The People, Respondent,v.Lawrence Parker, Appellant.BriefN.Y.Mar 20, 2018ffil!il! ~THE I u LEGAl •:11 AID Criminal Appeals Bureau 199 Water Street New York, NY \0038 T (212) 511-3564 www.legal-aid.org ~ · ill SOCIETY IHCJ • .·' twJ Direct Dial: (212) 571-3343 Direct Fax: (646) 6164343 E-mail: LMaddalo@legal-aid.org September 28, 2016 Honorable Janet DeFiore Chief Judge New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People v. Parker(Lawrence), APL-2016-00050 Your Honor: Blaine (Fiu) V. Fogg P1·esident Seymour W. James, Jr. Attorney-in-Chief Justine M. Luongo Altorney-in-Ciwrge Criminal Practice Appellant Lawrence Parker is requesting permission to file a reply to the prosecutor's Letter in Opposition to appellant's request for relief in this case. In accordance with section 500.ll(e) of the Court of Appeals Rules of Practice (the Rules), the reply is enclosed herein. As the purpose of this reply is to respond to specific arguments made by the prosecutor, the facts will not be repeated here. CONTRARY TO THE PROSECUTOR'S CLAIM, APPELLANT HAS RAISED AN ISSUE OF LAW, WHERE THE LOWER COURTS ERRED IN FINDING THAT APPELLANT FLED THE APPROACHING POLICE, WHO WENT BEYOND THE PERMISSIBLE LEVEL OF INTRUSION WHEN THEY SEIZED AND SEARCHED HIM. As explained in appellant's original submission to this Court (dated April 18, 2016), appellant is not contesting the lower courts' factual finding that the police officers had a founded suspicion when they approached appellant and his co-defendant Mark Nonni. As such, appellant has presented this Court with a pure legal question of whether the police improperly went beyond the permissible level of intrusion when they chased, stopped, and searched appellant. Moreover, while the prosecutor alleges that both appellant's brisk walking away and Nonni's running in a different direction are "flight," that characterization is contrary to this Court's ruling in People v. Moore, 6 N.Y.3d 496, 500 (2006): September 28, 2016 Page2 "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) !d. at 569-570. The prosecutor, in addition to misstating this Court's jurisprudence by characterizing appellant's walking away as flight, surreptitiously introduces the doctrine of "inevitable discovery" by speculating that the officers, had they merely followed appellant (as permitted by Moore) would have seen the sledgehammer in appellant's open backpack and would have then had the requisite reasonable suspicion to stop him. That argument was not raised in in the Appellate Division, and so is not properly before this Court. C.P.L. §470.35(1). Moreover, that argument is based on a fanciful scenario concocted by the prosecutor. As such it fails; both the lower courts and this Court are required to decide the propriety of police conduct in a given case on the law as it applies to the actual facts of that case. Here, as explained in appellant's initial submission and uncontested by the prosecutor, the police officer did not merely follow appellant; he chased him. According to his testimony, he saw the sledgehammer in appellant's backpack after he "caught up" with him. Whatever imagined facts the prosecutor may wish occurred, the facts that did occur were that the officer chased appellant without the requisite reasonable suspicion. 1 The prosecutor attempts to discount the Appellate Division's erroneous finding that the police had reasonable suspicion to stop and search appellant based on Nonni' s flight because the court explained that ruling in a footnote. Wherever in the opinion it stated its ruling, the Appellate Division was clear that it considered Nonni's running away from the police in finding that the 1 Since the officer, in fact, chased and tackled appellant, there is no need to detennine whether the officer would have had the requisite reasonable suspicion to stop and search appellant had the officer observed a portion of a sledgehammer in appellant's backpack without chasing him, where the officers had no information regarding its use or threatened use in the commission of the crime. September 28,2016 Page 3 officers had the requisite reasonable suspicion to stop and search appellant. The majority noted that appellant's "brisk" walking away, coupled with the headlong flight of Nonni, with whom he had been walking, created a reasonable suspicion and "justified the police in pursuing and forcibly stopping him." "People v. Nanni, People v. Parker, 135 A.D.3d 52, 57, fn. 3 (1" Dept. 2015). While trying to discount that the Appellate Division considered Nonni's conduct in finding that the police had reasonable suspicion to stop and search appellant, the prosecutor justifies any such consideration by using the term "totality of the circumstances." However, neither of the prosecutor's cited cases (People v. Johnson, Ill A.D.3d 469, 469-470 (1" Dept. 2013) and People v. Allen, 42 A.D.3d 331, 332 (P' Dept. 2007)) presents a factual scenario that is in any way analogous to appellant's case. In both Johnson and Allen, the defendant himself acted in a way that raised the permissible level of police intrusion. Moreover, in each case, the defendants interacted in a way that aroused police suspicion. Both the Johnson and the Allen co-defendants interacted by making what appeared to be a surreptitious transfer of an object. Here, as noted in appellant's original submission, appellant and Nonni did not speak, pass any objects, or interact in any way; in fact, they ran in opposite directions. The "totality of the circumstances" did not raise the permissible level of police intrusion. Appellant merely exercised his right to be let alone when the police approached with, at most, a founded suspicion that criminal activity was afoot. This Court should not alter the rule set forth in People v. Moore and allow Nonni's independent actions to raise the permissible level of intrusion as to appellant. Moore at 500. 