The People, Respondent,v.Pamela Hanson, Appellant.BriefN.Y.October 23, 2014COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PAMELA HANSON, Defendant-Appellant. To be argued by: LEONARD JOBLOVE (20 Minutes) Kings County Indictment Number 579/2008 APL-20l3-00l94 RESPONDENT'S SUPPLEMENTAL BRIEF LEONARD JOBLOVE RHEA A. GROB Assistant District Attorneys of Counsel September 9, 2014 Telephone: Facsimile: 718-250-2480 718-250-2549 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (7 J 8) 250-2000 TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... ii QUESTION PRESENTED ........................................ v PRELIMINARY STATEMENT ..................................... 1 ARGUMENT - THE DECISION IN PEOPLE v. O'RAMA, 78 N.Y.2d 270 (1991), SHOULD BE OVERRULED INSOFAR AS IT HELD THAT A TRIAL COURT'S FAILURE TO DISCLOSE TO DEFENSE COUNSEL THE FULL CONTENT OF A JURY NOTE CONSTITUTES A "MODE OF PROCEEDINGS" ERROR. .................................. 2 CONCLUSION - FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE'S MAIN BRIEF, THE ORDER OF THE APPELLATE DIVISION AND THE DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. IN THE ALTERNATIVE, THE CASE SHOULD BE REMITTED FOR A RECONSTRUCTION HEARING ...... 21 TABLE OF AUTHORITIES Pages CASES Cancemi v. People, 18 N.Y. 128 (1858) ................. 17 Great Northern Ins. Co. v. Interior Constr. Corp., 7 N. Y. 3d 412 (2006) ................................. 17-18 People v. Agramonte, 87 N. Y.2d 765 (1996) ............ 7, 19 People v. Ahmed, 66 N.Y.2d 307 (1985) ................. 17 People v. Alcide, 21 N.Y.3d 687 (2013) ................ 6, 12 People v. Allen, 92 N.Y.2d 378 (1998) ................. 16 People v. Alvarez, 20 N.Y.3d 75 (2012), cert. denied, 133 S. Ct. 1736, 133 S. Ct. 2004 (2013) ............. 6 People v. Autry, 75 N.Y.2d 836 (1990) ................. 6 People v. Bartolomeo, 53 N.Y.2d 225 (1981) ............ 14 People v. Becoats, 17 N.Y.3d 643 (2011), cert. denied, 132 S. Ct. 1970 (2012) ................ 5, 6 People v. Bing, 76 N. Y.2d 331 (1990) .. ; ............... 12, 14, 19 People v. Brown, 7 N.Y.3d 880 (2006) .................. 7 People v. Duncan, 46 N.Y.2d 74 (1978) ................. 15 People v. Feingold, 7 N. Y. 3d 288 (2006) ............... 18 People v. Gonzales, 56 N.Y.2d 1001 (1982) ............. 15 People v. Hanley, 20 N.Y.3d 601 (2013) ................ 6 People v. Hanson, 100 A.D.3d 771 (2d Dep't 2012), leave granted, 21 N.Y.3d 1016 (2013) ................ 1 People v. Hobson, 39 N.Y.2d 479 (1976) ................ 18 People v. Kadarko, 14 N.Y.3d 426 (2010) ............... 6, 13, 14 ii TABLE OF AUTHORITIES (cont'd) Pages People v. Kelly, 5 N.Y.3d 116 (2005) 6, 7, 17 People v. Kinchen, 60 N.Y.2d 772 (1983) ............... 10 People v. Kisoon, 8 N.Y.3d 129 (2007) . . . . . . . . . . . . . . . . . 12, 15 People v. Lykes, 81 N.Y.2d 767 (1993) . . . . . . . . . . . . . . . . . 13 People v. McLean, 15 N.Y.3d 117 (2010) . . . . . . . . . . . . . . . . 10 Peo121e v. Mehmedi, 69 N. Y. 2d 759 (1987) . . . . . . . . . . . . . . . 17 Peo121e v. O'Rama, 78 N.Y.2d 270 (1991) ................ 12assim Peo121e v. Patterson, 39 N.Y.2d 288 (1976), aff'd, 432 U.S. 197 (1977) .......................... 5, 6,17 Peo121e v. Peque, 22 N.Y.3d 168 (2013) ................. 4, 5 Peo121e v. Register, 60 N.Y.2d 270 (1983) .............. 18 People v. Rivera, No. 117, 2014 N.Y. LEXIS 1360 (N. Y. June 10, 2014) ................................ 6 Peo121e v. Rudol12h, 21 N.Y.3d 497 (2013) ............... 18 Peo121e v. Santana, 78 N.Y.2d 1027 (1991), aff'g 163 A.D.2d 495 (2d Dep't 1990) ................ 19 People v. Session, 34 N.Y.2d 254 (1974) ............... 10 Peo121e v. Smyth, 3 N.Y.2d 184 (1957) .................. 10 Peo121e v. Starling, 85 N.Y.2d 509 (1995) .............. 12-13 Peo121e v. Tabb, 13 N.Y.3d 852 (2009) .................. 11 Peo121e v. Velasquez, 1 N.Y.3d 44 (2003) ............... 10 Peo121e v. Walston, 23 N.Y.3d 986 (2014) ............... 12assim iii TABLE OF AUTHORITIES (cont'd) Pages People v. Williams, 21 N.Y.3d 932 (2013) .............. 12 People v. Wosu, 87 N.Y.2d 935 (1996) .................. 