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. 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 September 27, 2013 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS Introduction . . . . . . . . . . . . . . . . . . . . . . 3 The Trial Evidence . . . . . . . . . . . . . . . . . . . 4 Summations . . . . . . . . . . . . . . . . . . . . . . . 9 Deliberations and Verdict . . . . . . . . . . . . . . . 10 The Appellate Division Decision . . . . . . . . . . . . 11 ARGUMENT THE TRIAL COURT VIOLATED PEOPLE V. O’RAMA, 78 N.Y.2d 270 (1991), AND C.P.L. §310.30 BY ENTIRELY FAILING TO DISCLOSE OR RESPOND TO JURY NOTES REQUESTING A READBACK, WHICH WERE MARKED AS COURT EXHIBITS AND PLACED ON THE EXHIBIT LIST AND IN THE SUPREME COURT FILE . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 22 ADDENDUM Appellant’s Brief to this Court in People v. Martin, 8 N.Y.3d 129 (2007) Cover of Brief . . . . . . . . . . . . . . . . . . . 2 Page 5 of Brief . . . . . . . . . . . . . . . . . . 3 Page 6 of Brief . . . . . . . . . . . . . . . . . . 4 -i- Defendant-Respondent’s Brief to this Court in People v. Martin, 8 N.Y.3d 129 (2007) Cover of Brief . . . . . . . . . . . . . . . . . . . 5 Page 4 of Brief . . . . . . . . . . . . . . . . . . 6 Page 9 of Brief . . . . . . . . . . . . . . . . . . 7 -ii- TABLE OF AUTHORITIES CASES People v. Ahmed, 66 N.Y.2d 307 (1985) . . . . . . . . . . . 21 People v. Bobadilla, 254 A.D.2d 493 (2d Dept. 1998) . . . . 15 People v. Caban, 78 A.D.3d 403 (1st Dept. 2010) . . . . . . 14 People v. Carrero, 140 A.D.2d 533 (2d Dept. 1988) . . . . . 15 People v. Crampe, 17 N.Y.3d 469 (2011) . . . . . . . . . . 2, 17 People v. Flores, 282 A.D.2d 688 (2d Dept. 2001) . . . . . . 20 People v. Hanson, 100 A.D.3d 771 (2d Dept. 2012) . . . . 11, 16 People v. Harrison, 85 N.Y.2d 794 (1995) . . . . . . . . . . 19n People v. Hernandez, 94 N.Y.2d 552 (2000) . . . . . . . . . 21 People v. Kendzia, 64 N.Y.2d 331 (1985) . . . . . . . 2, 17, 18 People v. Kelly, 5 N.Y.3d 118 (2005) . . . . . . . . . . . . 20 People v. Khalek, 91 N.Y.2d 838 (1997) . . . . . . . . . . . 20 People v. Kisoon, 8 N.Y.3d 129 (2007) . . . . . 2, 12, 18, 19, 21 People v. Lourido, 70 N.Y.2d 428 (1987) . . . . . . . . . . 14 People v. Malloy, 55 N.Y.2d 296 (1982) . . . . . . . . . . . 14 People v. Martin, 8 N.Y.3d 129 (2007) . . . . . . 2, 18, 19, 21 People v. O’Rama, 78 N.Y.2d 270 (1991). 2, 12, 13, 14, 15, 19n, 20 People v. McNeil, 228 A.D.2d 620 (2d Dept. 1996) . . . . . . 14 People v. Piccione, 78 A.D.3d 1518 (4th Dept. 2010) . . . . 13 People v. Providence, 2 N.Y.3d 579 (2004) . . . . . . . 16, 17 -iii- People v. Smith, 248 A.D.2d 413 (2d Dept. 1998) . . . . . . 14 People v. Tabb 13 N.Y.3d 852 (2009) . . . . . . . . . . 13, 21 People v. Valerio, 141 A.D.2d 585 (2d Dept. 1988) . . . . . 15 People v. Velasquez, 1 N.Y.3d 44 (2003) . . . . . . . . . . 19n People v. Vivenzio, 62 N.Y.2d 775 (1984) . . . . . . . . . . 16 STATUTES AND CONSTITUTIONS Criminal Procedure Law §30.30 . . . . . . . . . . . . . . . 17 Criminal Procedure Law §310.30 . . . . . . 2, 11, 12, 14, 15, 21 Criminal Procedure Law §450.90(1) . . . . . . . . . . . . . . . 1 U.S. Const. Amend VI . . . . . . . . . . . . . . . . . . . . . 3 U.S. Const. Amend XIV . . . . . . . . . . . . . . . . . . . . 3 N.Y. Const. Art. I, §6 . . . . . . . . . . . . . . . . . . . . 3 -iv- COURT OF APPEALS THE STATE OF NEW YORK ---------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PAMELA HANSON, Defendant-Appellant. ---------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, granted July 10, 2013, appeal is taken from an order of the Appellate Division, Second Department, entered November 14, 2012, affirming a judgment of the Supreme Court, Kings County, rendered on June 22, 2009, convicting appellant, after trial, of murder in the second degree and grand larceny in the fourth degree, and sentencing her to concurrent prison terms of 23 years to life and 2 to 4 years. On August 22, 2013, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. Appellant is currently incarcerated pursuant to this judgment. No stay has been sought. There were no codefendants in the court below. This Court has jurisdiction