Court11 for the limited purpose of showing that he did not bear the ultimate burden of proof. To characterize this purely refutational legal quotation on the issue of burden as an affirmative argument regarding the scope of a pat-down frisk is, quite frankly, farcical. The reality is, that at no time before the suppression court did defendant argue his theory that the money found in the envelopes should have been suppressed because its seizure fell outside the scope of the limited protective search authorized by Terry v Ohio, 392 US 1 (1968). Cf. Gonzalez, 55 NY2d at 887 (motion made on the grounds that the police “lack[ed] probable cause to sustain his arrest,” was insufficient to capture the defendant’s claim that “the weapon should have been suppressed because his arrest was effected in his home without a warrant and in the absence of exigent 11 Nonni failed to indicate which case he was citing in his pro se reply (A90). 27 circumstances”); People v Patterson, 53 NY2d 829, 829 (1981); People v Dancey, 57 NY2d 1033, 1034 (1982). Because defendant never specifically raised this issue, the burden never shifted to the People to offer evidence to the contrary. See People v Shabazz, 99 NY2d 634, 636 (2003). Indeed, the People did not set forth argument on this issue in their submission (A85–A86). Had Nonni properly raised the issue, “an adjournment or other corrective action designed to eliminate any unfairness might have been available as a cure.” People v Rivera, 53 NY2d 1005, 1006 (1981). Instead, no proof was adduced during the hearing as to whether the envelopes were closed or open, sticking out of the top of Nonni’s pocket or concealed beneath the brim, or originally felt to be a weapon during the frisk. Accordingly, Nonni’s failure to adequately alert the suppression court to the specific issue he now raises renders his claim unpreserved for this court’s review. See People v Patterson, 39 NY2d 288, 294–295 (1976). In a last-ditch effort to establish preservation, Nonni challenges basic preservation law, and asks this Court to overturn statutory provisions that serve to protect the integrity of criminal process merely because the Appellate Division “reached” this issue (Nonni brief at 44). But the Appellate Division did not “reach” the issue in the way that Nonni contends. The Appellate Division was already precluded from reaching this unpreserved issue as a matter of law by operation of CPL § 470.05(2).12 Accordingly, at that point—absent reversible error on any of the preserved questions of law—the Appellate Division’s review of the underlying 12 Nonni does not claim that the Appellate Division exercised its interest of justice jurisdiction—pursuant to CPL §470.15(6)(a)—to reach the merits of his claim. 28 proceedings should have terminated and Nonni’s conviction should have been affirmed. Any comments or conclusions pertaining to the unreviewable issue he now raises, then, were “superfluous to the decision and [are dictum.” Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 NYUL Rev 1249, 1256 (2006). Indeed, it is dictum because “the court's judgment, and the reasoning which supports it, would remain unchanged, regardless of the proposition in question,” it is “essentially a comment on how the court would decide some other, different case, and has no effect on its decision of the case before it.” Id. Accordingly, the Appellate Division’s dicta could not have “adversely affected the party who was appellant in the intermediate appellate court,” CPL § 470.35(2)(b), and any review would be inappropriate. Even if the court did “reach” the issue in any substantive sense, it did not turn the unpreserved issue into a question of law that can be reviewed by this Court. Contrary to Nonni’s assertion that “poorly-reasoned precedent” is responsible for his inability to obtain review, CPL § 470.05(2) specifically bars review of his claim. CPL § 470.05(2)—which, unlike CPL § 470.35, governs the determination of all appeals— states that a reviewable “question of law” is only presented “when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction….” Indeed, this statutory language “sets forth the procedural prerequisite for invoking appellate attention to errors of law…known as ‘preservation of an error’…[and] preservation is necessary to establish an error as ‘a question of law.’” Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, CPL § 470.05 (emphasis added). Nonni cannot sidestep this mandate; “unless the error became a 29 question of law, it cannot be considered by the Court of Appeals…[because] jurisdiction of the Court of Appeals is constitutionally limited to considering questions of law.” Id., citing NY Const Art VI §3. Without preservation in the nisi prius court, then, the alleged “question of law” is outside the scope of this Court’s limited constitutional grant of jurisdiction. Patterson, 39 NY2d at 294–295; . Even if it were preserved, Nonni’s argument that his detention did not permit the internal search of his pocket is a red herring. Indeed, the suppression court did not rule one way or the other as to whether Nonni was merely detained at the time he was stopped and handcuffed on Campbell Drive, or actually under formal arrest (A110–111).13 Indeed, based on Officer Delaney’s testimony at the suppression hearing (A183), the People argued that “[Nonni] was immediately arrested for resisting arrest and assaulting a peace officer” (A85, 261).14 Assuming for the moment that the court would have agreed that Nonni was immediately placed under arrest before the search occurred, the officers, one of whom had just been cut by a concealed weapon, were justified in searching defendant’s person and pursuant to a search incident to a lawful arrest. 