15 People ex reI. Battista v. Christian, 249 N. Y. 314 (1928) ................................. 17 Policano v. Herbert, 7 N. Y.3d 588 (2006) .............. 18 STATUTES C.P.L. § 270.30 ....................................... 19 C.P.L. § 310.30 ....................................... passim C.P.L. § 470.05 ....................................... 18, 19 iv QUESTION PRESENTED Whether the decision in People v. O'Rama, 78 N.Y.2d 270 (1991), should be overruled, to the extent that it held that, when a trial court receives a request fro!l\ a deliberating jury for instruction on the law or a readback of testimony, the court's failure to disclose to defense counsel the full content of the jury's communication constitutes a "mode of proceedings" error. v COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PAMELA HANSON, Defendant-Appellant. Kings County Indictment Number 579/2008 APL-2013-00194 RESPONDENT'S SUPPLEMENTAL BRIEF PRELIMINARY STATEMENT The defendant, Pamela Hanson, is appealing from an order of the Appellate Division, Second Department, dated November 14, 2012, that affirmed a judgment of the Supreme Court, Kings County, convicting her, following a jury trial, of murder and grand larceny, and imposing sentence. See People v. Hanson, 100 A.D.3d 771 (2d Dep't 2012), leave granted, 21 N.Y.3d 1016 (2013) (Smith, J.). On February 7, 2014, the People filed in this Court their main brief in opposition to the defendant's appeal. The People have moved to file this supplemental brief in light of the decision of this Court in People v. Walston, 23 N. Y. 3d 986 (June 12, 2014), which was issued after the People filed their main brief in this case. ARGUMENT THE DECISION IN PEOPLE v. O'RAMA, 78 N.Y.2d 270 (1991), SHOULD BE OVERRULED INSOFAR AS IT HELD THAT A TRIAL COURT'S FAILURE TO DISCLOSE TO DEFENSE COUNSEL THE FULL CONTENT OF A JURY NOTE CONSTITUTES A "MODE OF PROCEEDINGS" ERROR. The defendant, relying on this Court's decision in People v. 0' Rama, 78 N. Y. 2d 270 (1991), claims that the trial court committed a "mode of proceedings" error by allegedly failing to disclose to defense counsel two notes received from the jury during its deliberations. In the People's main brief, the People have argued that this Court should rej ect that claim, because the record does not show that the court in fact failed to disclose those notes to counsel. If this Court would hold that, despite the absence of any showing that the trial court in fact failed to disclose the notes to counsel, O'Rama would require a reversal of the defendant's conviction, then 0' Rama should be overruled insofar as it held a court's failure to comply with the notice requirement of C.P.L. § 310.30 is a "mode of proceedings" error that is not subject to the preservation requirement. Pursuant to C.P.L. § 310.30, when a trial court receives a request from a deliberating jury for instruction on the law or a readback of testimony, the court, before responding to the jury's request, must give "notice to both the people and counsel for the defendant." In People v. O'Rama, 78 N.Y.2d 270 (1991), 2 this Court construed that provision to require notice to counsel of the "actual specific content" of the jury's note. Id. at 277. In O'Rama and a series of decisions that have followed it, this Court has further held that a trial court's failure to comply with its "core responsibilities" under C.P.L. § 310.30 which include the responsibility to provide meaningful notice to counsel of the content of a jury note -- constitutes a "mode of proceedings" error that is exempt from the requirement of preservation. Most recently, in People v. Walston, 23 N.Y.3d 986 (2014), this Court, relying on O'Rama, held in effect that, under C.P.L. § 310.30, not only is a trial court's failure to provide notice to counsel of the content of a jury note a mode of proceedings error, but, in addition, regardless of whether the court actually provides the required notice, the court's failure to document that notice on the record may itself constitute a mode of proceedings error. Thus, in light of Walston, a mode of proceedings error may be found, and reversal may be required, even when a record is silent as to whether the trial court in fact disclosed the jury note to counsel, and, consequently, the record utterly fails to show that there was any violation at all of the notice requirement of C.P.L. § 310.30. Insofar as the decision in O'Rama requires that extraordinary and untenable 3 result, and might be read to require reversal in this case of a conviction for murder, that decision should be overruled. 