pursuant to C.P.L. §450.90(1) to entertain this appeal and review the issues raised. The trial court’s failure to disclose the contents of jury notes are mode of proceedings errors. People v. O’Rama, 78 N.Y.2d 270 (1991). QUESTION PRESENTED Whether the trial court violated People v. O’Rama, 78 N.Y.2d 270 (1991), and C.P.L. §310.30 by entirely failing to disclose or respond to jury notes requesting a readback, which were marked as court exhibits and placed on the exhibit list and in the Supreme Court file. SUMMARY OF ARGUMENT The trial court is required to give notice of jury notes to counsel and to respond meaningfully to the jury’s inquiries. C.P.L. §310.30; People v. O’Rama, 78 N.Y.2d 270, 276-77 (1991). Jury notes marked as court exhibits and found in the trial court file are part of the trial record just as transcripts are. See People v. Kisoon (Martin), 8 N.Y.3d 129, 132-35 (2007); People v. Kendzia, 64 N.Y.2d 331, 337 (1985). Further, the trial judge is expected and assumed to be familiar with the contents of the court file. See People v. Crampe, 17 N.Y.3d 469, 483 (2011). Accordingly, a court’s failure to disclose or respond to jury notes found in the court file is a plain violation of O’Rama. Here, both the Supreme Court file and the court exhibit list contained two notes marked Court Exhibits 4 and 5, both requesting the rereading of part of a detective’s testimony, but they were not mentioned on the record in any manner. The jury’s note announcing 2 that a verdict had been reached was marked Court Exhibit 6. The court took the verdict without first inquiring whether the jury still wanted the readback. Under these circumstances, the court failed to meet its core responsibilities pursuant to C.P.L. §310.30, since it neither disclosed the note to counsel, responded at all to the readback request, nor determined whether the jury still wanted the readback before accepting the verdict. The court’s actions thus denied appellant’s right to due process and constituted mode of proceedings errors requiring reversal. U.S. Const. Amends. VI, XIV; N.Y. Const. Art. I, §6. STATEMENT OF FACTS Introduction Appellant was indicted for, inter alia, second-degree murder and fourth-degree grand larceny for a December 2007 incident in a Brooklyn hotel room. It was alleged that appellant stabbed David Diaz, killing him, and stole his wallet containing a debit card. In statements to the police, appellant first said Diaz was alive when she left the hotel room after her boyfriend appeared, but in a subsequent statement, she inculpated herself. Two court exhibits in the Supreme Court file indicated the deliberating jury’s desire to hear a readback of all, or part, of the testimony of the lead detective in the case, the witness who testified about the taking of appellant’s statements. However, there was no acknowledgment of those notes on the record. The 3 court never mentioned them, much less read them into the record or discussed them with counsel. When the jury submitted a subsequent note announcing that it had reached a verdict, the judge took the verdict without inquiring whether the jury still needed or wanted the readback. The Trial Evidence At about 3:00 p.m. on December 2, 2007, front desk clerk Faten Mohamed checked appellant and David Diaz into room 211 at a Bay Ridge, Brooklyn, hotel (A94-96, A99-100).1 Diaz paid in cash from a “wad of money” he withdrew from his pocket (A96-97). He lived only four blocks from the hotel (Deborah Diaz: A13-14).2 Diaz and appellant appeared to be a couple: “They walked in together; [Diaz] and the young lady” (Mohamed: A98). Diaz’s mother thought he and appellant were boyfriend and girlfriend (D. Diaz: A17). Mohamed saw Diaz and appellant take the elevator to the second floor (A100). There was also a staircase available around the corner, but it was not visible from the front desk (A103, A112). If a person came into the hotel and headed toward one of the rooms, that person would not have been stopped and asked where he was going (A109-10). Mohamed did not know if a man entered the hotel during the remainder of her shift, which ended at 4:00 p.m. (A110). 1Citations preceded by “A” refer to the pages of the appendix. 