13 The suppression court did not state the theory it used to determine that the search of Nonni’s pocket was “justified and lawful” (A111). 14 In his recitation of the facts (Nonni brief at 9), and again in his argument (Nonni brief at 43), Nonni misstates the People’s position with respect to probable cause. The People did not argue that probable cause only arose after the search and identification (id.). Instead, the People argued that Nonni was “immediately arrested for resisting arrest and assaulting a peace officer”, (A84) and that the subsequent identification of “each defendant…provided probable cause to arrest them for burglary” (A86) (emphasis added to the omitted portion). 30 Indeed, “determinative of [a] search’s validity [are] the facts that police reasonably believe[] that defendant [is] in possession of a weapon…that the search [is] conducted virtually contemporaneously with the arrest…and that the [item searched is] large enough to contain a weapon.” People v Gokey, 60 NY2d 309, 312 (1983). Importantly, the crime justifying “arrest may itself provide the requisite exigency.” People v Jimenez, 22 NY3d 717, 722 (2014). Here, Nonni was arrested for a violent crime: assaulting a police officer (A183). And, like in People v Smith, 59 NY2d 454 (1983) (defendant wearing a bulletproof vest) and People v Johnson, 86 AD2d 165, 166 (1st Dept 1982) (defendant reported as a “man with a gun”), there were other, additional indicia that Nonni was armed with a weapon. Indeed, while tackling him to the ground, an officer was cut by a serrated knife protruding from Nonni’s backpack (A178–179). Additionally, the search of Nonni was conducted immediately upon apprehending him and gaining control of his person. Finally, at the time Nonni was detained, the officers may not yet have known whether they had been cut by the knife that was protruding through a rip in Nonni’s backpack, or some other sharp, concealed object. Any of the envelopes in defendant’s pocket could have concealed a razor blade, shiv, or flat knife. Thus, given all the facts leading up to, and surrounding the search, the envelopes and their contents were properly seized pursuant to a search incident to a lawful arrest. Assuming that the envelopes were recovered prior to arrest, Nonni argues that the police are limited to conducting a “frisk” and are never justified in executing a “search” during a temporary detention (Nonni brief at 39). But this court has stated that “the protective pat-down exception to the warrant requirement authorizes a 31 limited search of lawfully detained suspects to determine whether a weapon is present.” Diaz, 81 NY2d at 109 (emphasis added). Indeed, the only clear limit on a protective pat-down search is that “the scope of the intrusion authorized…may not exceed what is necessary to ascertain[] the presence of weapons.” Id. Accordingly, the interior pocket search performed in Diaz was unlawful only because the officer already knew that defendant’s pocket did not contain a weapon. Id. at 108, 109 (where the officer “grabbed defendant’s pocket…felt no weapon but did detect what ‘appeared to be a bunch of vials’”). Here, by contrast, the officers did not know that Nonni’s pocket did not contain a weapon. Accordingly, the search of Nonni’s pocket and envelopes was lawful.15 D. Even if the envelopes full of money should have been suppressed, the suppression court’s failure to do so was merely harmless error. Even if the money found in Nonni’s envelopes should have been suppressed, its entry into evidence was harmless since it was cumulative in light of the overwhelming evidence provided from other sources. See People v Crimmins, 36 NY2d 230, 243 (1975). Robert Ederle, the victim of the robbery, provided a full account of the crime, including defendants’ taking of $3000 hidden in a metal soda canister (A580–582, 584–586, 598–602, 649, 662, 688, 704; People’s 15: Photograph of storage room; People’s 16: Photograph of soda canister). Mr. Ederle showed Nonni where the 15 For all the reasons stated, these were not “winning arguments” and raising them at the suppression hearing would have had “little or no chance of success” People v Flowers, 28 NY3d 536, 541 (2016). Therefore, Nonni’s trial attorney was not ineffective for failing to raise them. Id. Moreover, Nonni’s claim of ineffective assistance of counsel is unreviewable on direct appeal because it involves matters outside the record concerning counsel’s strategy. See Nonni, 135 AD3d at 58; see also People v Evans, 15 NY3d 571, 574 (2011). 32 money was hidden and Nonni entered that storage room and removed the three envelopes containing the cash from the soda canister (A586, 600, 602, 662). Though Mr. Ederle admitted on cross-examination that he did not actually see Nonni with the $3,000 (A697), he heard Nonni speak to someone on the telephone, saying, “We got it, that’s all there is” (A586–587). Nonni’s contention that the jury found Mr. Ederle incredible, and that the case turned on the admissibility of the robbery’s proceeds is without merit (Nonni brief at 48–49). Nonni ignores the crucial and convincing role that the cellphone records played in corroborating Mr. Ederle’s testimony. At trial, the People’s theory was that Pamela Williams (a.k.a. Samantha Sanchez), on January 18, 2008, went to the club and made an appointment for her “husband” to see the party room as a ruse to give defendants later access to the club (A1098). The People also posited that Ms. Sanchez and defendants were conspiring with Anthony Devita, who came to the bar on January 20, 2008, during one of the football pools, to do reconnaissance (A1099– 1100). To show this connection, the People introduced phone records showing that on January 18, 2008, at approximately 8:00 p.m., Parker received a phone call from