The People, Respondent,v.Lawrence Parker, Appellant.BriefN.Y.March 20, 2018To be argued by LORRAINE MADDALO (15 MINUTES) Court of Appeals THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LAWRENCE PARKER, BRIEF FOR DEFENDANT-APPELLANT APRIL 5, 2017 SEYMOUR W. JAMES, JR. LORRAINE MADDALO Attorneys for Defendant- Appellant The Legal Aid Society 199 Water Street New York, NY 1 0038 Tel: (212) 577-3343 Fax: (646) 616-4343 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT ..................................................................... l QUESTIONS PRESENTED ........................................................................... 3 SUMMARY OF ARGUMENT ...................................................................... 3 The Court Failed to Provide Meaningful Notice of Two Substantive Jury Notes, Requiring a Remand for a New Trial ............ 3 The Court Erred in Denying Appellant's Suppression Motion, Where His Presence Beside tbe Fleeing Co-Defendant Did Not Provide Reasonable Suspicion for the Police to Seize and Search Him ..................................................................................... 5 STATEMENT OF FACTS ............................................................................. 6 Introduction ........................................................................................... 6 The Pre-Trial Dunaway/Mapp/Wade Hearing ..................................... 9 The Trial .............................................................................................. 13 The Appellate Division Decision ....................................................... 22 ARGUMENT POINT! WHERE COUNSEL DID NOT RECEIVE MEANINGFUL NOTICE OF TWO SUBSTANTIVE JURY NOTES, THE COURT COMMITTED A MODE OF PROCEEDINGS ERROR; APPELLANT'S CONVICTION MUST BE VACATED. C.P.L. §310.30 .................. 24 POINT II THE COURT ERRED IN DENYING EXERCISING HIS RIGHT TO BE LEFT ALONE, AND HIS PRESENCE NEXT TO THE FLEEING CO- DEFENDANT DID NOT CREATE A REASONABLE SUSPICION THAT HE COMMITTED THE CHARGED CRIME ........................................................................... 28 CONCLUSION ............................................................................................. 36 ll TABLE OF AUTHORITIES Page(s) FEDERAL CASES Terry v. Ohio, 392 U.S. I (1968) .................................................................. 30 United States v. Ronder, 639 F.2d 931 (2d Cir. 1981) ................................. 25 Ybarra v. Illinois, 444 U.S. 85 .................................................................. 6, 33 STATE CASES People v. Cantor, 36 N.Y.2d 106 (1975) ...................................................... 31 People v. Carrasquillo, 54 N.Y (1981) ......................................................... 31 People v. Crimmins, 36 N.Y.2d 230 (1975) ................................................. 34 People v. DeBour, 40 N.Y.2d at 223 ..................................................... passim People v. Dodt, 61 N.Y.2d 408 (1984) ......................................................... 36 People v. Gethers, 86 N.Y.2d !59 (1995) ............................................... 34,36 People v. Hollman, 79 N.Y.2d 181 (1992) ............................................... 5, 30 People v. Howard, 50 N.Y.2d 583 (1980) ................................................ 5, 30 People v. Mack, 27 N.Y.3d 534 (2016) ................................................. passim People v. Martin, 32 N.Y.2d 123 (1973) ...................................................... 33 People v. Moore, 6 N.Y.3d 496 (2006) .................................................. passim People v. Nealon, 26 N.Y. 3d !52 (20 15) .............................................. 3, 4, 26 People v. Nanni, People v. Parker, 135 A.D.3d 52 (1st Dept. 20 15) ..... 23, 24 People v. 0 'Ramo, 78 N.Y.2d 270 (1991) .................................... 3, 25, 26, 28 People v. Silva, 24 N.Y.3d 294 (2014) ..................................................... 3, 26 Ill People v. Tabb, 13 N.Y.3d 852(2009) .......................................................... 26 People v. Walston, 23 N.Y.2d 986 (2014) ...................................... 3, 4, 26,28 People v. Wiggs, 28 N.Y.3d 987 (2016) ....................................................... 26 STATUTES C.P.L. § 140.50 ............................................................................................. 30 C.P.L. § 310.30 ................................................................................... 3, 25, 26 C.P.L.§ 470.05(2) .......................................................................................... 34 C.P.L. § 470.35(1) ..................................................................................... 2, 22 P.L. § 160.10(1) .............................................................................................. I CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I, § 12 ........................................................................... 29, 33 U.S. Cons!. Amend. IV ........................................................................... 29, 33 U.S. Const., Amend. XIV ....................................................................... 29, 33 !V INDEX TO APPENDIX Certificate Granting Leave .......................................................................... A I Appellate Division, First Department Decision and Order ......................... A2 Trial Court's Suppression Motion Decision ............................................. A 18 Jury Notes ................................................................................................... A33 Hearing Transcript .................................................................................... A41 Trial Transcripts ....................................................................................... A211 Sentence Transcript ................................................................................ A1297 Ce11ification ............................................................................................ A1314 v COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, V, LAWRENCE PARKER, Defendant-Appellant. ----------------------------------------------------------)( PRELIMINARY STATEMENT By permission of the Honorable Sallie Manzanet-Daniels, Judge of the Appellate Division, First Department, entered on February 25, 2016 (AI),' Lawrence Parker appeals from an order of the Appellate Division, Second Department (A2), dated November 5, 2015, affirming a judgment of the Supreme Court, Criminal Term, Bronx County, rendered November 4, 2010, convicting appellant of robbery in the second degree (P,L, §160.10(1)) and sentencing him to a term of incarceration of twenty years to life (Moore, l, at pre-trial Dunaway!Mapp/Wade hearing; Stadtmauer, J., at trial and sentence). Parenthetical references preceded by "A." are to the pages of appellant's appendix. On March 31, 2016, this Court granted leave to appeal as a poor person and assigned Seymour W. James, Jr. of The Legal Aid Society as counsel on appeal. Although this case was originally set for review pursuant to Rule 500.11, this Court, in a Jetter dated February 7, 2017, terminated that review and ordered full briefing and argument. Appellant is currently serving his sentence in this matter. Two issues are raised in this brief: (!)whether appellant's conviction must be vacated where the trial court committed a mode of proceedings error when the record does not reflect that it gave defense counsel the requisite "meaningful notice" of two substantive jury notes; and (2) whether the lower court erred when it denied appellant's suppression motion, where his presence next to a fleeing co-defendant did not raise the permissible level of police intrusion. The issue regarding notice of the jury notes does not require preservation and is reviewable by this Court pursuant to C.P.L. §470.35(1); counsel fully preserved the issue of appellant's search and seizure by his pre-trial suppression motion, arguments at the hearing, and the court's Dunaway/Mapp/Wade decision (A IS). QUESTIONS PRESENTED 1. Whether appellant's conviction must be vacated where the court committed a mode of proceedings error by not giving counsel meaningful notice of two substantive jury notes? 2. Whether the court erred in denying appellant's suppression motion, when appellant walked briskly away from the police, thereby exercising his right to be left alone, and his presence next to the fleeing co-defendant did not create a reasonable suspicion that he committed the charged crime? SUMMARYOFARGUMENT The Court Failed to Provide Meaningful Notice of Two Substantive Jury Notes, Requiring a Remand for a New Trial New York Criminal Procedure Law Section 310.30 requires a court to give notice to both the prosecutor and defense counsel when a deliberating jury submits a request for additional information. This Court, in People v. O'Rama, 78 N.Y.2d 270, 277 (1991), ruled that the notice portion of the statute mandates "meaningful notice," and defined "meaningful" notice as "notice of the actual specific content of the jurors' request." This Court has since reiterated the principle that such meaningful notice is fulfilled where the record reflects that counsel has been informed of the verbatim contents of the note. People v. Mack, 27 N.Y.3d 534, 538 (2016); People v. Nealon, 26 N.Y.3d 152, 157 (2015); People v. Silva, 24 N.Y.3d 294,298-299 (2014); People v. Walston, 23 N.Y.2d 986, 988-990 (2014). Where there is record evidence that counsel is informed of the existence of a note, but not of the entire contents of the note, this Court has found that counsel has not received meaningful notice. Jd. at 990; see People v. Nealon, 26 N.Y.3d at 157. This Comt considers meaningful notice so fundamental to a fair trial that failure to provide that notice fits into the very narrow exception to the preservation rule. As recently reasserted in People v. Mack, 27 N.Y.3d at 539: "Our jurisprudence makes clear that a trial comt's failure to provide meaningfi.1l notice to counsel of a substantive jury note constitutes a mode of proceedings eiTor" (citations omitted)2 In appellant's case, on the second day of deliberations, the trial court notified counsel that it received three substantive notes from the deliberating jury. However, the comt only provided meaningful notice of one note; it discussed its response with counsel and read that note into the record before delivering a response to the jury. The court never read the other notes into the record. This lack of record proof that the pmties received meaningful notice of the two remaining substantive notes constitutes a mode of 2 In Mack, the notes had been read into the record, thereby giving counsel the requisite meaningful notice. This Comt held that such notice "gives counsel the opportunity to o~ject to any possible error" in the court's procedure or response to a jury note. Thus, the court's error in not responding to the note did not constitute a mode of proceedings error._ Mack, 27 N.Y.3d at 542. proceedings error. This Court should vacate appellant's conviction and remand the case for a new trial. The Comt Erred in Denying Appellant's Suppression Motion, Where His Presence Beside the Fleeing Co-Defendant Did Not Provide Reasonable Suspicion for the Police to Seize and Search Him. The scope of police interference with an individual's pnvacy and freedom of movement must be commensurate with the amount of information possessed by the officers at the time of that interference. New York law divides police-citizen encounters into four categories. People v. DeBour, 40 N.Y.2d at 223; People v. Hollman, 79 N.Y.2d 181, 184-185 (1992). When the police have only a common-law right to inquire of an individual, the individual has the right not to answer the officer's questions and may walk away. People v. Howard, 50 N.Y.2d 583 (1980). In People v. Moore, 6 N.Y.3d 496, 500 (2006), where the police had a common law right to inquire, and the defendant walked away from the approaching police, the officers were authorized only to "ask questions []-and to follow [him] while attempting to engage him," the defendant "remained fi·ee to continue about his business without risk of forcible detention" (citations omitted). !d. at 500. Here, where the hearing court found that the police had a common law right to inquire, appellant walked "briskly" away from the officers that were speaking to him. His co-defendant, Mark Nanni, ran from the police. Whether or not Nanni's flight added sufficiently to the circumstances sun·ounding the police approach to create a reasonable suspicion as to him and justifY the police pursuit of him, Nanni's flight cannot not be used to raise the permissible level of intrusion regarding appellant. In allowing Nanni's flight to raise the permissible level of intrusion as to appellant, the lower courts ignored the longstanding principle of law that a citizen's "mere propinquity to" someone whom the police may have a right to search or arrest does not grant the police the right to similarly intrude on that citizen. See Ybarra v. Illinois, 444 U.S. 85, 91(1979). Accordingly, this Court should vacate the judgment, reverse the conviction, suppress the physical propetty recovered and the out-of-court identification by the complainant, and remand the matter for a new trial to be preceded by an independent source hearing. STATEMENT OF FACTS Introduction Lawrence Parker and his co-defendant, Mark Nanni, were walking on the driveway away from the building at 3341 Country Club Road in the Bronx, known as the Westchester CountryC!ub, when approaching police officers yelled at them to stop. The officers were responding to a radio run they had received a short time earlier saying that a burglary was in progress at the above address. The men kept walking; the officers repeated their order. Nanni began to mn away in one direction, while Mr. Parker walked briskly away in another. Police Office Fraterrigo chased appellant; after the officer caught up to appellant, he