2Deborah Diaz will be referred to as D. Diaz to avoid any confusion with the deceased. 4 At around noon on the next day, December 3, 2007, then Police Officer Thomas Gambardella3 responded to Room 211 at the hotel as did Detectives James Moss and Samuel Gilford (Gambardella: A6-8; Moss: A20-21; Gilford: A191). The lifeless body of Diaz was on the floor, naked, covered by a blanket and sheet, with blood on the upper portion of his body (Gambardella: A8, A9-10; D. Diaz: A15-16; Moss: A20-21; Gilford: A191). There were two stab wounds to the front of Diaz’s neck, one to the back of his neck, and two more to his chest and belly (Dr. Aglae Charlot: A145, A148, A152-53). The rest of the bedding and Diaz’s clothing were in the bathtub, which was full of water (Moss: A20-21; Gilford: A189, A203-04). There were condom wrappers on the floor in the bedroom and bathroom (Gilford: A202). No wallet or cash was found in the room (Moss: A25). In early December of 2007, Diaz had an active account at Commerce Bank, which later became TD Bank (Regional Security Manager Jerry Donnelly: A165-66). At about 11:00 a.m. on December 3, 2007, someone using Diaz’s debit card made an unsuccessful attempt to purchase shoes over the internet (Donnelly: A173-74; Moss: A180-83). During the investigation into Diaz’s death, Moss learned that Diaz worked at a strip club, “was friends with [appellant],” and had gotten her a job dancing at the club (Moss: A68). She had 3Gambardella was a sergeant at the time of the trial (A5). 5 worked at several strip clubs (Moss: A68). On January 14, 2008, Detectives Moss and Colvin (who did not testify) learned of an appointment appellant had and, along with a third detective, met her at that location, introduced themselves, and asked if she would be willing to come to the police station to “discuss a certain matter” (Moss: A27). She agreed and rode to the police station with the three detectives (Moss: A27, A82). Only Moss testified about events at the station, where Moss and Colvin brought appellant to an interview room and, shortly after noon, Moss read her the Miranda warnings from a Police Department “Miranda sheet” (A28-30, A77-78). She waived her rights and Moss told her they wanted to speak with her about an incident at a Brooklyn hotel involving David Diaz (A35). Appellant “acknowledged that she understood what [Moss] was talking about.” She told the detectives that she was in a relationship with someone else, but they were having problems. Believing it might be good to start a relationship with someone new, she had agreed to go with Diaz to the hotel (A35). Appellant said that, after she and Diaz had sex, she called her boyfriend and told him what she was doing and with whom to make him angry (A36). The boyfriend showed up at the room and, when he knocked on the door, she panicked and let him in. At that point, she left and did not know what took place afterward (A36). She did not identify the boyfriend by name or state where he could be found 6 (A36). Moss asked appellant to write what she had told them on the Miranda sheet and she did so (A36-37). Appellant completed writing the statement, which mirrored her oral statement, at about 1:50 p.m. (A37-39, A77-78). Moss testified that he thought it “made no sense” that appellant would contact her boyfriend while in a hotel room with another man; that the boyfriend would have come to the room although appellant said nothing about giving him the room number; and that he would have arrived so quickly and without anyone from the hotel saying they saw someone else enter the room (A43-44, A72, A75-76). Also, Diaz’s body was found covered -- something not normally seen in a “stranger homicide” (A44-45). At about 7:00 p.m., Moss and Colvin returned to the interview room, where appellant had remained (A39). After Colvin read the Miranda warnings again (A39-40), Moss told appellant that a covered body was normally seen when there had been a relationship between the victim and killer because it signified remorse (A44-45). Appellant then gave a different account, in which Diaz began kissing her and, to calm him down, she asked him to take a shower (A45). While