the telephone registered to Anthony Devita just after Samantha Sanchez had finished making the Monday morning appointment (A1100–1101). The phone records also showed that a call was placed from Anthony Devita’s cell phone to Parker’s cell phone on Sunday night, January 20, 2008 at approximately 9:10 p.m., which corresponded with the time Mr. Devita was seen inside stepping out of the club for ten minutes. Finally, the records showed that during the robbery on January 21, 2008, a call was placed from Nonni’s cell phone to Anthony Devita’s cell phone at 33 approximately 9:35 a.m. (A1100). The timing of this final call between Nonni and Anthony Devita corroborated Mr. Ederle’s accounts of a phone call being placed during the robbery where Nonni admitted to taking the money that Mr. Ederle had shown him. Moreover, there is no reasonable probability that the error contributed to the verdict. See Crimmins, 36 NY2d at 243. Nonni reasons that the jury’s acquittal on the charge of Robbery in the First Degree was proof that the jury did not find Mr. Ederle credible (Nonni brief at 48-49). He concludes, then, that without the money in evidence, the jury would have been left only with Mr. Ederle’s incredible account of Nonni taking the money. If, however, the jury had been only relying on the recovered evidence to make its determinations of guilt, then the verdict should have included a conviction for Robbery in the First Degree. Indeed, the knives, like the money, were recovered by the police and put into evidence at trial. Despite this evidence, the jury did not convict Nonni of Robbery in the First Degree. Thus, contrary to Nonni’s suggestion, it appears that the jury’s verdict did not turn on the recovered evidence. Accordingly, there is no reasonable probability that the admission of the money recovered from Nonni contributed to the verdict. POINT II The Handling Of Two Jury Notes Did Not Constitute A Mode of Proceedings Error; Alternatively, This Court Should Remit To The Trial Court For A Reconstruction Hearing. In this case, the jury sent out three notes before the lunch recess on the final day of deliberations: jury note number two at 11:16 AM (Court’s Exhibit 8), number 34 three at 11:30 AM (Court’s Exhibit 9), and number four at 11:55 PM (Court’s Exhibit 10). Jury note number two requested the definitions of Robbery and Burglary, the Westchester Country Club flyer with card attached, and readbacks of “the first sighting of defendants exiting the robbery sight…[and] where the defendants were caught with regards to distance” (Court Exhibit 8). Jury note number three requested “testimony with regards to the type of surfaces needed to get an accurate print…Jajokian (fingerprinting expert)” (Court’s Exhibit No. 9). Jury note number four requested “testimony of Mr. and Mrs. Ederle with regard to who can rent the party room” (Court’s Exhibit 10). The court marked all the notes as court exhibits, and then resumed proceedings on the record (A1172–1173). Outside the presence of the jury, the Court asked counsels to confirm that they had agreed upon the sections of testimony which could be read back to the jury in response to note number two (A1177). Counsels then discussed with the Court the two sections of testimony that the parties could not agree upon (A1173–1177). Afterwards, the court returned the jury to the courtroom and stated, “I have three notes from you and I just want to make sure that all of us remember what was in the notes so I’m going to review them, I’ll read them back to you so that everyone will have a clear memory of what you’ve originally requested” (A1178). The court then read jury note number two into the record and stated, “[s]o let’s deal with that note first and we’ll leave the other two for after lunch. One at a time” (id.). The court then explained the requested legal instructions and the court reporter read the requested and agreed-upon testimony (A1178–1186). 35 Afterwards, the court stated, “[w]ell, that is the readback of the testimony that you requested on your first note. The additional testimony that you requested in the other two notes, we’ll respond to that after lunch” (A1187). The court explained to the jury that they could deliberate over lunch if they desired, and “a lunch recess was taken from 1:30 p.m. until 2:30 p.m.” (id.). At 2:31 PM, the jury sent out jury note number five announcing that a verdict had been reached (Court’s Exhibit 11). The court then took the verdict and polled the jury (A1188–1193). A. The jury notes does not fall within the scope of O’Rama because the jury implicitly rescinded its requests for factual information by coming to a verdict. After fulfilling the requests in jury note two, the court told the jury that he would address the two remaining notes after the lunch-hour (A1187). Instead of waiting for the forthcoming information, the jury announced that it had reached a verdict, thereby, implicitly rescinding jury notes three and four. See People v Fuentes, 246 AD2d 474, 475 (1st Dept 1998) (jury implicitly indicated it needed no further instruction by announcing a verdict); see also People v Quintana, 262 AD2d 101, 101 (1st Dept 1999) (“[t]hat a verdict was reached carried the implication that any other problem had been resolved”); People v Albanese, 45 AD3d 691, 692 (2d Dept 2007) (“[t]he fact that a verdict was reached implied that the jury resolved the issue on its own”); People v Cornodo, 60 AD3d 450, 451 (1st Dept 2009) (“[b]y promptly reaching a verdict without any further inquiry, the jury implicitly indicated that it no longer needed the information requested”). With the readback requests withdrawn, there was no longer “a request” within the meaning of CPL § 310.30. Without an outstanding 36 request by the jury, the