1 "Under stare decisis principles, a case may be overruled only when there is a compelling justification for doing so." People v. Peque, 22 N.Y.3d 168, 194 (2013) (quotation marks and citations omitted). Four separate reasons, taken together, provide a compelling justification for overruling the mode of proceedings holding of O'Rama. First, by eliminating the requirement of preservation for claims of error regarding the disclosure of jury notes, the O'Rama rule frustrates the important purposes of the preservation requirement. The preservation requirement encourages the parties to a criminal proceeding to make a timely objection to any errors, so that errors can be promptly corrected and the need for retrials can be avoided. Eliminating the preservation requirement for an entire class of errors can have the perverse and counterproductive effect of encouraging a defense attorney to remain silent about an error committed by the trial court, precisely because leaving the error uncorrected will, in the event of a conviction, assure a reversal on appeal. 1 The People are asking this Court to overrule O'Rama only insofar as it held that a violation of the notice requirement of C.P.L. § 310.30 is a mode of proceedings error; the People are not seeking to overrule 0' Rama insofar as it held that the notice that must be given is of the actual specific content of the jury's request. 4 See Peque, 22 N.Y.3d at 183 ("[tJhe salutary purpose of the preservation doctrine" includes "the development of a full record and the efficient resolution of claims at the earliest opportunity"); People v. Becoats, l7 N.Y.3d 643, 651 (2011) (if preservation rule did not apply to claims of duplicitous counts, then defendants, by choosing at trial to let duplicitous indictment stand without obj ection, but making opposite choice on appeal, "might thus obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it"), cert. denied, 132 S. Ct. 1970 (2012); People v. Patterson, 39 N. Y.2d 288, 295 (1976) ("A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State's fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant"), aff'd on other grounds, 432 U.S. 197 (1977); Walston, 23 N.Y.3d at 992 (Smith, J. , concurring) ("Dispensing with the preservation requirement may invite defense counsel to manipulate the system by remaining silent while error is committed, only to complain of it later"). Thus, in determining whether a particular claim of error should be deemed to fall within the mode of proceedings 5 exception to the preservation requirement, this Court apparently sensitive to the concern that allowing certain claims to be raised on appeal without preservation "would open the door to abuse" (Becoats, 17 N.Y.3d at 651) has repeatedly emphasized that the mode of proceedings exception is "very narrow" (People v. Rivera, No. 117, 2014 N.Y. LEXIS 1360, at *4- * 5 [N. Y. June 10, [2005]; Patterson, 2014]; People v. Kelly, 5 N.Y.3d 116, 119 39 N.Y.2d at 295), "tightly circumscribed" (Kelly, 5 N.Y.3d at 120), and "reserved for the most fundamental flaws" (Becoats, 17 N.Y. 3d at 651). In addition, the Court has rejected a claim that an alleged error was a mode of proceedings error when it was "entirely possible" that the failure to object represented a reasonable strategic decision by counsel. See People v. Autry, 75 N.Y.2d 836, 839 (1990). See also People v. Alcide, 21 N.Y.3d 687, 694-96 (2013) (any error in court's participation in readback of testimony was not mode of proceedings error); People v. Hanley, 20 N.Y.3d 601 (2013) (mode of proceedings exception is not applicable to claim that kidnapping count merged with other crime); People v. Alvarez, 20 N.Y.3d 75,81 (2012) (public