he was in the shower, she took a knife from her purse and put it under a pillow on the bed. When Diaz came out of the shower, they had sex. He subsequently wanted oral sex, which appellant provided after insisting he use a condom (A45). At her suggestion, Diaz lay on his stomach and she began to give him a 7 massage (A45-46). When appellant told Diaz that she wanted to leave, he got upset and grabbed her wrist. She pulled the knife out from under the pillow and stabbed him. Diaz jumped up, “called her a bitch,” and spit at her, causing her to “dr[i]ve the knife deeper” (A46). Appellant said that she took all of the bedding and Diaz’s clothing, put them in the tub, and ran the shower. She took his wallet, cleaned up, and left the hotel (A46). The detectives again gave appellant an opportunity to put her statement in writing and she did so, beginning on the second Miranda sheet (A46-52). That written statement was substantially the same as the second oral one but somewhat more detailed, explaining that she put the knife under the pillow because she “always [had] bad experiences with men.” During their conversation, appellant had told Moss that she danced at a strip club but was not a prostitute (A53-53). Appellant agreed to give a videotaped statement (Moss: A53- 54), which Assistant District Attorney Marc Fliedner took from appellant, beginning at about 11:00 p.m. (Fliedner: A116-17, A119, A124). The DVD of that statement was played for the jury (A120). Its substance was much like the second oral and written statements. On January 15, 2008, Mohamed identified appellant in a lineup as the woman she checked into Room 211 (Mohamed: A101; Moss: A175- 76). 8 Summations Defense counsel argued that the first statement, in which appellant denied killing Diaz, was the truthful and accurate one, and spent most of his summation stressing that point (A258-67, A265, A269-71, A274-75, A277-80). Counsel argued that both Detective Moss, who took appellant’s oral and written statements, and Assistant District Attorney Fliedner, who took the videotaped statement, “manipulat[ed]” appellant (A265, A275), which was made easier since she was kept in the precinct for 24 to 36 hours without counsel (A265). Moss manipulated appellant to admit to the killing because he had concluded that she had done it (A259-60). The prosecutor argued that, “time and time again,” Moss told appellant of her right to counsel and her right to not say anything (A310). He asserted that there was “good reason” for Moss not to believe appellant’s first statement, the same good reason for the jury not to believe it (A312). And the prosecutor went through that first statement, as recounted by Moss, and “[took] it apart a little bit at a time,” arguing that it was “unbelievable” (A312- 14). He spent most of his summation contending that appellant’s confession (the second statement and video) contained the truthful version of what had transpired (A314-34). 9 Deliberations and Verdict The trial court submitted second-degree murder and fourth- degree grand larceny for the jury’s consideration (A359-60). It instructed the jury on the voluntariness of statements (A354-57). At the start of deliberations, both counsel agreed that exhibit requests could be addressed in their absence (A365-66). In a note contained in the Supreme Court file timed at 1:04 p.m. and marked Court Exhibit 3, the jury asked for various photos in evidence (A371). In a second note, timed at 1:05 p.m. and marked Court Exhibit 4, the jury asked for the “First Det. Statement”4 (A372). There is no indication on the record that the court showed this note to the attorneys, read it into the record, or made any inquiry of the jury regarding it. Nor is there any indication that any readback to the jury resulted from it. Subsequently, another note from the jury, timed at 1:21 p.m. and marked Court Exhibit 5, stated, “[t]o clean up the first note, we would like to hear Det. Moss [sic] direct examination” (A373). Again, there was no acknowledgment of this note on the record at all; the court never mentioned it, much less read it into the record or asked counsel for their input. And there was no readback of the requested testimony. 