obligations of CPL § 310.30 did not apply and the mandates of People v O’Rama, 78 NY2d 270 (1991) were irrelevant. At that point, defendants needed to object if they wanted the court to take any additional action before accepting the verdict. Defendants’ arguments, then, are otherwise unpreserved and must therefore be denied. To hold that a jury verdict does not rescind certain outstanding requests, “would necessarily require an assumption that … the jurors had inferred that the court was not giving favorable consideration to their request.” People v Agosto, 73 NY2d 963, 966 (1989).16 Of course, there are circumstances in which some jury notes cannot be implicitly rescinded by a subsequent announcement of a verdict. Indeed, implicit withdrawal for all notes in all circumstances would risk swallowing the O’Rama rule. Thus, it is only appropriate to find implicit withdrawal where (1) the request is one which the jury can competently resolve for itself (2) there is no unreasonable lapse of time between the request and the announcement of a verdict; and (3) the court’s remarks or prior procedure indicate a “continued willingness to abide by the wishes of the jurors.” People v Carrero, 140 AD2d 533, 533 (2d Dept 1988). Here, the factual nature of the notes, the reasonable lapse of time between when the notes were sent and the announcement of a verdict, and the court’s remarks and handling of earlier notes, all indicate that the jury properly withdrew its remaining requests in accordance with the Carrero factors. 16 Although Agosto predates O’Rama and concerns a different type of jury note, it remains instructive. Indeed, it is one of the only times that this Court has examined the way in which the process of answering jury notes is affected by the jury’s indication that it has reached a verdict. 37 First, the jury’s request for readbacks of certain testimony represented a factual issue that the jury could competently resolve for itself. See People v Barnes, 139 AD3d 1371, 1372–73 (4th Dept 2016) (requesting readback of testimony about surveillance); see also Albanese, 45 AD3d at 692 (requesting readback of testimony); People v Sanders, 227 AD2d 506, 506 (2d Dept 1996) (requesting transcripts of testimony), Carrero, 140 AD2d at 533 (requesting readbacks of detective and defendant’s testimony); Chandler, 110 AD2d at 971(requesting readback of testimony); cf People v Hall, 101 AD2d 956, 957 (3d Dept 1984) (“jury is entitled to the guidance of the court and may not be relegated to its own unfettered course of procedure” where the jury note requested clarification on burden of proof). Indeed, it is apparent that the jury sought to resolve a factual issue, and did so resolve, having rendered a verdict after hearing the earlier readbacks of testimony concerning where the defendants were first seen and where they were subsequently apprehended. See People v Elie, 150 AD2d 719, 720 (2d Dept 1989). Second, the time between when the jury sent notes two, three, and four, and when the jury announced a verdict had been reached, did not amount to an undue delay. In Carrero, the jury sent a note requesting the testimony of a detective and the defendant. After the detective’s testimony was read, but before the defendant’s could be read, the court recessed for twenty minutes to give the stenographer a rest, after which the jury announced it had reached a verdict. The court held that the twenty minute delay was not unreasonable in light of the court’s remarks to the jurors prior to the recess, and that it was apparent the jury resolved the factual questions on its own. In a similar situation, the Appellate Division, Third Department in People v 38 Chandler, 110 AD2d 970 (3d Dept 1985), held that a fifty minute delay was not unreasonable. By contrast, in Hall, the Third Department held that a two hour delay in responding to a requested clarification of the People’s burden of proof was unreasonable. Hall, 101 AD2d 956. The court reasoned that the extensive delay left the jury alone to form its own conclusions without a proper understanding of the charge. Id. at 957. Here, although two hours passed between the sending of jury notes two, three, and four and the announcement of a verdict, that time was split between providing the jury with the information requested in note two and the lunch recess. Thus, only one hour elapsed where the jury was waiting for the information requested in notes three and four. Moreover, the jury was aware during that time that their request was not being ignored; rather, it was merely a lunch break. Third, the court’s prior procedure and “remarks to the jurors prior to the recess indicate[d] a continued willingness to abide by the wishes of the jurors.” Carrero, 140 AD2d at 533. In Agosto, each time the jury sent out a note the trial judge took approximately 30 minutes to respond. Agosto, 73 NY2d at 966. Accordingly, when the trial judge took a verdict without answering or making reference to the last note sent by the jury, it was “highly unlikely that the [] jurors could have attached any significance to the 20-minute delay.” Id. The jury’s previous experience with such communications, then, ensured that they were not “coerced or pressured into retuning a guilty verdict because of the court’s failure to respond to the note.” Id. Here, the court had promptly sent the exhibits requested in note number one to the jury, and had started responding to note number two within an hour of its receipt. As for the court’s remarks, it explicitly told the jury from the very beginning 39 that it was going to address each of the notes that it had received (A1178). After addressing one of the notes, the court stated to the jury that it would continue with the readbacks requested in the remaining