trial violation is not mode of proceedings error), cert. denied, 133 S. Ct. 1736, 133 S. Ct. 2004 (2013); Becoats, 17 N.Y.3d at 651 (duplicitousness of count is not mode of proceedings error); People v. Kadarko, 14 N.Y.3d 426, 429-30 (2010) (court's delay in reading entirety of jury 6 note may have been error, but was not mode of proceedings error) ; People v. Brown, 7 N.Y.3d 880 (2006) (instructing potential jurors during voir dire on elements of crimes charged was not mode of proceedings error); Kelly, 5 N. Y. 3d at 116 (under circumstances, court officer conducting demonstration in jury room during deliberations, without court's knowledge or approval, was not mode of proceedings error) ; People v. Agramonte, 87 N. Y. 2d 765, 769-71 (1996) (violation of requirement of sequestration of jury, and violation of requirement that alternate jurors be kept separate and apart from regular jurors during deliberations, are not mode of proceedings errors). This case illustrates powerfully the deleterious consequences and potential for abuse that would result from dispensing with the preservation requirement. The record is silent as to whether defense counsel was shown the jury notes, and thus the record is, at the very least, wholly consistent with the conclusion that counsel in fact was shown the notes, but that the court simply failed to place that fact on the record. In the absence of any showing that the notes were not disclosed to counsel, the alleged mode of proceedings error is, as far as can be determined from the record, merely that the court did not document on the record that it showed the jury notes to counsel. In a casein which the court showed the notes 7 to counsel but forgot to document that fact on the record which, as far as can be determined from the record, may well be what happened here -- a defense attorney would have every reason to remain silent rather than to remind the court to mention on the record that the notes were shown. After all, in such a case, defense counsel would have received the full benefit of the court's complete compliance with the notice requirement of C.P.L. § 310.30, but the court's failure to document that notice on the record would, in the event of a conviction, nevertheless guarantee a reversal on appeal. Consequently, counsel would have everything to gain and nothing to lose by leaving uncorrected the court's failure to state on the record that the notes were shown. Indeed, when -- as may be so in this case -- the court's mistake is that, having shown a jury note to counsel, the court merely failed to document that fact on the record, rather than the more substantive mistake of summarizing the note without verbatim disclosure, the potential for strategic silence by defense counsel is at its greatest. When the court has summarized the note without providing verbatim disclosure, defense counsel may, at least in some cases, see a strategic benefi t to requesting and obtaining verbatim disclosure of the content of the note; by contrast, when the court has in fact shown the note to counsel, but has simply neglected to state as 8 much on the record, it is difficult to imagine any possible strategic benefit that would induce a defense attorney to remind the court to make the appropriate record. See Walston, 23 N. Y. 3d at 992 (Smith, J., concurring) ("When a trial judge makes the mistake of paraphrasing or summarizing a jury note, only a foolish defense lawyer will ask the judge to correct the error. The likelihood that knowing the verbatim contents of the note will enable counsel to get an acquittal or a hung jury is extremely small. But if the error remains uncorrected the lawyer has a near guarantee that any conviction will be reversed") . Furthermore, insofar as, in Walston, this Court has held in effect that, when a trial court fails to make a record as to whether counsel was shown the jury notes at issue -- regardless of whether counsel may in fact have been shown the notes -- the court commits a mode of proceedings error, such a holding creates an even greater potential for abuse by defense attorneys and for unjustified reversals of convictions. Such a holding -- that a mode of proceedings error occurs not only when the court fails to disclose a jury note to counsel, but also when the court makes proper disclosure of a note and omits to document that disclosure on the record works a more dramatic and unjustifiable departure from the usual rules of appellate review than does merely dispensing with the preservation requirement. 