4Det. James Moss was the first detective to testify at the trial (A18). 10 The first thing that appears in the transcript regarding any communication from the deliberating jury was when the court announced, “we have a verdict” (A366). The jury note, marked Court Exhibit 6, announcing a verdict was timed at 2:12 p.m. (A374).5 Without mentioning the earlier notes, the court accepted the verdict finding found appellant guilty of both counts submitted to the jury (A366-67).6 The Appellate Division Decision On appeal, appellant argued, inter alia, that the court violated its obligations under C.P.L. §310.30 and deprived appellant of due process when it accepted the verdict without disclosing to counsel that the jury had requested a readback of testimony and without either responding to the jury’s request or confirming that the jurors no longer wanted the readback. The Appellate Division, Second Department, affirmed the conviction on November 14, 2012 (A2) (People v. Hanson, 100 A.D.3d 771 [2d Dept. 2012]). It concluded that “the record is bereft of 5Court Exhibits 4, 5, and 6 are in the Supreme Court file. Also in the Supreme Court file is a printed form listing the court exhibits (A370). It indicates that the written Antommarchi waiver was Exhibit 1; a verdict sheet was Exhibit 2; three jury notes were Exhibits 3, 4, and 5 (A371-73); and a final jury note announcing the verdict was Exhibit 6 (A374). 6As indicated in a footnote in Appellant’s Brief before the Appellate Division, Second Department, in preparing that brief appellate counsel spoke with the court reporter, Ms. Diane Dixon, who stated that nothing was missing from the transcript. 11 any evidence that these notes were actually received by the Supreme Court.” The Honorable Robert S. Smith granted appellant leave. ARGUMENT THE TRIAL COURT VIOLATED PEOPLE V. O’RAMA, 78 N.Y.2d 270 (1991), AND C.P.L. §310.30 BY ENTIRELY FAILING TO DISCLOSE OR RESPOND TO JURY NOTES REQUESTING A READBACK, WHICH WERE MARKED AS COURT EXHIBITS AND PLACED ON THE EXHIBIT LIST AND IN THE SUPREME COURT FILE. As the Court said in People v. O’Rama, 78 N.Y.2d 270, 277 (1991), and reiterated in People v. Kisoon, 8 N.Y.3d 129, 134 (2007), when deliberating jurors make a request, the trial court’s core responsibility under [C.P.L. §310.30] is both to give meaningful notice to counsel of the specific content of the jurors’ request ... and to provide a meaningful response to the jury (emphasis added). Here, the jury sent the court a note timed at 1:05 p.m., which the courtroom clerk marked Court Exhibit 4 (A372), requesting the “First Det. Statement.” That note was also listed on the list of court exhibits. Sixteen minutes later, in a note timed at 1:21 p.m., which the clerk marked Court Exhibit 5 (A373) and also listed on the list of court exhibits, the jury, wanting “[t]o clean up the first note,” specified that they were seeking “to hear Det. Moss [sic] direct examination.” Finally, having received no response to either note for almost an hour, the jury submitted a note timed at 2:12 p.m. announcing it had reached a verdict. The courtroom clerk 12 marked it Court Exhibit 6 (A374) and added it to the list of court exhibits (A370). The court failed not only to give counsel notice of the jury’s notes requesting the readback, but also to provide any response to either note. It neither gave the jury the readback it had requested twice nor determined, in any fashion, whether the jurors still wanted to re-hear the testimony before it took their verdict. In People v. Tabb, 13 N.Y.3d 852 (2009), the Court reversed a conviction, 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.” 13 N.Y.3d at 853. In accord with Tabb, several Appellate Division cases have held that it is the responsibility of the trial court -- not defense counsel -- to ensure that the appropriate record is made as to a trial court’s compliance with O’Rama. In People v. Piccione, 78 A.D.3d 1518 (4th Dept. 2010), for example, one of three notes from the jury was not discussed on the record. In that case, there was “no indication in the record that 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.” 