notes after the lunch hour (A1187). In rendering a decision shortly thereafter, then, the jury was unequivocally stating that it did not want the court’s promised response because it no longer had any requests. Ultimately, then, the court did not err in accepting the jury’s verdict after their implicit declaration that they were withdrawing the requests made in jury notes three and four. B. Alternatively, there was no mode of proceedings error because counsel had all the notice necessary to maximize participation in the court’s decision to accept the verdict. Counsel, having knowledge of the existence and, at least, the general contents of two outstanding notes, was in a position to object to the court’s decision to take the jury’s verdict. Having failed to object, defendants’ arguments regarding the outstanding notes are unpreserved and meritless. Indeed, this Court has “generally refused to classify alleged errors as mode of proceedings errors in the jury note context when the record demonstrates that counsel had all the knowledge required to object, and a timely objection would have allowed the court to ‘easily cure the claimed error’” People v Mack, 27 NY3d 534, 542 (2016), citing People v Ippolito, 20 NY3d, 615, 625 (2013). Indeed, this Court has recognized a distinct difference between errors that prevent counsel from “participating meaningfully in [a] critical stage of trial,” and those which do not. Mack, 27 NY3d at 544, citing O’Rama, 78 NY2d at 279. 40 Giving less than verbatim notice of a jury note does not prevent counsel from meaningfully participating in all situations, nor does a reading of this Court’s early cases discussing the matter suggest a different result. Indeed, in O’Rama, the trial court actually “withheld from counsel the contents of a juror’s note,” which “entirely prevent[ed] defense counsel from participating meaningfully.” See People v Starling, 85 NY2d 509, 516 (1995), citing O’Rama, 78 NY2d at 279. It was “in this context” that “meaningful notice” meant “notice of the actual specific content of the jurors’ request.” O’Rama, 78 NY2d at 277 (emphasis added). Indeed, Judge Titone, the author of the O’Rama opinion, dissenting in People v Lykes, 81 NY2d 767, 770 (1993), stated that “meaningful notice” only “implies such notification as will afford counsel the opportunity to ‘participate effectively’ and to ‘adequately protect the defendant's rights.’” Consistent with this interpretation, this Court, in People v Ramirez, 15 NY3d 824 (2010), held that no mode of proceedings error had been committed where the trial court read the contents of the note “almost ‘verbatim’” into the record. See People’s 500.11 submission, People v. Timoteo Ramirez, 2010 WL 6083740 (NY), at 10. Legally sufficient notice, then, depends on the context. Here, the information given to counsel provided the required notice. The trial court was in the process of properly responding to a triumvirate of jury notes when the jury announced its verdict. At that time, counsel knew the jury notes existed because the court had explicitly mentioned that the notes had been received (A1178). More importantly, counsel knew, at the very least, that the notes contained requests for testimony because the court stated, on the record, its intent to provide “the additional testimony that [the jury] requested in the other two notes…after lunch” 41 (A1187) (emphasis added). Counsel also knew that the jury had reached a verdict before the court was able to provide the additional testimony, and that the court planned to accept the verdict without providing the readbacks (A1187–1188). Given all the information in counsels’ possession, it was impossible they were unaware of the unanswered notes requesting readbacks of trial testimony. As Mack requires, then, counsel had the quantum of notice necessary “to enable him to object to the trial court’s procedure if he considered that approach to be prejudicial.” Mack, 27 NY3d at 543. Because the court informed counsel of the general contents of the notes and did not hide their existence, or decline to provide counsel with their specific contents, counsel “certainly had an opportunity to ask [the court] to alter course.” Alcide, 21 NY3d at 694. Indeed, upon the jury’s return to the courtroom, counsel could have requested that the court finish the readbacks or poll the jurors to determine “if they still desired a response before the verdict was announced.” Mack, 27 NY3d at 543. Counsels’ silence a mere hour after the notes were to be addressed can only indicate that they “decided that the jurors were more likely to acquit defendant if they were not given the chance to deliberate further.” Mack, 27 NY3d at 543-44. Should this Court determine that the notice provided was legally insufficient in light of established precedent, the holdings of those cases should be abrogated in favor of a more “flexible approach.” People v Walston, 23 NY3d 986, 992 (2014) (Smith, J., concurring). This Court has already begun the slow unwinding of O’Rama’s stringent analysis of CPL § 310.30’s requirements. See Ramirez, 15 NY3d 824; People v Williams, 21 NY3d 932 (2013); People v Alcide, 21 NY3d 687 (2013); People v Nealon, 26 42 NY3d 152, 162 (2015); Mack, 27 NY3d 534. But this Court has not been presented with an appropriate vehicle for reviewing the core of O’Rama’s overbroad holding. Indeed, in Walston, the issue was never briefed or argued, and in People v Silva, 24 NY3d 294, 302 (2014) (Smith, J., dissenting), there was no indication that the “defendants ever saw or knew about the jury notes that went unanswered.” Critically, the attorneys here were told of the existence of each note and their general contents, which makes this a “proper case” for reconsidering O’Rama’s application