9 It is a fundamental principle of the appellate process that the appellant has the burden of placing on the record the facts that are necessary to support a potential claim of error, and that, if the record does not include sufficient facts to show that an alleged error actually occurred, then any claim regarding that alleged error cannot be reviewed on direct appeal and instead may be asserted only in a motion to vacate the judgment. See People v. McLean, 15 N.Y.3d 117, 121 (2010) ; People v. Velasquez, 1 N. Y. 3d 44, 47-48 (2003); People v. Kinchen, 60 N.Y.2d 772 (1983) (all cited in People's Main Brief at 26-28); see also People v. Session, 34 N.Y.2d 254, 255-56 (1974) (on motion to vacate judgment, ~[al judgment of conviction is presumed valid, and the party challenging its validity (defendant here) has a burden of coming forward with allegations sufficient to create an issue of fact"); People v. Smyth, 3 N.Y.2d 184, 187 (1957) (after defendant has been convicted, People are not required to assume burden of establishing that what was done was regular ~in the absence of evidence to the contrary") . This Court's statement in O'Rama regarding documentation of compliance with the notice requirement of C.P.L. § 310.30 namely, that substantive written jury communications should be ~read into the record in the presence of counsel," so as to ~ensure a clear and complete record, thereby facilitating 10 adequate and fair appellate review" (0' Rama, 78 N. Y. 2d at 277- 78) -- could reasonably be understood as merely a recommended procedure. But, by elevating that procedure to a requirement solely on the basis of the language of O'Rama itself and with no basis at all in the language of C.P.L. § 310.30 (or in the language of Judiciary Law § 295, which specifies the duty of the trial court to record trial proceedings stenographically [see People's Main Brief at 30-31]) -- and by then characterizing a failure to follow that procedure as a mode of proceedings error (see Walston, 23 N.Y.3d at 990; People v. Tabb, 13 N.Y.3d 852 [2009]), this Court has effectively shifted the obligation to make a sufficient record for appellate review from the appellant to the trial court. The result is to relieve defendants who allege a violation of the notice requirement of C.P.L. § 310.30 from the obligation to show, either by reference to facts in the record or by proof on a motion to vacate the judgment, that such a violation of C.P.L. § 310.30 actually occurred, and instead to allow them to prevail on appeal on the basis of a record, like the record in this case, that shows only that such a violation of C.P.L. § 310.30 mayor may not have occurred. In essence, a defendant is allowed to obtain a new trial merely by showing that the record is incomplete. Insofar as that unreasonable result is compelled by O'Rama, that result further supports the conclusion that O'Rama should be overruled. 11 The second reason why the mode of proceedings holding of O'Rama should be overruled is that, in the 23 years since that case was decided, "the experience of the courts in applying it" has led to "uneven" application of the rule. See People v. Bing, 76 N.Y.2d 331, 338, 342 (1990). This Court has held that some departures from the procedure outlined in 0' Rama for the court's handling of jury notes constitute mode of proceedings errors, while others do not; the Court has stated that a departure from the 0' Rama procedure is a mode of proceedings error only if the trial court fails to fulfill its "core responsibili ties" under C. P. L. § 310.30, and that those core responsibilities are to give counsel meaningful notice of the content of the note as well as to give a meaningful response to the jury's request. Walston, 