claimed that he saw a sledgehammer in appellant's unzipped backpack. With the help of his partner, Officer FrateJTigo pushed appellant to the ground and handcuffed him. In addition to a sledgehammer, the officer recovered other property from appellant's backpack and pants pocket. While appellant was handcuffed and in the custody of the police, the complaining witness Robert Ederle came outside of the building and identified appellant as one of the people who committed the charged crimes. The officer who testified at the hearing did not speak to Ederle before he identified appellant, nor did he hear any other officer do so. Defense counsel moved to suppress the property recovered, and the out-of-court and in-court identifications of appellant by the complainant as the fruits of an illegal seizure of appellant by the officers and as an improperly obtained identification. After a Dunaway/Mapp/Wade hearing, the court issued a written decision finding the police officers acted within their permissible level of intrusion when they chased appellant. The court found that the officers had a common law right to inquire when they directed appellant to stop. The court ruled that appellant's walking away from the officers after they asked him to stop gave the officers reasonable suspicion and justified their chase and seizure of appellant. The comi also found that the identification by of appellant by the complaining witness was proper. The comt denied appellant's motion in its entirety. At the ensuing jury trial, Eder!e and his wife testified as to the operation of the club, including the procedures for renting the upstairs catering hall and the football "betting pools" that Eder!e ran from the club. The two also discussed the incident of January 21, 2008, in which Ederle claimed that men he later identified as appellant and Nanni held him up at knifepoint, taking approximately three thousand dollars of proceeds from the pools. The deliberating jury in this case sent a number of notes to the court. In the morning of the second day of deliberations, the court told the parties that it had received three substantive notes from the jury. Counsel and the court fully discussed how the court would respond to the first note. When the jury was brought into the courtroom, the court read the first note into the record. The court then explained that it would respond to this note, and address the additional two notes after the lunch break. Upon returning from lunch, the court stated that the jury had sent a note indicating it had reached a verdict. Without any further mention of the two outstanding substantive jury requests, the court then accepted the verdict, The jury acquitted appellant of both counts of robbery tn the first degree, but found him guilty of robbery in the second degree3 On November 4, 2010, the court sentenced appellant as a persistent violent felony offender to a term of incarceration of twenty years to life; it also issued a final order of protection in favor of the complainant. The Pre-Trial Dunaway/Mapp/Wade Hearing On January 21, 2008, Police Officer Michael Frate!Tigo was working as a patrol officer with his partner, Police Officer Daniel Balaj, in the 45th precinct area of Bronx County, New York City when they received a radio run that a burglary was in progress at 3341 Country Club Road (A121-123; A124; A134; H78-80; 81; 91).4 The officers had no additional information regarding the number of perpetrators, any physical description, or of whether or not any weapons were used in the burglary (Al31; H88). They drove to the above address (A125; A134-135; H82; 91-92). ] Co-defendant Nonni was also convicted of robbery in the second degree. 4 Page numbers preceded by "A" refer to the pages of the Appendix accompanying this brief; additionally, "H" refers to the minutes of the Dunaway!Mapp/Wade hearing held November 30, 2009; "D" refers to the court's -written decision denying suppression, dated April 15, 2010; citations without reference refer to the minutes of the trial conducted July 21 -August 2, 2010; and "S" refers to the minutes of the sentencing proceeding held on November 4, 2010. FrateiTigo saw two men exiting the building's driveway onto the street (A127; Al35; H8; 92). He did not see anyone else in the vicinity that he did not recognize as police officers (Al26-l27; Al38; H83-84; 95). Fraterrigo saw Officer David Martinez, a summons officer who had arrived alone at the scene (Al26; H83). Martinez yelled out to the two men to stop (Al28; Al36; A 145; H85, 93, I 02). Officer Peter Delaney heard Ma.ttinez repeat the order, saying that he wanted to speak to the men (A63-64; H: 23-24). One of the men, later learned to be Nanni, began to run (Al28; H85). Several officers ran after him (Al28; H85)5 Fraterrigo saw the man he identified as appellant walk briskly across the street (A136-137; H93-94). Fraterrigo chased appellant, catching up with him across the street, near the lawn of3338 Country Club Road (AI28; H85). FrateiTigo claimed that at that point he saw a sledgehammer in the unzipped red backpack that appellant was wearing (Al28; Al40; H85, 97). Fraten·igo directed appellant to stop (AI28; H85). He also directed him to put his hands behind his back, in preparation to be handcuffed (Al28; H85). FrateiTigo claimed that appellant "put up a struggle," and refused to "give me his hands" (Al28-129; H85-86). FrateiTigo asked Balaj to help handcuff 5 Officer Delaney _testified regarding the seizure and subsequent search and identification by Robert Ederle of Mr. Nonni (AS0-105; A140-151; H10-63; 97-107). He also testified to recovering a roll of duct tape, two knives, and three envelopes each containing one thousand dollars from Nanni (A71; A55; H30, 55). appellant (Al28-129; H85-86). The two officers pushed appellant face- forward onto the ground (Al29; H86). They turned appellant over after they handcuffed him (Al29; 1-!86). Appellant was no longer "combative" once he was subdued by the officers (Al29; H86). Fraterrigo seized appellant's backpack (Al29; H86). He also searched appellant's person (Al30; H87). FratetTigo recovered the sledgehammer and a crowbar from the backpack and a small steal< knife from appellant's right front coat pocket (Al30; H87). With appellant handcuffed and in custody, Fraterrigo heard someone yelling (Al32; Al40; 1-!89; 97). He turned and saw the complaining witness, Robert Ederle, standing in the middle of the street wearing boxer shorts (Al32-133; H89-90). Fraterrigo had not yet spoken to Ederle before Ederle pointed to appellant and shouted, "that's him;" he did not see any other officers speaking with Ederle (Al32-133; Al47; H89-90; Hl04). A few minutes later, other officers brought Nonni back to the scene (A133; Al41; 1-190; 1-198). Ederle identified him as "the other guy" (Al33; AlSO; H90, Hl06). At the close of the hearing, defense counsel argued that the officers had no reason to stop appellant (Al58; Hll4). He explained that appellant was merely walking across the street (Al58; Hll4). He