in the twilight between less than verbatim notice and no notice at all. See Silva, 24 NY3d at 302. To be clear, then, respondent is not suggesting that failure to comply with the notice requirement of CPL § 310.30 is never a mode of proceedings error. But, instead, that failure to comply should constitute a mode of proceedings error in only two situations: (1) where the court refuses counsel’s request to see the verbatim contents of the note, and (2) where the court fails to apprise counsel of the notes existence—depriving counsel of the opportunity to request verbatim notice. Indeed, in these situations counsel is either unable to object because he is unaware that there is anything objectionable, or, in requesting a verbatim account of the note, affirmatively stating that he cannot participate meaningfully without knowing the precise contents of the note. In those situations, “the court’s error…ha[s] the effect of entirely preventing defense counsel from participating meaningfully…and thus represent[s] a significant departure from “’the organization of the court or the mode of proceedings prescribed by law.’” O’Rama, 78 NY2d at 279 (emphasis added). 43 Here, by contrast, the “error” was not a significant departure from the mode of proceedings because counsel was not “entirely” prevented from participating meaningfully. In People v Allen, 24 NY3d 441, 449 (2014), this Court declined to find a mode of proceedings error where “any uncertainty [regarding the duplicity of a charge] could have been remedied with an objection during opening statements or the witness testimony, or to the jury charge.” Id. (emphasis added). Here, if counsel was uncertain that he had enough information to participate in the court’s decision to take the verdict, he could have objected at that time. Counsel also had multiple opportunities to request to see the precise contents of the notes. Indeed, “if counsel had simply said ‘may I see the note, Your Honor?,’ the judge probably would have handed it to him, and the problem we now face would not exist.” Walston, 23 NY3d at 992.17 Affording defendant relief here, then, would unquestionably serve to pervert CPL § 310.30 by “incentivizing a distinct act that diminishes the preservation rule.” Mack, 27 NY3d at 543. Indeed, counsel—aware that a note exists but not necessarily aware of its exact contents—gains an indispensable advantage by simply allowing the court to take the jury’s verdict. If the jury acquits the defendant, “counsel will have secured the desired trial outcome,” and if the jury convicts, counsel’s silence “will have created an appellate issue requiring automatic reversal and a new trial.” Mack, 27 NY3d at 543. Given that there is no trade-off for engaging in this self-seeking behavior, “it would be unwise for counsel to object and seek correction of the error.” 17 The fact that objecting to the “error” would immediately result in its remedy, shows how trivial the error actually is. 44 Id., citing Nealon, 26 NY3d at 162; see also Walston, 23 NY3d at 992 (“only a foolish defense lawyer will ask the judge to correct the error”). Rules of criminal procedure should never be construed so as to encourage deliberate sandbagging. Indeed, A defendant cannot be permitted to sit idly by while error is committed, thereby allowing 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 frustrated by delay and waste of time and resources invited by a defendant. Patterson, 39 NY2d at 295. Accordingly, in this unique situation, this Court should require counsel to object in order to dispense with this flagrant gamesmanship. Finally, failing to provide, automatically, verbatim notice of the contents of a note is not so fundamental a flaw as to require designation as a mode of proceedings error. Indeed, the trial court’s procedure was “conducted in accordance with the mode of procedure mandated by…statute.” Patterson, 39 NY2d at 295–296. Notably, CPL § 310.30, on its face, simply requires “notice.” The statute says nothing in regards to the kind of notice that the court must provide, much less that it be “meaningful,” or, even stricter, “verbatim.” Quite unlike Patterson, 39 NY2d at 296 (charge in direct contravention of CPL § 70.20), People v McLucas, 15 NY2d 167 (1965) (trial court comment in direct contravention of fifth amendment), People v Coons, 75 NY2d 796 (1990) (juror’s released in explicit violation of CPL § 310.30), or People v Miles, 298 NY 360 (1942) (addition to indictment in direct conflict with code of criminal procedure) —where the trial court’s conduct directly conflicted with statute—nothing the trial 45 court did, here, contravened the express text of the criminal procedure law or the constitution. Indeed, this Court, in O’Rama did not even consider the statute’s plain construction when attempting to determine CPL § 310.30’s requirements. Instead, this Court borrowed the “meaningful” language from People v Gonzalez, 293 NY 259 (1944) and People v Malloy, 55 NY2d 296 (1982). Those cases, however, dealt only with CPL § 310.30’s second precept, that the court must provide a “response” to the jury’s request, a requirement that this Court ultimately declined to place within the ambit of the mode of proceedings doctrine. See Mack, 27 NY3d 534. The concept of “verbatim notice,” then, is nothing more than a “judicially- devised concept,” People v Hanley, 20 NY3d 601, 606 (2013), aimed at “ensur[ing] that counsel has the opportunity to be heard before the response is given. O’Rama, 78 NY2d at 277 (emphasis original). It is not “jurisdictional in nature and does not implicate any fundamental constitutional concerns that strike at the core of the criminal adjudicatory process.” Hanley, 20 NY3d at 606. Accordingly, the error does not “go to the essential validity of the process” and is not “so fundamental that the entire trial is irreparably tainted.” People v Kelly, 5 NY3d 116, 119–120 (2005). Indeed, once counsel knows that a note exists, he has the notice explicitly required by CPL § 310.30. Ultimately, then, defendants’ unpreserved claim must be denied. 