23 N.Y. 3d at 989-90; People v. Kisoon, 8 N.Y.3d 129, 134-35 (2007). However, the delineation of a trial court's "core responsibilities" under the statute has proven elusive. On the one hand, the procedure recommended in 0' Rama provides that a jury note should be read into the record "before the jury is recalled to the courtroom" (78 N.Y.2d at 277-78), but this Court has held that the preservation requirement applies to a claim that the court erred by failing to disclose the note until after the jury was present. See Alcide, 21 N.Y.3d at 691-94; People v. Williams, 21 N.Y.3d 932 (2013); People v. Starling, 85 N.Y.2d 12 509, 516 (1995); People v. Lykes, 81 N.Y.2d 767 (1993). That holding apparently rests on the fact that C.P.L. § 310.30 requires only that the notice to defense counsel be given before the court gives its response to the jury's request, but does not require that the response be given outside the jury's presence. See Lykes, 81 N.Y.2d at 769-70 (where judge read jury note into record only in presence of jury, ftthe requirements of CPL 310.30 were not violatedN ). On the other hand, this Court has also held that the preservation requirement applies to an apparently meritorious claim that the timing of the trial court's disclosure of a jury note violated the requirements of C.P.L. § 310.30. In People v. Kadarko, 14 N.Y.3d 426 (2010), the defendant claimed that the trial court committed a mode of proceedings error by failing to read to defense counsel verbatim the content of a jury note until after the court had given the jury an instruction in response to the note and the jury had resumed deliberations. Al though, in Kadarko, the trial court clearly violated C. P. L. § 310.30 by delaying disclosure of the full content of the note until after the court had given its response to the jury, this Court held that the trial court's procedure did not constitute a mode of proceedings error. Id. at 429-30. By contrast, in People v. Walston, 23 N.Y.3d 986 (2014), this Court held in effect that the trial court's failure to 13 document on the record notice to counsel of the content of a jury note constituted a mode of proceedings error, even though C.P.L. § 310.30 contains no requirement that the court document that notice on the record. In short, in attempting to differentiate between alleged errors that violate a trial court's "core responsibilities" under C.P.L. § 310.30 with respect to notes from the jury, and alleged errors that do not, this Court has held that a procedure that constitutes a clear violation of the statute is not a mode of proceedings error (see Kadarko), but that a procedure namely, a failure to document on the record whether notice was given -- that does not violate the requirements of the statute at all is a mode of proceedings error (see Walston). That paradoxical result demonstrates the difficulty in applying the mode-of-proceedings rule of O'Rama consistently and supports the conclusion that the rule should be abandoned as unworkable. See Bing, 76 N.Y.2d at 338, 342, 347, 350 (abandoning rule of People v. Bartolomeo, 53 N.Y.2d 225 [1981], as "unworkable," in part because "the experience of the courts in applying it" led to "uneven" application of rule). The third reason why the mode-of-proceedings holding of O'Rama should be overruled is that it rests on a weak foundation. This Court has identified the trial court's "core responsibilities" under C.P.L. § 310.30 as "meaningful notice" 14 to counsel of the content of a jury note and a "meaningful response" to the jury's request. Walston, 23 N.Y.3d at 989; Kisoon, 8 N.Y.3d at 134. The ultimate purpose of the requirement of meaningful notice to counsel is to enhance the likelihood that the court will give "the fairest and least prejudicial response" to the jury's note. See a'Rama, 78 N.Y.2d at 277. In a'Rama, the Court held that a failure to fulfill the core responsibility to give meaningful notice to counsel of the specific content of the jury's request is not preservation requirement. Walston, 23 N.Y.3d at 989. a'Rama, 78 N.Y.2d subj ect to the at 279; see But this Court has also repeatedly held