The People, Respondent,v.Pamela Hanson, Appellant.

Brief

N.Y.October 23, 2014

APL-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. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY STEVEN R. BERNHARD Attorneys for Defendant- Appellant 2 Rector Street, 10th Floor New York, NY 10006 (212) 693-0085 fax: (212) 693-0878 February 21, 2014 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT SINCE THERE IS AN ABSENCE OF RECORD PROOF THAT THE TRIAL COURT COMPLIED WITH ITS CORE RESPONSIBILITIES UNDER C.P.L. §310.30 AND PEOPLE V. O’RAMA, 78 N.Y.2d 270 (1991), A MODE OF PROCEEDINGS ERROR OCCURRED REQUIRING REVERSAL (PEOPLE V. TABB, 13 N.Y.3d 852 [2009]) . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 8 -i- TABLE OF AUTHORITIES CASES People v. Alcide, 21 N.Y.3d 687 (2013) . . . . . . . . . . 2, 5 People v. Cruz, 14 N.Y.3d 814 (2010) . . . . . . . . . . . . . 3 People v. Kisoon, 8 N.Y.3d 129 (2007) . . . . . . . . . . . . . 2 People v. O’Rama, 78 N.Y.2d 270 (1991) . . . . . . . . . passim People v. Raventos, 199 A.D.2d 429 (2d Dept. 1993) . . . . . . 7 People v. Tabb 13 N.Y.3d 852 (2009) . . . . . . . . . . . 1, 5 People v. Thompson, 30 A.D.3d 198 (1st Dept. 2006) . . . . . . 6 People v. Valentine, 7 A.D.3d 275 (1st Dept. 2004) . . . . . . 6 People v. Velasquez, 1 N.Y.3d 44 (2003) . . . . . . . . . 4n, 6 People v. Williams, 21 N.Y.3d 932 (2013) . . . . . . . . . . . 5 STATUTES Criminal Procedure Law §310.30 . . . . . . . . 1, 2, 4, 5, 6, 7 -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 brief is submitted in reply to the Brief for Respondent filed on February 6, 2014. ARGUMENT SINCE THERE IS AN ABSENCE OF RECORD PROOF THAT THE TRIAL COURT COMPLIED WITH ITS CORE RESPONSIBILITIES UNDER C.P.L. §310.30 AND PEOPLE V. O’RAMA, 78 N.Y.2d 270 (1991), A MODE OF PROCEEDINGS ERROR OCCURRED REQUIRING REVERSAL (PEOPLE V. TABB, 13 N.Y.3d 852 [2009]). The People have abandoned their Appellate Division arguments that the two jury notes in question, marked as court exhibits and found in the Supreme Court file, are not part of the record on appeal and never found their way to the judge. Rather, the prosecution’s argument relies on the “presumption of regularity” to speculate that the trial court complied with the requirement of C.P.L. §310.30 and “inform[ed] defense counsel of the ‘actual specific content’ of the jury’s request” off-the-record at some unknown time (Respondent’s Brief, at 22). The prosecutor acknowledges that giving defense counsel notice of the content of a jury note is “a ‘core’ responsibility of the trial court under C.P.L. §310.30,” but decries the notion that recording such notice on the record is necessary. Rather, the People claim that People v. O’Rama, 78 N.Y.2d 270 (1991), “merely set out a recommended procedure” (Respondent’s Brief, at 31). Not so. In People v. Kisoon, 8 N.Y.3d 129, 134 (2007), the Court noted that, in O’Rama, it “outlined the ... procedure for dealing with jury notes: ... it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel” (emphasis added). Six years later, in People v. Alcide, 21 N.Y.3d 687, 692 (2013), in discussing the court’s “core responsibilities” pursuant to C.P.L. §310.30, the Court said: [a] trial judge generally fulfills this core responsibility by following the procedure endorsed in O’Rama, which requires submission of a jury inquiry to the trial judge in writing, after which the judge marks the written inquiry as a court exhibit; reads it into the record in counsel’s presence and before the jury is recalled to the courtroom (emphasis added) .... Thus, reading a jury note into the record in counsel’s presence is a requirement of the O’Rama protocol, not merely a suggestion. The People’s reliance on a presumption of regularity to speculate that the trial court properly fulfilled one aspect of the O’Rama protocol -- giving notice to defense counsel -- is at odds 2 with their acknowledgment that the court completely failed to satisfy another part of the same protocol -- reading the note into the record. One cannot fairly presume that a proceeding was regular when it was patently, and concededly, irregular. The People’s position unfairly places the defense in a “Catch 22,” requiring counsel to protest something that he was never properly informed had occurred, and most likely knew nothing about. As the chief judge said in his concurring opinion in People v. Cruz, 14 N.Y.3d 814, 819 (2010), [t]he fundamental problem ... is that there is no record as to how the jury note ... was dealt with. This is precisely the kind of problem that compliance with CPL 310.30 and People v. O’Rama is meant to obviate .... Here, the People create a complex scenario as to what “may” have happened below, built entirely on speculation. They speculate that “defense counsel was shown the notes,” that the jury reached a verdict before the court reporter located the readback, and that counsel did not object because Detective Moss’s testimony was “unfavorable to defendant” (Respondent’s Brief, at 24-26). Of course, the People make no effort to explain why they failed to object to the jury’s request for such purportedly pro-prosecution evidence being ignored. The obvious reason for neither side addressing the unanswered notes is that the court never revealed their