The People, Respondent,v.Pamela Hanson, Appellant.BriefN.Y.October 23, 2014APL-2013-00194 To be argued by STEVEN R. BERNHARD (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PAMELA HANSON, Defendant-Appellant. SUPPLEMENTAL REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY STEVEN R. BERNHARD Attorneys for Defendant- Appellant 111 John Street, 9th Floor New York, NY 10038 (212) 693-0085 fax: (212) 693-0878 September 24, 2014 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT THE COURT SHOULD REJECT THE PEOPLE’S INVITATION TO OVERRULE RECENT PRECEDENT AND REPLACE IT WITH AN UNFAIR AND UNWORKABLE RULE THAT WOULD EFFECTIVELY GUT O’RAMA . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 8 -i- TABLE OF AUTHORITIES CASES Matter of Hyde, 15 N.Y.3d 179 (2010) . . . . . . . . . . . . . 6 People v. Caban, 78 A.D.3d 403 (1st Dept. 2010) . . . . . . . 4 People v. Cruz, 14 N.Y.3d 814 (2010) . . . . . . . . . . . . . 3 People v. Levy, 15 N.Y.2d 159 (1965) . . . . . . . . . . . . . 6 People v. O’Rama, 78 N.Y.2d 270 (1991) . . . . . . . . . passim People v. Piccione, 78 A.D.3d 1518 (4th Dept. 2010) . . . . . 3 People v. Ramirez, 15 N.Y.3d 824 (2010) . . . . . . . . . 6, 7 People v. Rudolph, 21 N.Y.3d 497 (2013) . . . . . . . . . 5, 6 People v. Tabb 13 N.Y.3d 852 (2009) . . . . . . . . . . . . . 3 People v. Velasquez, 1 N.Y.3d 44 (2003) . . . . . . . . . 7, 8 People v. Walston, 23 N.Y.3d (2014) . . . . . . . . . . 1, 4, 6 People v. Williams, 21 N.Y.3d 932 (2013) . . . . . . . . . . . 6 STATUTES Criminal Procedure Law §310.30 . . . . . . . . . . . . . passim -ii- COURT OF APPEALS THE STATE OF NEW YORK ---------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PAMELA HANSON, Defendant-Appellant. ---------------------------------------- PRELIMINARY STATEMENT This supplemental reply brief is submitted in response to the Supplemental Brief for Respondent filed on September 9, 2014. ARGUMENT THE COURT SHOULD REJECT THE PEOPLE’S INVITATION TO OVERRULE RECENT PRECEDENT AND REPLACE IT WITH AN UNFAIR AND UNWORKABLE RULE THAT WOULD EFFECTIVELY GUT O’RAMA. In an effort to take advantage of Judge Smith’s concurring opinion in People v. Walston, 23 N.Y.3d 986, 990-91 (2014), the People claim they are asking the Court to overrule its holding that the failure to disclose a jury note’s “full contents” to the defense is a mode of proceedings error (Supp. Br. at v, 2). In actuality, they are asking the Court to overrule its jurisprudence, including its very recent decision in Walston, that the trial court must make a record from which a reviewing court can ascertain whether it met its core C.P.L. §310.30 responsibilities (Supp. Br. at 2-20). The People’s position should be rejected for several reasons. First, accepting it would be highly unfair, placing defendants ignorant of even the existence of a jury note in the impossible “Catch 22" position of having to make a record they cannot make. Second, it would replace a clear, workable rule with an unworkable rule that would effectively gut O’Rama and C.P.L. §310.30. Third, it would offend stare decisis by reversing this Court’s extremely recent jurisprudence without any compelling reason for doing so. Finally, Judge Smith’s concurrence, on which the People rely, cannot fairly be read as supporting their position. In the instant case, there was no record proof that the trial court disclosed even the existence of the jury notes to defense counsel, or ever responded to them. In this situation, the People would move the burden of making a record away from the only entity capable of making it -- the trial court -- and place it instead on a defense attorney with no knowledge of the notes, who is therefore wholly incapable of making a record regarding them. To adopt such a rule would place the defense in an impossible position: a Catch 22 in which it is required to do something based on knowledge it lacks. That would be the height of unfairness. In addition, the People would replace a clear, long-standing, workable rule that is simple to apply with an unworkable mess that would effectively gut O’Rama and C.P.L. §310.30. The People concede that, under §310.30, the court “must give notice” when it 2 receives a jury note (Supp. Br. at 2), and they disavow any desire to vitiate that rule (Supp. Br. at 4 fn 1). Nevertheless, they argue that such notice need not be evident on the record, and that reading jury notes into the record was “merely a recommended procedure” in O’Rama (Supp. Br. at 10-11). The People’s argument is ludicrous. Meaningful appellate review is a critical component of our criminal justice system, and such review is possible in the jury note context only if the record reflects what notice was given. In O’Rama, 78 N.Y.2d 270, 277-78 (1991), the Court explained that marking a jury note as an exhibit and reading it into the record “would ensure a clear and complete record, thereby facilitating adequate and fair appellate review.” In People v. Tabb, 13 N.Y.3d 852, 853 (2009), the Court made even clearer that the trial court must provide record proof that it satisfied §310.30, holding that, “[i]n the absence of 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.” See also People v. Cruz, 14 N.Y.3d 814, 819 (2010)(Lippman, concurring)(the lack of a record delineating how a jury note was dealt with was “precisely the kind of problem that compliance with CPL 310.30 and People v. O’Rama is meant to obviate”); People v. Piccione, 78 A.D.3d 1518, 1519 (4th Dept. 2010)(reversing when there was “no indication in the record that 3 either the prosecutor or defense counsel were even informed of the first note or what action, if any, the court took in response to that note”; the burden was on the trial court to ensure that such a record was made); People v. Caban, 78 A.D.3d 403 (1st Dept. 2010)(responsibility to demonstrate compliance with O’Rama rested with the trial court; thus, reversal was required when “there was no evidence in the record to support an inference, even