that a claim regarding the adequacy of the court's response to a jury note is subject to the preservation requirement. See People v. Wosu, 87 N.Y.2d 935 (1996); N.Y.2d 1001 (1982); People v. Duncan, People v. Gonzales, 56 46 N.Y.2d 74,80 (1978) (each holding that defendant failed to preserve claim regarding correctness of trial court's supplemental instruction). Given that the notice requirement of C.P.L. § 310.30 is incidental to the primary purpose of increasing the likelihood of a meaningful response to the jury's request, it is incongruous to hold that, on the one hand, a claim that the court did meaningful not follow the proper response to a jury 15 procedure note is to facilitate a not subj ect to preservation, but, on the other hand, a claim that the court actually failed to give a meaningful response is subject to preservation. Indeed, that anomaly would yield the absurd result that, if, on the one hand, a court, without objection, gave counsel a summary (but not a verbatim account) of a jury note, and proceeded to give the jury a model response to their request, then preservation would not apply and the defendant would be entitled to reversal; but if, on the other hand, a court gave counsel a verbatim account of a jury note, and proceeded, without objection, to give the jury an inadequate response to their request, then preservation would apply and the defendant would not be entitled to reversal. Thus, the holding of O'Rama that the preservation rule does not apply to a claim that the notice requirement of C.P.L. § 310.30 was violated cannot easily be reconciled with the settled principle that the preservation rule generally does apply to a claim that a supplemental jury instruction or any other jury instruction was erroneous. See People v. Allen, 92 N.Y.2d 378, 384 (1998) (rej ecting interpretation of statute that would produce nan illogical result"). Moreover, a failure to comply with the notice requirement of C.P.L. § 310.30 or with the procedure specified in O'Rama cannot reasonably be equated with errors that ngo the essential validity of the process and are so fundamental that the entire 16 trial is irreparably tainted" (Kelly, 5 N. Y. 3d at 119-20), and that consequently have been identified as mode of proceedings errors: a trial by a jury of less than 12 members (Cancemi v. People, 18 N.Y. 128, 135-39 [1858]); prosecution for an infamous crime in the absence of an indictment by a grand jury (People ex reI. Battista v. Christian, 249 N.Y. 314, 318-21 [1928]); shifting the burden of proof to the defendant (Patterson, 39 N.Y.2d at 296); a judge's delegation of an essential judicial function to a law secretary (People v. Ahmed, 66 N. Y. 2d 307, 310-11 [1985]); and a violation of the defendant's right to be present when the court gives the jury a substantive instruction on the law (People v. Mehmedi, 69 N.Y.2d 759 [1987]). Rather, when a trial court paraphrases or summarizes a jury note to defense counsel, rather than disclosing the content verbatim or when the court shows the note to counsel but neglects to document that disclosure on the record at most, "fail [s] to adhere to a statutorily the court, grounded procedural protection" (see Kelly, 5 N. Y. 3d at 120), and the preservation requirement should apply. There is a fourth reason why the mode-of-proceedings holding of O'Rama should be overruled. In many cases, a rationale for adhering to precedent is the reliance placed on that precedent by parties or by lower courts. See Great Northern Ins. Co. v. Interior Constr. Corp., 7 N. Y. 3d 412, 419- 17 20 (2006); People v. Hobson, 39 N.Y.2d 479, 489 (1976). But that rationale is inapplicable to the question of whether the mode-of-proceedings holding of O'Rama should be overruled, because that holding concerns purely a rule of appellate review, and thus is not relied upon by police officers, lawyers, or trial judges. Consequently, a decision to overrule that holding of O'Rama would not be disruptive to the law in the way that overruling some other precedents could be. See Walston, 23 N.Y.3d at 992 (Smith, J., concurring) ("It is not clear. that anyone can legitimately