The People, Respondent,v.Lawrence Parker, Appellant.BriefN.Y.March 20, 2018APL-2016-00050 To be argued by LORRAINE MADDAI.O (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respo11denl, -agc1insl - LAWRENCE PARKER, Deji:ndant-AjJpellanL REPLY BRIEF FOR DEFENDA.'IT-APPELLANT LORRA!l'IE MADDALO Of Counsel July, 2017 SEY!VIOUR W. JAMES, JR. Attorney for Defendant- Appellant THE LEGAL AID SOCIETY Crirnit1al Appeals Bureau 199 Water Street, 5th Floor. New York,:<. Y. 10038 (212) 577-3343 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii PRELIML"lARY STATEME:c;T. ................................................................... l ARGL'NlENT POINT! CONTR,'\RY TO THE PROSECUTOR'S ARGUMENT, THE COURT DID NOT PROVIDE MEANINGFUL NOTICE TO COUNSEL OF TWO JURY NOTES, THEREBY COMl\1JTT1"G A MODE OF PROCEEDINGS ERROR. C.P.L. §310.30 .......................................................... 2 POINT II CONTRARY TO THE PROSECUTOR'S CLAIM, APPELLAi'\."PS SUPPRESSION CLAIM IS REVIEWABLE AS A l'v1ATTER OF LAW, \VHERE THE LOWER COURTS ERRED JN CONCLUDING THAT APPELLANT FLED THE APPROACHING POICE, AND WHERE THE POLICE SEIZED AND SEARCHED HIM WITHOUT THE REQUISITE REASONABLE SUSPICION ............................................................................... 9 CONCLUSION ............................................................................................. 13 1 TA.BLE OF AUTHORJTIES STATE CASES People v. Agosto, 73 N.Y.2d 963 (1989) .................................................... 3, 4 People v. Allen, 42 A.D.3d 33 l (!st Dept. 2007) ......................................... 12 People v. Carrero, 140 AD2d 533 (2d Dept. 1988) ....................................... 3 People v. Johnson, I I l A.D.3d 469 (!st Dept. 2013) .................................. 12 People v .• ~fack, 27 N.Y.3d 534 (2016) .............................................. 2, 4, 5, 7 People v. Afoore, 6 N.Y.3d 496 (2006) ............................................. 10, 11, 13 People v. Nealon, 26 N.Y.3d 152 (2015) .................................................... 2, 5 People v. Parker, 135 A.D.3d 52 (!st Dept. 2015) ....................................... 12 People v. O'Rama, 78 N. Y.2d 270 (1991) .............................................. 2, 3, 5 People v. Silva, 24 N.Y.3d 294 (2014) ....................................................... 2, 5 People v. Tabb, 13 N.Y.3d 852 (2009) ....................................................... 2, 8 People v. Walston, 23 N.Y.3d 986 (2014) .................................................. 2, 5 STATUTES C.P.L. § 310.30 ............................................ , .............................................. 2J 8 CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I,§ 12 ................................................................................. 13 U.S. Const. Amend. JV ................................................................................. 13 U.S. Const. Amend. XIV .............................................................................. 13 .. Il COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LA WRE~CE PARKER, Defendant-Appellant. PRELIMINARY5TATEMENT This brief is submitted in reply to the arguments set forth in Respondent's brief, which we received by email on June 2, 2017 and by regular mail on June 6, 2017. As the purpose of this reply is to respond to specific arguments made by the prosecutor, the facts will not be repeated here. l ARGUME!f[ POINT I CONTRARY TO THE PROSECUTOR'S ARGUMENT, THE COURT DID NOT PROVIDE MEANINGFUL NOTICE TO COUNSEL OF TWO JURY NOTES, THEREBY COMMITTING A MODE OF PROCEEDINGS ERROR. C.P.L. §310.30. As discussed in appellant's original brief, the trial court committed a mode of proceedings error when it did not provide counsel with meaningful notice of two jury notes before it accepted the verdicts in this case, This Court has established, and repeatedly reinforced, its rule that meaningful notice is provided only where the record reflects that counsel has been informed of the verbatim contents of the note. People v. A1ack, 27 N.Y.3d 534, 541-542 (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.3d 986, 988-990 (2014); People v. O'Rama, 78 N.Y.2d 270, 277 (1991). 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. People v. PVa/ston 23 N.Y.2d at 990. There must be "record proof' that the com1 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 2 record therefore must indicate compliance with adequate procedures under 0 'Rama because reviewing courts 'cannot assume' that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled (citations omitted). The 'presumption of regularity' cannot salvage an 0 'Rama en-or of this nature {citing People v. Tabb, 13 N.Y.3d at 853), The prosecutor has set fmth several theories as to why this Coun should abandon its longstanding jutisprudence regarding meaningful notice. None of these theories is meritorious, and all have been previously discussed and discredited by this Court. First, the prosecutor tries to claim that the jury notes in this case fall outside of 0 'Rcuna 's purview by speculating that the jury "implicitly rescinded" the outstanding jury notes. 1 In asking this Comt to reach that conclusion, the prosecutor analyzes the prejudice requirement discussed in People v. Agosto, 73 N.Y.2d 963, 966-967(1989) and People v. Carrero, 140 AD2d 533, 533 (2d Dept. 1988). However, even under the Agosto/Carrero standard, appellant's jury did not "implicitly rescind" the jury's notes. Unlike the court in Carrero, the trial court here did not ask the jury if it wanted tile other notes answered before it accepted the verdict. Respondent's Brief("RB") p. 35. 