pointed out to the court that the officer only saw the sledgehammer in appellant's backpack after he chased and stopped him (AI 59; HilS). The prosecutor claimed that, because the officers saw the two men within five minutes of receiving the report of a burglary in progress, the officers had a reasonable suspicion to stop and search the men, or, at minimum a common-law right to inquire (A171-172; Hl27-128). He argued that appellant was walking away "as fast as he could" (Al74; Hl30). He said that the sledgehammer was in plain view when appellant was stopped by Fraterrigo (Al75; Hl31 ). The prosecutor also argued that the identification by Ederle of the handcuffed appellant surrounded by police officers was not a police-arranged identification procedure (Al76; H!32). The comt issued a written decision, dated April 15, 2010. The court deemed the two testifying officers, Delaney and Fraterrigo, to be credible witnesses (A26; D9). The court ruled that Officer Martinez's direction to stop to appellant and Nonni as they were walking down the driveway was an encounter at the "minimal level of intrusiveness" (A30; Dl3). In discussing this first encounter between the police and appellant, the court found that, because the two men were the only ones in the immediate vicinity of the reported burglary in progress, the officers "at best had a common law right of inquiry" (A30; Dl3). The court did not differentiate between appellant's ignorance of the officer's command while he walked across the street and Nanni's running away when it found that both men "actively fled from the police" and therefore did more than exercise their "right to be let alone" (A30; D13). The court remarked that, after he stopped appellant, Fraterrigo saw a sledgehammer in the backpack that he was carrying (A31; Dl4). The court found that, based on the officer's "observations," the recovery of the backpack and its contents was "justified and lawful" (A31; D 14).6 The court also found the identification by Ederle was not police-arranged (A3l; D14). The court denied appellant's motion to suppress in its entirety (A32; DIS). The Trial Anne Ederle (AE) and her husband, Robert (RE), were the caretakers of the social club located at 3341 Country Club Road, Bronx, New York (AE: A251; A299-300; 41; 89-90; RE: A398; A400; 188; 190). They lived on the premises, taking care of the grounds and the facilities (AE: A249-250; A252; 39-40; 42; RE: A407; A549; A581; A633; 197; 339; 371; 423). The club consists of a bar, a kitchen, a catering hall upstairs, and a pier outside, near the adjacent beach (AE: A252; 42; RE: A537; 192; RE: A410; A549; 6 Although the court stated that the crowbar and steak knife were recovered from the backpack, as noted above, the knife was actually recovered from appellant's pocket. 200; 339). The building is at tbe end of a driveway, some distance from the road (AE: A252-253; 42-43; RE: A535; 190). AE explained that the catering hall was previously available for anyone to rent, but now only members can rent the space (AE: A255; A314-315; 45; 104-105). REsaid that the policy has always been that anyone wanting to rent the hall had to be referred by a member (RE: A41l; A550; 201; 340). As part of their compensation for this work, the couple lived rent-free (AE: A303; 93). RE also got a salary for this work, of approximately $15,600 per year (AE: A302; A306; A308; A341; 92,; 96; 98; 131; RE: A586-587; 376-377). He supplemented his income with tips and extra pay for bartending and/or working parties held in the upstairs catering hall (RE: A581; A587; 371; 377). Additionally, REran football betting "pools" from the club (AE: A288; 78; RE: A412; A586; 202; 376). The price per box for the largest Super Bowl pool in January 2008 was ten thousand dollars per box, resulting in the possibility that one person would win one million dollars (RE: A414; A551-552; 204; 341-342). RE called himself the "kingpin" of this pool (RE: A414; A561; 204, 351). He received what he termed "voluntary tips" for running tbe pool (RE: A558-559; 348-349). He admitted that he did not pay taxes on the money that he made from the pools (RE: A595; 385). On January 18, 2008, at about 8 p.m., AE went from the club's kitchen out to the bar to let her husband know that his dinner was ready (AE: A264-265; 54-55). She saw that he was speaking with a woman (AE: A265; 55; RE: A418; 208). The woman's name was Samantha Sanchez (RE: A418; 208). Ms. Sanchez had a reference that cleared her for renting the upstairs hall (RE: A419; 209). REgave Ms. Sanchez a sheet of paper with information about renting the hall; he attached a business card to the paper (AE: A282; A394-395; 72; 184-185; RE: A422; A594; 212; 384). AE brought Ms. Sanchez upstairs and showed her the space (AE: A266; A319; 56; 109; RE: A419-421; 209-211). Ms. Sanchez later called RE (AE: A284; A319; 74; 1 09; RE: A432; 222). She made an appointment for her husband to look at the hall on the following Monday at about 9:30 a.m. (RE: A433- 434; 223-224). On the morning of January 21, 2008, RE got up and dressed for his 9:30a.m. appointment (AE: A291; A325; 81, 115; RE: A445; 235). At about 9:20 a.m., RE saw two men, later identified as appellant and Nonni, walking up the driveway of the club (RE: A446; 236). RE greeted the two men; he held the door open for them to enter the club (RE: A256; A484; 246, 274). RE walked ahead of the men up the stairs to show them the hall (RE: A457; A488; 247; 278). / Once the three men were upstairs, according to RE, appellant yelled out "now," and took out a knife that with a seven to nine inch blade (RE: A459; A491; 249; 281). As appellant walked toward him, RE raised his arm and blocked him by giving him a "shot across his chest," causing appellant to stumble backward (RE: A460-461; A491-492; 250-251; 281-282). RE told the jury that he was not afraid at this time (RE: A460; 250). RE could not see Nonni, so he "spun" to his right, intending to get past him to go to the stairway (RE: A461; 251). RE then saw that Nonni had a knife pointed at his side near his kidney (RE: A461-462; A491; A609-610; 251-252; 281; 399-400). Nonii told RE not to move, that he'd kill him (RE: A462; A492; 252; 282). RE put his hands up (RE: A462-463; 252-253). At this point, appellant was still six feet away, where he was after RE "knocked" him (RE: A462; 252). Nonni asked for the football pool money; he also asked RE if his wife was home (RE: A463; 253). RE told Nanni that his wife was not there, that they did not live on the premises (RE: A463-464; A504; 253-254; 294). Nanni again asked for the money (RE: A464; A465; 254; 255). Nonni told RE to kneel (RE: A464; A504; 254; 294). He directed RE to lay down flat on his stomach, with his hands behind his head (RE: A465; A504; 255; 294). RE said that appellant then kneeled and straddled him, as he told him not to move or "I'll kill you" (RE: A465; A505; 255; 295). Appellant held a knife across the back of RE's neck (RE: A465; A505; A507; 255; 295; 297). Nmmi then tied RE's wrists