78 A.D.3d at 1519. The Fourth Department found that the burden was on the trial court to ensure that there was a record of compliance with O’Rama, stating that “there [was] an absence of 13 record proof” that the trial court complied with its C.P.L. §310.30 core responsibilities. So, too, the First Department, in People v. Caban, 78 A.D.3d 403 (1st Dept. 2010), found that the responsibility to demonstrate compliance with O’Rama rested with the trial court, stating, “there is no evidence in the record to support an inference, even an intimation” that the court fulfilled its responsibilities with respect to all of the jury notes. Here, there is an absence of record proof that the court fulfilled its core responsibilities regarding notes marked Court Exhibits 4 and 5. Of course, in the case at bar, by definition, “the court’s response [to the jury] was not meaningful because [there] was no response at all.” People v. Lourido, 70 N.Y.2d 428, 435 (1987); People v. Smith, 248 A.D.2d 413, 414 (2d Dept. 1998); see also People v. Malloy, 55 N.Y.2d 296, 302 (1982)(“where the court fails to give information requested upon a vital point ... an omission cannot be ignored”). Compounding the error of failing to have the detective’s testimony read back to the jury, when the court received the note announcing that the jury had reached a verdict, Court Exhibit 6, it took none of the available steps that might have eliminated the prejudice, such as offering the jury an opportunity to hear any of Moss’s testimony, see People v. McNeil, 228 A.D.2d 620, 621 (2d Dept. 1996), polling the jurors to see if they still wanted the 14 readback, see People v. Carrero, 140 A.D.2d 533 (2d Dept. 1988), or confirming with the foreperson that a readback was no longer necessary. See People v. Bobadilla, 254 A.D.2d 493, 494 (2d Dept. 1998). Rather, the judge simply accepted the verdict without further inquiry. Because the court took no steps to determine whether the jurors’ desire for a readback of Moss’s testimony had been obviated, and the jurors had not so indicated on their note declaring that they had reached a verdict, the judge’s failure to respond violated C.P.L. §310.30. See People v. Valerio, 141 A.D.2d 585 (2d Dept. 1988)(reversal when judge failed to respond to jury note indicating it was deadlocked prior to taking verdict). The failure to give the desired readback, Detective Moss’s testimony, or to at least determine whether the jury still wanted to hear it before accepting the verdict, obviously struck at the heart of this case. Detective Moss had taken appellant’s statements, the first denying the killing, the second confessing to it. Defense counsel’s summation was, in large part, an argument for why the first statement was truthful, and should be credited by the jury, whereas the second, the confession, was not. Moss’s testimony was thus key to the defense. Yet the jury was denied the opportunity to re-hear it as a result of the court’s failure to fulfill its core responsibility under O’Rama and C.P.L. §310.30. And the failure to inform defense counsel of the readback requests 15 obviously mattered, since counsel would have welcomed the jurors’ focusing on Moss’s testimony, which was key to the defense. In the case at bar, the Second Department rejected appellant’s argument that the trial court’s handling of the jury notes denied her a fair trial, declaring that “the record is bereft of any evidence that these notes were actually received by the Supreme Court,” making the issue “based on matter dehors the record.” People v. Hanson, 100 A.D.3d 771 (2d Dept. 2012). The Appellate Division was wrong. Transcripts of the trial court proceedings are not the sole component of the trial record. Materials in the Supreme Court file, including jury notes marked as court exhibits and listed on the court exhibit sheet, are part of the trial record as well. In a variety of contexts, the Court has considered documents and information contained in the Supreme Court file to be part of the record for appeal. For example, it has done so in the context of whether the defendant properly waived his right to counsel before proceeding pro se. Reviewing its decision in People v. Vivenzio, 62 N.Y.2d 775 (1984), the Court, in People v. Providence, 2 N.Y.3d 579 (2004), said that Vivenzio “knowingly and intelligently waived his right to counsel” despite the absence of a colloquy regarding his “age, education, occupation and previous exposure to legal procedures.” 