existence. In any event, had the O’Rama protocol been 3 followed, there would be no need for speculation on top of speculation. Relying on the entirely inapplicable presumption of regularity, the People fault appellant for failing to “overcome” that presumption “by substantial evidence” (Respondent’s Brief, at 22). But it is the trial court’s responsibility, pursuant to O’Rama, to make a record regarding how a note is handled. If the court could satisfy O’Rama without making any record whatsoever of doing so, C.P.L. §310.30 would have no meaning. Nor would there be any appellate review of O’Rama error, for the People could always speculate, in every case, that the trial court disclosed the note in an off-the-record proceeding. This result would be absurd.1 Accordingly, the crux of the People’s argument -- that appellant is required to point to facts in the record that prove that the trial court did not comply with C.P.L. §310.30 in an off- the-record proceeding -- is incorrect. Rather, the correct rule is that the record must affirmatively show that the trial court afforded counsel meaningful notice of the note and the opportunity 1The People rely on People v. Velasquez, 1 N.Y.3d 44 (2003), in arguing for a presumption of regularity that appellant must overcome by substantial evidence. But Velasquez involved alle- gations of Antommarchi violations and claimed absences at sidebar, a far from analogous situation. The Court has never promulgated a specific protocol to be followed by a trial court for a valid Antommarchi waiver or sidebar conferences. It is usually the court reporter, not the judge, who notes what parties are present. Indeed, the Court said, “there is no requirement that the Judge conduct a pro forma inquisition” in accepting a waiver. 1 N.Y.3d at 49. 4 to suggest a response. Otherwise, an O’Rama error has occurred and, as the Court held in People v. Tabb, 13 N.Y.3d 852 (2009): In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error [has] occurred requiring reversal. 13 N.Y.3d 852 (emphasis added). It is the People who must point to record facts demonstrating that the trial court complied with its core responsibilities under O’Rama. Here, since the People do not contest that there is no mention of the notes in question on the record, they have failed to make their case, not appellant. Trial counsel cannot object to something of which he or she is unaware. This is the difference between the instant case and cases such as People v. Alcide, supra, 21 N.Y.3d 687, and People v. Williams, 21 N.Y.3d 932 (2013). In Alcide and Williams the defendant learned of the notes, had an opportunity to object, but did not do so; thus, there was a lack of preservation. Here, appellant had no such opportunity. Hence, in the instant case, the error was a mode of proceedings error allowing review without preservation. The People argue both that the Court should not order a reconstruction hearing (Respondent’s Brief, at 33) and that, unless it rejects appellant’s claim outright, it should (Respondent’s Brief, at 21 & 43). Here, outright reversal, not remand for a reconstruction hearing, is appropriate. 5 In People v. Velasquez, supra, 1 N.Y.3d at 49, a case concerning the right to be present at sidebar conferences, this Court explained: 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. In contrast, reconstruction “may be appropriate” when a court refused to have 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. Precisely the same rule should apply here, where the record is “simply insufficient to establish facts necessary to meet” the trial court’s burden of following the O’Rama protocol. Reconstruction is not available to revive bench conferences, unrecorded colloquies, and the like, that the parties deliberately conducted off the record, or to give anyone a second bite at establishing a record that easily could have been created the first time around. See, e.g., People v. Thompson, 30 A.D.3d 198, 199 (1st Dept. 2006)(rejecting request for a reconstruction hearing to determine whether appellant was excluded from several unrecorded bench conferences); People v. Valentine, 7 A.D.3d 275, 276 (1st Dept. 2004)(reconstruction hearings should not be routinely ordered where the record is simply insufficient to establish facts 6 necessary to show that defendant was absent from a material stage of the trial); People v. Raventos, 199 A.D.2d 429, 430 (2d Dept. 1993)(appellate court has no obligation to direct further proceedings in order to allow new facts to be injected into the record to allow a legal argument for which there is an insufficient record for it to be reviewed). In short, there is no record in the case at bar to reconstruct. Nothing was placed on the record below concerning the notes in question in this case. *** Since there is no record proof that the trial court complied with its core responsibilities under C.P.L. §310.30, a mode of proceedings error occurred and the conviction should be reversed and the case remitted for a new trial. 7 CONCLUSION FOR THE REASONS STATED ABOVE AND IN APPELLANT’S MAIN 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 2 Rector Street -- 10th Floor New York, NY 10006 212-693-0085 By: Steven R. Bernhard Of Counsel Dated: February 21, 2014 New York, New York 8