together with duct tape (RE: A465-466; A506- 507; A610; 255-256; 296-297; 400). RE told the men the money was downstairs (RE: A466; 256). Appellant then moved away from RE (RE: A505; 297). Nanni, pointing a knife near RE's kidney, told him to stand up (RE: A505; 297). The men kicked RE's slippers over to him (RE: A505; 297). Nanni put some paper and a rag in RE's mouth (RE: A505; 297). Nanni also put some duct tape on RE's mouth (RE: A506; 298). With Nanni behind him pointing a knife, and appellant in third place, RE went downstairs to an area where he kept some of the money from one of the smaller football pools (RE: A506-507; A509-510; 298-299; 301-302). RE had three thousand dollars in envelopes in a metal canister (RE: A302; A575-576; 299; 365-366). He did not, as a practice, deposit this money in a bank (RE: A590; 380). REtold Nanni where to find the canister (RE: A513; 303). Nanni opened the canister and removed three envelopes, each containing one thousand dollars (RE: A513; A525; A589; 303; 315; 379). Nonni told appellant to take RE over to a nearby message chair; he told RE to kneel in the chair (RE: A513; 303). REheard Nonni make a telephone call. Nonni said, "we got it. That's all there is" (RE: A514-515; 304-305). REtold the jury that the men then bound his ankles together with more duct tape (RE: A515; A577; A613; 305; 367,;400). RE slid offofthe chair (RE: A516; 306). The men directed him to lie on his stomach (RE: A5!6; 306). Appellant threw the comforter that was on a nearby chair over RE's body (RE: A516-517; A61!; 306-307, 401). After laying there for a while in silence, RE got up and took his hands out of the duct tape. He said that he pulled down his pants, got free, and went into the kitchen of his apartment (RE: A518-519; A578; 308-309; 368). AE said her husband knocked on the kitchen door and came inside wearing his underwear only(AE: A297; 87). Sometime earlier, while inside the apartment, AE heard what she determined were more than two sets of footsteps upstairs (AE: A226; A292; A325; 16; 82; 115). AE called Joe Ives, a family friend (AE: A293; A293; A355; 83; 116; 145). Joe told her that he was on his way, but, that, in the meantime, she should call 911 (AE: A293; A326; 83; 116). AE called 911 (AE: A293; A295; 83; 85). A few minutes later, but before RE knocked on the door, Joe came into the apartment (AE: A296; A318; A373; 86; 108; 163). RE and Joe ran out the door (AE: A298-299; A318; A319; 88-89; 108; 109). They got into Joe's car (RE: A519-521; A578-579; 309-311; 368-369). When they reached the gate of the club, RE saw appellant sitting on the ground, handcuffed and in the custody of two police officers (RE: A522; 312). REtold the officers that appellant was "the guy" (RE: A522; A580; 312; 370). A few minutes later, RE saw additional police officers bring Nanni back to the scene. RE identified Nanni as "the other guy" (RE: A523; A580; A622; 313; 370; 412). Police Officer Mike Fraterrigo' s testimony was substantially similar to his hearing testimony regarding the events that occurred between the time he received the radio transmission and appellant's arrest and identification by RE (MF: A663-704; 454-495). Similarly, Police Officer Peter Delaney testified at trial substantially similar to his hearing testimony regarding the arrest and identification ofNonni (PO: A715-751; A772-775; 505-541; 562- 565). Police Officer Edward Lemp also testified about Nanni's arrest and identification by RE (EL: A577-598; 567-588). Police Officer Kegham Jarjokian explained that, as a member of the evidence collection team, he "dusted" the upstairs catering hall (KJ: Al009; A1025; 627; 642). He did not find any usable fingerprints (KJ: A1025; 642). In addition, he was unable to get any results Ji'mn DNA and fingerprint analysis of the duct tape that had allegedly been used to bind RE (KJ: Al027; 645). The jury retired to deliberate. Near the end of the first day of deliberations, the jury sent a note requesting certain trial exhibits (police reports and arrest photos)(Al267; A33; 882; Court Exhibit 7). The court asked counsel to acknowledge that they had seen the note, and that the requested exhibits had been sent to the jury (Al267; 882). In the morning of the second day of deliberations, the court told the parties that it had received three notes from the jury (Al270; A34-36; 885; Court Exhibits 8, 9, & 10). The first note requested a rereading of a definition of some of the charges and a piece of physical evidence, as well as a read-back of certain testimony (A34; Comt Exhibit 8). Based upon appellate counsel's review of the notes contained in the Supreme Court file, the second and third notes requested a read-back of specific testimony by the fingerprint expert (A35; Comt Exhibit 9), as well as by the complainant and his wife (A36; Court Exhibit 10). The comt told the patties that it "will be reading [the notes] into the record after the jury is seated (Al270; 885). The court noted that counsel primarily agreed upon the testimony that would be read to the jury in response to the first note; the parties then further discussed the comt's response to that note (A1270-1274; 885-889). When the jury was brought into the courtroom, the court read the first note (A34; Court Exhibit 8) into the record (Al275; 890). The court then explained, "So let's deal with that note first and we'll leave the other two for after lunch. One at a time (AI275; 890)." The court then carefully responded to the questions posed in the jury's first note (AI275-1284; 890-899). The court did not read either of the other two notes (A35-36; Court Exhibits 9 & 10) into the record, but addressed the jury as follows: "The additional testimony that you requested in the other two notes, we'll respond to that after lunch (Al285; 899)." The court instmcted the jury to return to the jury room for lunch, and, if it so chose, to continue deliberations (AI285; 899). Upon returning from lunch, the court told the parties that the jury had sent a note indicating it had reached a verdict (Al286; A37; 900; Court Exhibit II). The court asked counsel to acknowledge on the record that they had seen that note; counsel so acknowledged (AI286; 900). Without any further mention of the two outstanding substantive jury requests (A35-36; Court Exhibits 9 & 10), the court then accepted the verdict (A!286-1291; 900-905). The jury acquitted appellant of both counts of robbery in the first degree (involving the knives allegedly held by each man), but found him guilty ofrobbe1y in the second degree (Al286-1288; 900-902)7 On November 4, 2010, the court sentenced appellant as a persistent violent felony offender to a term of incarceration of twenty years to life (A1311; Sl5). The court also issued a final order of protection in favor of RE (A1312; Sl6). The Appellate Division Decision Appellant did not raise the issue of denial of meaningful notice of the two jury notes before the Appellate Division, First Department.' Appellant argued, inter alia, that the police officers exceeded the permissible level of intrusion when they ordered him .to stop, and when they chased, tackled, atTested, and searched him. On November 5, 2015, m an opm10n by Justice Friedman, a bare majority of the Appellate Division found that the police officers' successive actions were justified by the requisite level of suspicion and that the hearing 7 As stated earlier, Nanni was also convicted of robbery in the second degree. 