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. As discussed in appellant's supplemental submission, dated June 20, 2016, 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 repeatedly held that meaningful notice is provided where the record reflects that counsel has been informed of the verbatim contents of the note. People v. Mack, 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 September 28, 2016 Page4 (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. Walston 23 N.Y.2d 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 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 O'Rama error of this nature (citing People v. Tabb, 13 N.Y.3d 852). As recently as three months ago, in People v. Mack, this Court reaffirmed its longstanding jurisprudence that considers "meaningful notice" actual verbatim notice of the contents of a jury note, and that failure to give such notice constitutes a mode of proceedings error. While this Court found that counsel who had received meaningful notice is required to object to a court's response or lack 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 arguing that notice of the existence of a note constitutes meaningful notice, despite a lack of record showing that counsel had any notice at all of the contents of the note. The prosecutor claims that counsel "knew how the court planned to respond to the notes," because the court mentioned that it would continue "the requested readbacks" after lunch. (Prosecutor's Letter in Opposition, p.l8). That argument is not a logical inference from the court's statement. It is mere speculation, based on a lack of understanding of counsel's role in providing valuable input into a court's response to a jury note. Counsel often suggests to the court the nature and extent of testimony that is reread to the jury in response to a request for readback2 2 Interestingly, the prosecutor acknowledges that counsel has not received meaningful notice where a court has paraphrased a jury note.(Prosecutor's Letter in Opposition, p. 19). The prosecutor is thus asking this Court to find that knowledge of no content of a jury note is more notice than knowledge of some content of the note. September 28, 2016 Page 5 The prosecutor also claims that a finding of a mode of proceedings error in this case will "incentivize" ~~future gamesmanship" Again, that argument shows a lack of understanding a defense counsel's role at trial; counsel's goal is to gain an acquittal for his client; counsel provides input into a court's response to a jury note to help persuade the jury to grant that acquittal. A reversal on appeal and a new trial, with its attendant problems created by the additional passage of time, is not an equivalent outcome. As with his other claims, the prosecutor's argument that the jury's announcement that it had reached a verdict constituted an "implicit withdrawal" of the requests made in its two unanswered notes is contrary to prevailing New York law. (Prosecutor's Letter in Opposition, p. 21). While the prosecutor develops a lengthy analysis of the prejudice requirement discussed in People v. Agosto, 73 N.Y.2d 963, 966-967(1989), that principle was overruled by this Court in People v. Silva, 24 N.Y.3d at 300, fu.l: "Nor are we persuaded by the dissent's reliance on pre-O'Rama cases that imposed a "serious prejudice" requirement (citations omitted)." Moreover, that principle only applies where there has been "meaningful notice" of the note(s) in question. As discussed above and in appellant's earlier submission, here the record does not reflect that counsel received the requisite meaningful notice3 As such, since this case presents a mode of proceedings error, "harmless error" analysis does not apply. People v. Mack at 538 (citations omitted). Finally, there is no basis for the prosecutor's request that this court remand this case for a reconstruction hearing. As this Court set forth in People v. Tabb, absent "record proof' that the trial court complied with its "core responsibilities" under C.P.L. §310.30, a mode of proceedings error occurred, requiring reversal" (citations omitted). !d. at 853. Moreover, while the prosecutor claims that the record here is "ambiguous," (Prosecutor's Letter in Opposition, p. 23) the record is, in fact, quite clear, and fully complete. There is no "record proof' that counsel received "meaningful notice" of the 3 Additionally, the filets in this case are not analogous to those in Agosto, where the delay in the court's response note did not concem the charges or evidence, and where the delay was approximately 20 minutes. Here, the jury sent to the court the two unanswered notes before noon, while it sent the note indicating that it had reached a verdict at 2:31 p.m. (Court's Exhibit 10, Supreme Court File). September 28, 2016 Page 6 unanswered jury notes.4 As such, the trial court committed a mode of proceedings error, requiring reversal of appellant's conviction.5 Accordingly, for the reasons stated above and in appellant's earlier submissions, this Court should vacate the judgment, reverse the conviction, and remand the case for a new trial, to be preceded by an independent source hearing. Sincerely, .... ,. :; "'(} ,"1 ll ( 1"\Jl_.../ Lorraine Maddalo I Attorney for Appellant Lawrence Parker cc: Ron. Darcel D. Clark Bronx County District Attorney 198 East 161 st Street Bronx, NY 10451 Attn.: Ryan Mansell 4 lfanything, all indications are that counsel did not receive such notice: as the prosecutor concedes, counsel acknowledged on the record that he saw the first jury note (requesting exhibits) and the note announcing a verdict, but d id not so acknowledge seeing the notes in question. 5 In appellant's case, a reconstruction hearing is virtually impossible, as his trial attorney, Mr. Patrick Bruno, is listed as deceased in the Attorney Directory of the New York State Uniform Court System's website.