46 C. The availability of procedures which do not constitute mode of proceedings errors requires that, in certain circumstances, a reconstruction hearing be ordered to make the record complete for review and avoid unjustified reversals. In the alternative, the People would request that, rather than reverse and order a new trial, this Court remand for further proceedings and order a reconstruction hearing and resettlement of the record in order to determine whether defense counsels were given meaningful notice of jury notes three and four. It is well settled that “not every departure from the O’Rama procedure…constitutes a mode of proceedings error.” Nealon, 26 NY3d at 163. Instead, when assessing judicial compliance, the “touchstone is whether the way in which the judge chooses to handle a jury inquiry affords meaningful notice to counsel.” Id.; see also O’Rama, 78 NY2d 278 (mandatory adherence to “a rigid set of procedures” is not required). Accordingly, the trial judge need not necessarily read the juror’s note aloud in open court, so long as the trial judge otherwise “make[s] a verbatim account of the juror’s communication available to the defendant’s attorney.” Alcide, 21 NY3d at 693 (emphasis added). Indeed, CPL § 310.30 does not mandate the marking and reading of notes into the record, and thus, failure to do so is not a mode of proceedings error. Absent an objection,18 off-the-record procedures are otherwise compliant with the mandates of CPL § 310.30 and O’Rama, yet this Court has previously declined to recognize the presumption of regularity of judicial proceedings in the context of off-the-record handling of jury notes. See Silva, 24 NY3d at 300. 18 While the People recognize that such procedures are not necessarily errorless, they, at a minimum, require defendant to preserve the issue by objection as they are not within the narrow class of mode of proceedings errors. 47 Indeed, this Court has refused to assume that meaningful notice of an outstanding jury note was provided to defense counsel during an off-the-record conference absent record evidence to the contrary. See Walston, 23 NY3d at 990; see also People v Tabb, 13 NY3d 852, 852 (2009). The requirement imposed by Walston and Silva has essentially gutted the holdings of Kisoon and Alcide. Indeed, these seemingly conflicting legal precepts allow a reviewing court to reverse and order a new trial where counsel did not object to the trial court’s method of providing off-the-record notice, the procedure itself did not constitute a recognized mode of proceedings error, and no provision of CPL § 310.30 was violated. Indeed, a reviewing court is required to vacate a defendant’s conviction, not because the court is certain that any right of the defendant has been violated, but simply because the record does not affirmatively reflect the preservation of defendant’s rights. Such reversals, based purely on speculation, “subject [the People] to a more than trivial disadvantage,” and the People should have “the opportunity to remedy that disadvantage.” People v Parris, 4 NY3d 41, 48 (2004). The appropriate remedy to prevent an inequitable result, then, is to order a reconstruction hearing. This approach would fairly dispense with presumptions or assumptions in favor of either party, and, instead, would give the reviewing court the information required to determine whether a mode of proceedings error had, in fact, occurred. Indeed, reconstruction hearings are frequently appropriate “where it is clear that a proceeding took place that was not transcribed, the trial court refused to record the proceedings, the minutes have been lost, or there is significant ambiguity,” People v Velasquez, 1 NY3d 44, 49 (2003) (collecting cases), and this Court has ordered and 48 relied on such hearings on various occasions. See Parris, 4 NY3d at 47-48 (collecting cases); see also People v Cruz, 14 NY3d 814 (2010) (relying on the results of reconstruction in dealing with a jury note issue). Various intermediate courts have agreed that, without the benefit of a full and complete record, vacatur of a conviction based on the mandates of O’Rama is inappropriate. In circumstances consistent with one or more of the Velasquez factors, these courts have held appellate proceedings in abeyance and remanded to the Supreme Court for additional proceedings. See People v Martinez, 186 AD2d 14, 15 (1st Dept 1992), revd on other grounds 82 N.Y.2d 436 (1993); see also People v Mitchell, 129 AD3d 404, 404 (1st Dept 2015), reh Sup Ct, New York County, August 2015, Carro, J., indictment No. 924/13, affd 136 AD3d 401 (1st Dept 2016), lv denied 27 NY3d 1003 (2016).; People v Russo, 283 AD2d 910 (4th Dept 2001), affd 4 AD3d 777 (2004), lv denied 2 NY3d 806 (2004); People v Cruz, 57 AD3d 1453 (4th Dept 2008), revd on other grounds 14 NY3d 814 (2010); People v Kahley, 105 AD3d 1322, 1325 (4th Dept 2013); People v Williams, 113 AD3d 1116, 1116–17 (4th Dept 2014), affd 125 AD3d 1300 (4th Dept 2015), lv denied 26 NY3d 937 (2015); People v Newton, 147 AD3d 1463 (4th Dept 2017) (where the original record was unclear, it was revealed that the Court complied with the dictates of O’Rama after the record was expanded by way of a CPL 330 motion); People v Meyers, 148 AD3d 1057, 1057 (2d Dept 2017) (ordering a hearing “to assess all the circumstances regarding [a jury note], including when and how it came to the court’s attention and when it was marked as a court exhibit and placed into the court file). 