8 Although this issue was not raised before the Appellate Division, First Department, C.P.L. ~470.35 (I) authorizes this Court to consider and determine "any question of law involving alleged error or defect in the criminal court proceedings ... regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court." court properly denied appellant's suppression motion. The majority found that the radio nm of a burglary in progress and the observation of appellant and Nonni walking out of the driveway of the establishment gave the police officers "at least a founded suspicion that [the] defendants were involved with the burglary, warranting a level-two common-law inquiry" People v. Nanni, People v. Parker, 135 A.D.3d 52, 55(!" Dept. 2015) (A2-17). The majority acknowledged that Nonni's response to the police action differed from that of appellant. "Instead of stopping, defendant Nonni immediately ran, and defendant Parker immediately made what officers described as a "hurried" and "evasive" depmture." !d. at 56-57 (AS). Nevertheless, the majority noted that, while appellant did not run away from the police, his "brisk" walking away, coupled with the headlong flight of Nanni, with whom he had been walking, created a reasonable suspicion and "justified the police in pursuing and forcibly stopping him." !d. at fn. 3 (AS). The court further found that the sledgehammer in appellant's unzipped bag justified a "protective" search of the bag, and appellant's resistance to being detained justified the use of handcuffs. !d. at 58(Al0). Justice Sallie Manzanet-Daniels wrote the dissent, in which she was joined by Justice Rosalyn Richter. The dissent found that, given the extremely limited information possessed by the officers when they arrived at the scene, at most, they were entitled to conduct a level-one request for information. Jd. at 59 (A13). Thus, the dissent found that, since the police did not initially have a founded suspicion, they were not justified in pursuing either appellant or Nonni. Impmtantly, the dissent noted that appellant, unlike Nonni, did not flee but walked at a "hurried pace" across the street. Jd. 59-60 (Al3-15). Honorable Sallie Manzanet-Daniels, Judge of the Appellate Division, First Department granted leave to appeal to this Comt in an order entered on February 25, 2016 (Leave Grant, A I). ARGUMENT POINT! WHERE COUNSEL DID NOT RECEIVE MEANINGFUL NOTICE OF TWO SUBSTANTIVE JURY NOTES, THE COURT COMMITTED A MODE OF PROCEEDINGS ERROR; APPELLANT'S CONVICTION MUST BE VACATED. C.P.L. §310.30. During the second morning of deliberations, the jury sent three substantive notes to the court. The court discussed how to respond to the first note with counsel; it also read that first note into the record. Counsel therefore had meaningful notice of that note. The court did not read the second and third notes into the record. Moreover, unlike an earlier note requesting exhibits and the subsequent note indicating that the juzy had reached a verdict, the court did not ask the parties to acknowledge that they had reviewed those notes. The transcript of the proceedings indicates only that the attorneys were aware of the existence of those notes. As such, counsel did not receive meaningful notice of those two substantive jury notes. In denying counsel such notice, the trial court committed a mode of proceedings error. Appellant's judgment should be vacated, the conviction reversed, and the case remanded for a new trial. People v. Mack, 27 N.Y. 3d 554 (2016); People v. 0 'Rama, 78 N.Y.2d 270 (1991); C.P.L. §310.30. Criminal Procedure Law Section 310.30 requires a court to give notice to both the prosecutor and defense counsel when a deliberating jury submits a request for additional substantive information. This Court, in People v. O'Rama at 277, ruled that the notice portion of the statute mandates "meaningful notice," and defined "meaningful" notice as "notice of the actual specific content of the jurors' request." The Court adopted as a preferred method of addressing a juzy' s requests the procedure outlined in United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981), one wherein, inter alia, the contents of a juzy note are read into the record in the presence of counsel before the response is given to the juzy, so that counsel has a full opportunity to pmticipate in formulating that response. 0 'Rama at 277-278. This Court has since found that the requirement of meaningful notice is fulfilled only where the record reflects that counsel has been informed of the verbatim contents of the note. People v. Wiggs, 28 N.Y.3d 987, 988 (2016); People v. Mack, 27 N.Y.3d at 541; People v. Nealon, 26 N.Y.3d 152, 157 (2015); People v. Silva, 24 N.Y.3d 294, 298-299 (2014); People v. Wafs ton, 23 N. Y.2d 986, 988-990 (20 14 ). Where there is record evidence that counsel is informed of the existence of a note, but not of the entire contents of the note, this Comt has found that counsel has not received meaningful notice. !d. at 990. There must be "record proof' that the court complied with its "core responsibilities" under C.P.L. §310.30. People v. Tabb, 13 N.Y.3d 852, 853 (2009). As this Court stated in People v. Silva, 24 N.Y.3d at 300: "The record therefore must indicate compliance with adequate procedures under O'Rama because reviewing courts 'cannot assume' that the proper procedure was utilized when the record is devoid of infonnation as to how jury notes were handled (citations omitted). The 'presumption of regularity' cannot salvage an O'Rama error of this nature (see People v. Tabb, 13 N.Y.3d 852(2009))." This Court considers meaningful notice so fundamental to a fair trial that failure to provide that notice fits into the very narrow exception to the preservation rule. As recently reasserted in People v. Mack, 27 N.Y.3d at 539: "Our jurisprudence makes clear that a trial comt's failure to provide meaningful notice to counsel of a substantive jury note constitutes a mode of proceedings error" (citations omitted)9 Here, the court indicated that it had received three substantive notes on tbe morning ofthe second day of deliberations. Although the court told counsel that it would read all three notes into the record once the jury returned to the courtroom, it did not do so. When the jury was reseated, the court read only the first note into the record. The court did not read the second and third note into the record, nor did it ask counsel to acknowledge that he had seen the second and third notes. After providing a full response to that note, the comt took a lunch break. The court told the jury that it could continue