3 Moreover, the more than two hours between the time the jury sent out the unanswered notes and the verdict being taken was, in fact, an unreasonable delay; the jury continued deliberations throughout the lunch "hour" (Al285).2 Finally, when the com1 did not respond to the jury's notes, but immediately accepted the verdicl, the jury could come to no other conclusion than that their outstanding requests were going to be ignored. Most importantly, the "serious prejudice" principle cited by the prosecutor only applied where there had been "meaningful notice" of the note(s) in question. People v. Agosto, 73 NY3d at 966-967. As discussed above, and in appellant's original brief, here the record does not reflect that cot1nsel received t11e requisite i11eaningful notice.3 As such, since this case presents a mode of proceedings error, "harmless error" analysis does not apply. People v. Afack, 27 :-,y3d at 538 (citations omitted). Next, the prosecutor argues that appellant had "meaningful notice" of the unanswered jury notes. That claim also flies in the face of prevailing New York law. '11iis Court has repeatedly held that 1neaningful notice is ' Citations to "A" are to appellant's Appendix. 3 The facts in this case are not analogous to those in rlgosto, where the delay in the court's response note did not concern the charges or evidence, and where the delay was approximate!)' 20 rni11utes. ff ere, tl1e jury sent to tl1e court the two unanswered notes before noon) while it sent the note indicating that it had reached a verdict at 2:31 p.m. (A37). 4 provided where the record reflects that counsel has been infonned of the verbatim contents of the note. People v. Mack, 27 N.Y.3d at 541-542 (2016); People v. Nea/011, 26 N.Y.3d at t57; People v. Silva, 24 N.Y.3d at 298-299; People v. Walston, 23 N.Y.3d at 988-990; People v. O'Rama, 78 N.Y.2d at 277. As discussed above and in appellant's original brief, 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 Cmut has found that counsel has not received meaningful notice. People v. Walston 23 N.Y.2d at 990. Just last year, in People v. Mack, this Cou1t reaffinned its longstanding jurispn1dence that considers "meaningful notice" actual verbatim notice of the co11tents of a jury note, and that failure to give such notice constitutes a mode of proceedings en·or. \Vhile this Com1 found that counsel who had received meaningful notice is required to object to a court's response or Jack of response to a jury note, it explained that counsel could only be required to make such an objection because he received meaningful notice of the contents of a jury note. People v. Mack, 27 N.Y.3d at 536, Here, the prosecutor is asking the Court to ignore its legal precedent and find that, since the record reflects that defense counsel had notice of the existence of jury notes, counsel received meaningful notice of those notes. The prosecutor adds that, because the court stated that the contents of the 5 unanswered notes contained requests for additional readback, counsel had sufficient meaningful notice of the contents of the notes! In positing that notice of the general nature of the substance of jury notes constitutes meaningful notice, the prosecutor contradicts his primary argument that notice of the existence of notes alone is sufficient, and reinforces how v·ery important it is that counsel receive n1eaningft1l notice of the contents of substantive jury notes. This Court's rule that such notice is achieved by a reading of the notes into the record has been developed and followed because it makes sense; a verbatim record of jury notes is simply the only way to ensure that counsel has received the requisite meaningful notice of those notes. Any rule requiring less than complete notice of substantive jury notes would result in reviewing courts being forced to compare the contents of jury notes with the portion of those notes that was read into the record to determine whether the portion read was sufficient to constitute meaningful notice. This "flexible approach" that the prosecutor suggests should be rejected by this Court, Such haphazard way of dealing 4 Iu addition, t!1e prosecutor elaims, \\ithout auy supporting ev.idence, that counsel 1mew that the "tl1e court planned to accept the verdict wit11out providing the readbacks'j (RB, p.4 !), While the transcript indicates that the court told the parties beforehand that it was goi11g to take the verdict, it did not tell the parties that it planned to do so without inquiring about and/or a11swering the outstanding jury notes (A 1285-1286), 6 with jury notes not only invites chaos but also fails to protect a defendant's right to a fair trial. The prosecutor further claims that, should this Court follow its precedent and grant appellant a new trial, it will be encouraging "deliberate sandbagging" and "flai,'l·ant gamesmanship." (RB, p. 44). In analogizing appellant's situation to that described in People v .. Mack, where counsel had received verbatim, i.e., meaningful notice of the jury notes, the prosecutor ignores the most impo11ant distinction between the two situations. In appellant's case, counsel had no meaningful notice of the jury notes. Since he did not know what questions the notes contained, he could not knowingly have foregone the chance to have input into the cou11's answering those notes. Moreover, as noted above, counsel had no advance knowledge that the court was going to ignore the juty's outstanding notes before accepting the verdict. Counsel was not in a position tt) engage in "sandbagging;'1 11e dld not engage in