49 Indeed, rather than resolve a jury note issue based on “inference and conjecture,” the court in Kahley remitted the matter to County Court for a reconstruction hearing. Kahley, 105 AD3d at 1324–25. Likewise, in People v Mitchell, the Appellate Division, First Department remanded to Supreme Court for a reconstruction hearing where “[t]he jury note in question appeared in the court file but the transcript contain[ed] no reference to it.” Mitchell, 129 AD3d at 404. “After the reconstruction hearing, the court reporter was contacted, and she discovered that she had not transcribed two pages of trial minutes, which related to the note in question…[and] revealed that the court complied with the procedures required by O’Rama, including informing the parties of the note.” Mitchell, 136 AD3d at 401. Notably, in Cruz, the Appellate Division, Fourth Department ordered a reconstruction hearing to determine “whether there was a jury note and, if so, what action was taken with regard to the note.” Cruz, 14 NY3d at 814–16. Following the results of the reconstruction hearing, the Fourth Department affirmed defendant’s conviction and defendant then appealed to this Court. Rather than precluding the findings from the reconstruction hearing and reversing on the original record, this Court’s reversal was principally based on the evidence provided by the trial judge at the reconstruction hearing. Id. (“defendant met his burden of rebutting the presumption of regularity by substantial evidence [and] that evidence includes the trial judge’s statement at the reconstruction hearing”). Here, a reconstruction hearing would be justified to clarify any ambiguity in the record regarding the court’s handling of jury notes three and four, particularly in light of the court’s earlier handling of jury notes one, two, and five in untranscribed 50 proceedings. Indeed, jury note number one was never read into the record, and there is no indication in the record when or how it was made available to each defense counsel (A1169). But the record indicates that jury note number one was marked court’s exhibit VII, and defense counsels affirmatively acknowledged, on the record, that they had “seen” jury note number one (id.). Jury note number two was also marked as a court exhibit with no indication in the record as to when or how it was provided to each defense counsel (A1172). But it is evident that both counsels saw the note, because immediately after marking jury note number two as court’s exhibit VIII the court stated, “I believe that counsel have agreed upon the sections of testimony which can be read to the jury in response to [the] note” (A1173). It is impossible for counsels to have agreed on the specific sections of testimony to be readback, without having seen the note and discussed the appropriate responses off-the-record beforehand. Jury note number five, like notes one and two, was marked as a court exhibit with no indication in the record when or how it was made available to each defense counsel (A1188). But as with jury note number one, the record reflects defense counsels’ acknowledgement that they had “seen” jury note number five. Accordingly, in the case of each of these three notes, it is clear that an untranscribed proceeding took place, where counsel was given the notice required by O’Rama. Given the court’s demonstrated practice of off-the-record presentation of jury notes to the defense attorneys, it cannot be said that the court never read the notes at all. It is entirely possible both defense counsels had “seen” jury notes three and four just as they had “seen” jury notes one, two and five: at off-the-record proceedings 51 outside the presence of the jury. Indeed, it is highly likely, given the failure by both defense attorneys to object when the court referred to the contents of those notes (A1177). Indeed, it is evident from the parentheticals in the record that jury notes one, two, and five were only marked as court exhibits after they had been shown and discussed with defense counsels off the record. Given this course of conduct, the fact that jury note three and four were marked as court exhibits suggests that they too were shown to counsel. This off-the-record procedure, if applied to jury notes three and four as it was to jury notes number one and two, would not constitute a mode of proceedings error. If the court’s only error was failing to read the notes into the record, and failing to provide a meaningful response to the jury, it is well-settled that those errors are subject to the rule of preservation, and counsel did not object here. Mack, 27 NY3d at 541. Thus, where, as here, the notes in question appear in the court file, are marked as court exhibits, are mentioned on the record, and two previous notes were resolved entirely off-the-record, a reconstruction hearing, as opposed to reversal, would be appropriate to reconcile any ambiguity. Accordingly, “before this Court can consider defendant’s claim that Supreme Court’s failure to address the note pursuant to CPL § 310.30 constituted a mode of proceeding error, the record should be reconstructed as completely as possible to determine the facts surrounding the submission of the note and how the note was handled by the court.” Mitchell, 129 AD3d at 404. 52 CONCLUSION Defendants’ Convictions Should Be Affirmed, Or, Alternatively, A Reconstruction Hearing Should Be Ordered. Respectfully submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent NANCY D. KILLIAN RYAN P. MANSELL Assistant District Attorneys Of Counsel June 2, 2017 53 PRINTING SPECIFICATION STATEMENT PROCESSING SYSTEM: Microsoft Word TYPEFACE: Garamond POINT SIZE: 14 point in text, 12 point in footnotes WORD COUNT: 14, 698 words in the body of the brief