deliberations during the break. After lunch, the jury sent the court a note indicating it had reached a verdict. The court asked counsel to note on the record that he had seen that note. The court then took the verdict, without reading into the record and/or addressing in any way the two outstanding substantive jury notes. Therefore, appellant's counsel's position differed from that of the attorney in 9 In Mack, the notes had been read into the record, thereby giving counsel the requisite meaningful notice. This Court held that such notice "gives counsel the opportunity to object to any possible error" in the court's procedure or response to a jury note. Thus, the court's error in not responding to the note did not constitute a mode of proceedings error. Mack, 27 N.Y.3d at 542. Mack, who knew the "precise contents" of the jury notes. People v. Mack, 27 N.Y.3d at 543. The court's statement that it would address the jury's request for "additional testimony" after the lunch break did not constitute "meaningful notice." People v. Walston, 23 N.Y.2d at 990. Since counsel did not have the required "meaningful notice" of the notes. he was not able to determine what, if any objection to make to the court's lack of response to those notes. Because, as this Court noted in People v. O'Rama, 78 N.Y.2d at 279, such error "ha[s] the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial," the trial court committed a mode of proceedings error. Accordingly, this Court should vacate the judgment, reverse the conviction, and remand the case for a new trial. POINT II THE COURT ERRED IN DENYING EXERCISING HIS RIGHT TO BE LEFT ALONE, AND HIS PRESENCE NEXT TO THE FLEEING CO-DEFENDANT DID NOT CREATE A REASONABLE SUSPICION THAT HE COMMITTED THE CHARGED CRIME. Even if the police officers in appellant's case had a founded suspicion that criminal activity was afoot when they ordered appellant and Nanni to stop, appellant had the right to disobey their command and to exercise his right to be left alone. 10 People v. Moore, 6 N. Y.3d 496, 500 (2006). Appellant did exactly that, by walking hurriedly across the street. While Nanni may have elevated the permissible level of police intrusion by his running away, appellant did not flee. As such, the officers' chase and subsequent seizure of appellant went beyond the permissible level of police intrusion. By finding appellant responsible for the independent actions of his co-defendant, the lower courts impermissibly expanded, as a matter of law, those actions that create a reasonable suspicion that a crime has been committed. Consequently, all evidence obtained as a result of the unlawful seizure and search of appellant, including the property recovered and the out-of-court identification by the complainant, must be suppressed. This Court should vacate the judgment, reverse the conviction, and remand the matter for a new trial to be preceded by an independent source hearing. U.S. Canst. Amend. IV, XIV; N.Y. Canst. Art. I,§ 12. The state and federal constitutions guarantee to every citizen the right to be free from unreasonable searches and seizures. U.S. Canst., Amends. IV, XIV; N.Y. Canst., Art. I, §12; People v. DeBour, 40 N.Y.2d 210 (1976). 10 Although appellant argued below that the police had only an objective, credible reason to approach when they ordered appellant and Nanni to stop, in order to clearly present an issue of law to this Court, appellant will not contest the lower courts' factual finding that the officers had a founded suspicion when they approached the men and ordered them to stop. The scope of police interference with an individual's privacy and freedom of movement must be commensurate with the amount of information possessed by the officers at the time. New York law divides police-citizen encounters into four categories. People v. DeBour, 40 N.Y.2d at 223; People v. Hollman, 79 N.Y.2d 181, 184-185 (1992). Level one is a request for information, which must be based upon an objective credible reason, not necessarily related to criminality. Next is the common-law right to inquire, which requires a founded suspicion that criminal activity is afoot and which permits interference with a person to the extent necessary to gain explanatory information to confirm or refute that suspicion, but short of a forcible seizure. Hollman, 79 N.Y.2d at 191; DeBour, 40 N.Y.2d at 218- 219, 223. At these levels, the individual has the right not to answer the officer's questions and may walk away. People v. Moore, 6 N.Y.3d at 500; People v. Howard, 50 N.Y.2d 583 (1980). Neither level will support a protective frisk. People v. DeBour, 40 N.Y.2d at 223. In order for the police to forcibly stop and detain an individual, they must have a reasonable suspicion that he or she is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 30-31 (1968); People v. DeBour, 40 N.Y.2d at 215; C.P.L. §140.50. Reasonable suspicion is the "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." People v. Cantor, 36 N.Y.2d 106, 112-113 (1975). Lastly, to arrest an individual, the fomih and most intrusive level of police interference, the prosecutor must demonstrate that the information in the possession of the police officers at the time of the arrest made it more probable than not that the person arrested was the perpetrator. People v. Carrasquillo, 54 N.Y,2d 248,254 (1981). Here, appellant and Nanni were ordered to stop by police officers who possessed, at most, a common law right to inquire. Both men chose not to stop to speak to the officers. Appellant "briskly" walked away. In doing so, he exercised his right to be let alone. Instead of allowing him to exercise this right, however, the officers chased, seized, and searched him. The lower courts' finding that appellant's fast walking was flight, because appellant was standing next to Nanni, who ran from the police, improperly expanded the longstanding rules regarding pennissible levels of police intrusion set forth in DeBow-. In People v. Moore, 6 N.Y.3d at 500, where the police similarly had a common law right to inquire, and the defendant walked away from the approaching police, the officers were authorized only to "ask questions [] - and to follow [him] while attempting to engage him," the defendant "remained fi·ee to continue about his business without risk of forcible detention" (citations omitted). I d. at 500. As this CoUtt explained: "the very right to be let alone - . . . --- is the distinguishing factor between the level of intrusion permissible under the common-law right of inquiry and the right to stop forcibly. If merely walking away from the police were sufficient to raise the level of suspicion to reasonable suspicion --- and a suspect who attempted to move could be required to remain in place at the risk of forcible detention - -- the common-law right of inquiry would be tantamount to the right to conduct a forcible stop and the suspect would be effectively seized whenever only a common-law right of inquiry was justified." (citations omitted) Id. at 500. Appellant's