an intimation,” that the court fulfilled its responsibilities). Most recently, in People v. Walston, supra, 23 N.Y.3d at 990, the Court reiterated that, “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to.” Thus, trial courts now have a clear, easy-to-follow rule to apply: provide notice and document it on the record. As in their main brief, the People attempt to overcome the lack of any record that counsel had notice of the jury notes by asking the Court to speculate that “counsel was shown the notes, but that the court simply failed to place that fact on the record” (Supp. Br. at 7). According to the People, this “may well be” what happened or “may be so in this case” (Supp. Br. at 8), even though there is also no indication that the court ever responded to the jury notes either. The pure speculation in which the People indulge only proves how completely unworkable their proposed rule 4 would be. Instead of being presented with a clear record of precisely what occurred, as the Court’s holdings require, an appellate court would be relegated to guesswork to decide whether the trial court complied with its core responsibilities under C.P.L. §310.30. The People’s proposal would effectively eviscerate O’Rama and C.P.L. §310.30. The People argue that only a violation of the court’s “core responsibilities” should constitute a mode of proceedings error (Supp. Br. at 12). But even if those “core responsibilities” could possibly be defined as narrowly as the People wish, compliance with them would be impossible to enforce without the concomitant requirement that the court make an adequate record to show what it did. Without the record-making requirement, courts would be free to disregard their §310.30 responsibilities and insulate that disregard from review. And courts that provided proper notice, but failed to make a record because one was no longer required, could be subject to collateral attack based on untrue claims that they failed to provide notice. The People acknowledge that, under established stare decisis principles, there must be a “compelling justification” for reversing established precedent (Supp. Br. at 4). They cite People v. Rudolph, 21 N.Y.3d 497, 502 fn* (2013), for this Court’s willingness to overrule its precedent (Supp. Br. at 18-19). But typically, the Court has reversed itself only after the experience 5 of years -- and usually decades -- has shown the wisdom of abandoning its precedent. Rudolph, 21 N.Y.3d 497, overruled a 36- year-old decision, and referred to five of the Court’s precedent- reversing decisions ranging from People v. Levy, 15 N.Y.2d 159 (1965)(overruling a 15-year-old decision) to Matter of Hyde, 15 N.Y.3d 179 (2010)(overruling a 39-year-old decision). Rudolph, 21 N.Y.3d at 502 fn*. Here, the People ask the Court to overrule precedent it reiterated and adhered to only 3 months ago in People v. Walston, supra, 23 N.Y.3d 986. And far from providing any “compelling justification” for doing so, they essentially seek only to insulate violations of O’Rama and C.P.L. §310.30 from appellate review. Finally, Judge Smith’s concurring opinion in Walston fails to support the People’s position. Citing People v. Williams, 21 N.Y.3d 932 (2013), and People v. Ramirez, 15 N.Y.3d 824 (2010), Judge Smith opined that the Court’s “more recent jury note cases, which have taken a flexible approach to the mode of proceedings doctrine,” “may be read as eroding O’Rama’s force as precedent.” In Williams, without advance notice to counsel and with the jury in the courtroom, the court “read the jury note out loud before responding to the jury.” 21 N.Y.3d at 934. Since counsel made no objection “when the error could have been cured,” the Court found a lack of preservation, rather than a mode of proceedings error. Similarly, in Ramirez, although the record was “silent as 6 to whether [the trial court] showed the jury note to counsel as required,” it revealed that counsel had notice of both the note’s contents and the court’s response. 15 N.Y.3d at 825-26. Again, the Court found that counsel’s failure to object rendered the issue unpreserved, and it was not a mode of proceedings error. Thus, Judge Smith’s concurrence suggests that the mode of proceedings doctrine should not apply if the record reveals that counsel had some notice of a jury note, and therefore could easily have protested a §310.30 error. That suggestion is irrelevant to cases like the one at bar, where the record is totally silent as to whether counsel ever had any notice at all of the existence of the jury notes in question, or indeed whether the notes were ever answered. For similar reasons, Judge Smith’s concern about possible gamesmanship is not at issue here. The People argue in the alternative that the Court should remand this case for a “reconstruction hearing, to allow the Supreme Court to specify . . . whether the jury notes at issue were disclosed to defense counsel” (Supp. Br. at 20). As appellant argued in his reply brief, at 6-7, this Court has said that: Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial. People v. Velasquez, 1 N.Y.3d 44, 49 (2003). In contrast, reconstruction “may be appropriate” when a court refused to have 7 proceedings recorded, minutes have been lost, there is a significant ambiguity in the record that requires elucidation, or “it is clear that a proceeding took place that was not transcribed.” 1 N.Y.3d at 49. Stated simply, there is no record in the case at bar to reconstruct and remanding for a reconstruction hearing would be inappropriate. CONCLUSION FOR THE REASONS STATED IN THIS SUPPLEMENTAL REPLY BRIEF AND IN APPELLANT’S MAIN BRIEF AND REPLY BRIEF, THE COURT SHOULD REVERSE APPELLANT’S CONVICTION AND ORDER A NEW TRIAL. Respectfully submitted, LYNN W. L. FAHEY APPELLATE ADVOCATES Attorney for Defendant-Appellant Appellate Advocates 111 John Street -- 9th Floor New York, NY 10038 212-693-0085 By: Steven R. Bernhard Of Counsel Dated: September 24, 2014 New York, New York 8