rely on the rule that O'Rama error may be raised on appeal even when not obj ected to below"); cf. Policano v. Herbert, 7 N.Y.3d 588, 604 (2006) (before People v. Feingold, 7 N.Y.3d 288 [2006], overruled People v. Register, 60 N.Y.2d 270 [1983], "[f]or two decades prosecutors relied on Register's objectively determined degree-of-risk formulation when making their charging decisions") . Finally, the fact that the mode-of-proceedings holding. of 0' Rama rests on the construction of a statutory provision namely, C.P.L. § 470.05(2) (see O'Rama, 78 N.Y.2d at 279) does not weigh against overruling that holding. This Court has, in appropriate cases, overruled decisions that, like O'Rama, rest on statutory construction. See People v. Rudolph, 21 N.Y.3d 497, 502 n.* (2013) (enumerating five other decisions, besides Rudolph, in which this Court overruled cases 18 interpreting statutes); cf. Bing, 76 N. Y. 2d at 338 (noting an additional rationale to revisit precedent on constitutional issues, "where legislative change is practically impossible"). Indeed, this Court has overruled a decision insofar as that decision had suggested that a particular error namely, a violation of the requirement that alternate jurors be kept separate from regular jurors during deliberations was not subject to the preservation requirement. See Agramonte, 87 N.Y.2d at 770-71 (to the extent that this Court's affirmance in People v. Santana, 78 N.Y.2d 1027 [1991], aff'g 163 A.D.2d 495 [2d Dep't 1990], suggested that violations of C.P.L. § 270.30 need not be preserved to present question of law, "it should no longer be followed"). And, given that C.P.L. § 470.05(2) provides that a contemporaneous objection in the trial court is necessary to preserve a question of law for appellate review, there is little reason to believe that a rejection of the mode- of-proceedings holding of O'Rama would be contrary to the legislative intent underlying that statutory provision. * * * In this case, the defendant argues that, in light of 0' Rama, the alleged failure of the trial court to disclose two jury notes to defense counsel requires reversal of the defendant's conviction of murder and grand larceny, despite the absence of any showing that the court in fact failed to disclose 19 the notes to counsel. If, as the defendant argues, O'Rama would require a reversal of her conviction, then, for all of the reasons stated above, that decision should be overruled insofar as it held that a court's failure to comply with the notice requirement of C.P.L. § 310.30 is a mode of proceedings error that is not subj ect to the preservation requirement. In that event, this Court should reject the defendant's claim regarding an alleged violation of the notice requirement of C.P.L. § 310.30, on the ground that the record does not show that the trial court failed to disclose the notes to counsel. In the alternative, if this Court declines to overrule 0' Rama, and if the Court does not reject the defendant's claim for the reasons set forth in the People's main brief, then, as the People have argued in their main brief (see People's Main remitted for a Brief at 4, 43) , the case should be reconstruction hearing, to allow the Supreme Court to specify on the record whether the jury notes at issue were disclosed to defense counsel. If defense counsel in fact was shown the notes -- a conclusion that is entirely consistent with the record, and that, if true, could easily be established at a reconstruction hearing and the trial court thus fully complied with the notice requirement of C.P.L. § 310.30, then a murder conviction should not be reversed merely because the court forgot to document that fact on the record. 20 CONCLUSION FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE'S MAIN BRIEF, THE ORDER OF THE APPELLATE DIVISION AND THE DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. IN THE ALTERNATIVE, THE CASE SHOULD BE REMITTED FOR A RECONSTRUCTION HEARING. Dated: Brooklyn, New York September 9, 2014 LEONARD JOBLOVE RHEA A. GROB Assistant District Attorneys of Counsel Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County 21