fast walking was clearly protected by DeBour and Moore. The police officers did not obtain additional information that connected appellant to the crime, such as a description of the perpetrators, or an identification by the complainant. Officer Fraterrigo testified that he first saw the sledgehammer in appellant's backpack after he "caught up" to him. Appellant did not have any visible proceeds of the burglary; he did not engage in suspicious behavior while he was walking away from the scene. Moreover, appellant was not connected in any way to Nanni's running away from the officers, i.e., the police did not observe any conversations between the two men or any behavior that would indicate that appellant was connected in any way with Nanni, let alone with the latter's running away from the police. Whether or not Nanni's flight added sufficiently to the circumstances surrounding the police approach to create a reasonable suspicion as to him and justify the police pursuit of him, Nanni's flight cannot not be used to raise the permissible level of intrusion regarding appellant. In doing so, the lower courts ignored the longstanding principle of law that a citizen's "mere propinquity to" someone whom the police may have a right to search or arrest does not grant the police the right to similarly intrude on that citizen. See Ybarra v. l/linois, 444 U.S. 85, 91(1979); People v. Martin, 32 N.Y.2d 123, 125 (1973). Accordingly, this Court should vacate the judgment, reverse the conviction, suppress the property recovered from appellant and the out-of- court identification of appellant by the complainant, and remand the matter for a new trial to be preceded by an independent source hearing. U.S. Canst. Amend. IV, XIV; N.Y. Canst. Art. I,§ 12. This issue has been preserved for appellate review. Defense counsel moved to suppress the property recovered and the identification of appellant by RE because of the impropriety of the police conduct and the improperly obtained identification. At the close of the hearing testimony, counsel argued that the officers had no basis to initially stop appellant. He pointed out that appellant was merely walking across the street when the police chased him and that the sledgehammer was recovered after the officer had stopped appellant. The trial court analyzed its decision in light of the DeBour framework, finding that the police initially had a common-law right to inquire, and that both defendants "actively fled" from the officers.'' * * * The court's constitutional enor in failing to suppress the property recovered from appellant and the identification by RE cannot be deemed harmless beyond a reasonable doubt. "[S]uch error calls for reversal and a new trial unless it was harmless under the test for harmless constitutional enor laid down by the Supreme Court of the United States, namely, that there is no reasonable possibility that the error might have contributed to defendant's conviction and that it was thus harmless beyond a reasonable doubt." People v. Crimmins, 36 N.Y.2d 230,237 (1975) (citations omitted). Moreover, as the court did not address the question of independent source, the complainant's in-court identification may not be considered in assessing the harm. People v. Gethers, 86 N.Y.2d 159, 163 (1995). Here, the trial court's erroneous admission of testimony about the sledgehammer, crowbar, and knife recovered from appellant, as well as RE's 11 See C.P.L.§470.05(2) (question of taw presented "if in response to a protest by a party, the court expressly decided the question raised on appeal"). identification of appellant certainly contributed to appellant's conviction. Had the court not erred in denying appellant's suppression motion, the jury would have been able to examine the evidence more closely. When the officers arrived at the scene, appellant and Nanni were merely walking down the driveway of the Country Club on the morning of Martin Luther King Day, a day one would expect the County Club to be open. The men were not running away or acting in any way as though they had just committed a crime. The jury heard testimony regarding the property recovered from appellant, including items commonly considered burglar's tools. This testimony served to paint appellant a "criminal" in the jury's mind, despite the fact that the tools were not alleged to have been used in connection with the charged crime. RE's identification of appellant while he was handcuffed and in police custody bolstered the possibility that he had committed a crime. 12 Without this illegally obtained evidence, and smce RE's in-court identification cannot be considered in assessmg harm, the denial of appellant's motion to suppress cannot possibly be considered harmless beyond a reasonable doubt. Accordingly, this Court should reverse 12 The jury clearly had questions about RE's credibility. Although he testified that appellant held a knife to his neck and Nanni held a knife near his kidney, the jury acquitted appellant (and Nonni) of both counts of robbery in the first degree (those involving the use of knives). appellant's conviction, grant his motion to suppress, , and order a new trial preceded by an independent source hearing. People v. Gethers, 86 N.Y.2d 159; People v. Dodt, 61 N.Y.2d 408 (1984). CONCLUSION FOR THE REASONS ADVANCED HEREIN, THE ORDER OF THE APPELLATE DIVISION MUST BE REVERSED, THE PROPERTY RECOVERED AND OUT-OF-COURT IDENTIFICATION SUPPRESSED, AND THE CASE REMANDED TO THE TRIAL COURT FOR AN INDEPENDENT SOURCE HEARING, FOLLOWED BY A NEW TRIAL. ALTERNATIVELY, THE CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR A NEWTRlAL. April S, 2017 Respectfully Submitted, +"'~ ?t~.d~r SEYMOUR W. tMES, JR. LORRAINE MADDALO Attorneys for Defendant- Appellant COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- LAWRENCE P ARK.ER, Defendant-Appellant. : AFFIRMATION CERTIFYING : WORDCOUNT ----------------------------------------------------------------)( STATE OF NEW YORK) . ) ss.: COUNTY OF NEW YORK ) LORRAINE MADDALO, an attorney duly admitted and licensed to practice in the State ofNew York, hereby certifies that the word count of the printed text of the body of the herein Appellant's Brief has been determined using the word processing system with which the Brief was prepared and that it is 8,297 words. Dated: New York, New York April 5, 2017 COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LAWRENCE PARKER, Defendant-Appellant. __________________________________________________________ )( STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK) Lorraine Maddalo, an attorney duly admitted to the practice of law in this State, does hereby affirm and show: That, on April 5, 2017, the within brief and appendix was served upon the Respondent in this case, ADA Ryan Mansell, c/o Hon. Darcel Clark, Bronx County District Attomey, 198 E. l6 JS1 Street, Bronx, NY 1045L , by designating true copies of the same in a postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. Dated: New York, New York April 5, 2017