2 N.Y.3d at 583. Explaining its Vivenzio decision in Providence, the Court said that it had: 16 noted that the trial court ‘determined that defendant was an adult who had been involved in the criminal process before’ [Vivenzio at 776]. Since the waiver colloquy did not reveal this information, we obviously looked to the whole record. 2 N.Y.3d at 583 (emphasis added). In reviewing the whole record to resolve a similar issue in Providence, the Court found that “[t]he court file contained defendant’s pedigree information,” and presumed that the trial judge was aware of the file’s contents. 2 N.Y.3d at 583. Thus, patently, the “record evidence” on which the Court relied as revealing that the trial court had properly “delved into” Providence’s background included information contained in the court file. Indeed, in People v. Crampe, 17 N.Y.3d 469, 483 (2011), the Court explained its Providence decision by saying, “[t]here we looked to the record as a whole to establish that the judge was already familiar with the defendant’s pedigree information when he engaged in the waiver colloquy” (emphasis added). Similarly, in the C.P.L. §30.30 context, the Court has considered a statement of trial readiness contained in the Supreme Court file to be part of the record evidence. In People v. Kendzia, 64 N.Y.2d 331 (1985), it said that the People can communicate readiness for trial in either of two ways: (1) making a statement of readiness on the record, so it is evident in the transcript, or (2) sending a written notice to defense counsel and 17 “the appropriate court clerk to be placed in the original record,” i.e., the court file. 64 N.Y.2d at 337. The rule that the contents of the Supreme Court file are part of the record obviously applies to documents that reflect events during jury deliberations. In People v. Martin, the companion case to People v. Kisoon, supra, 8 N.Y.3d 129, the jury sent a number of notes to the court. However, “the trial court, due to a clerical error, failed to read or respond to the jury’s first note ....” 8 N.Y.3d at 132-33. The extent of the “clerical error” was not completely clear from the face of this Court’s decision, although it stated, “it is undisputed that the trial court erred in failing to notify counsel or to respond to the ... note.” 8 N.Y.3d at 135. The parties’ briefs in Martin (brief covers in Addendum at 2 and 5), however, make the facts clear. The note at issue “was never mentioned in the transcript, whereas all other juror notes were, in some fashion at least, acknowledged or mentioned by the judge.” Defendant-Respondent’s Brief at 9 (Addendum at 7).7 But that note was marked as Court Exhibit 1; there was a notation on the court’s docket sheet that read: “5:10 p.m. note from jury (Ct. Ex. I) Evidence sent to jury”; and the note itself was placed in the Supreme Court file. Id. at 4 (Addendum at 6. The People contended that “the court was not alerted to the fact that [the] note ... had 7Martin’s conviction was reversed by the Appellate Division and the People appealed to this Court. 26 A.D.3d 847 (4th Dept. 2006), lv. granted, 7 N.Y.3d 791 (2006). 18 been sent, and therefore” did not address it. People’s Brief, at 5-6 (Addendum at 3-4). Thus, in Martin, both parties seemed to agree that the “clerical error” referred to by this Court resulted in the judge not being made aware of the jury’s first note. The note’s request for “definitions of 3 counts” was therefore ignored. Nevertheless, this Court held that the “trial court erred in failing to notify counsel or to respond to the jury’s first note.” 8 N.Y.3d at 135. In other words, the Court deemed the trial court responsible for being aware of jury notes submitted to it, marked as court exhibits, and found in the court file. In the case at bar, just as in Martin, there was ample proof that the courtroom clerk received the notes in which the jury twice asked for a readback of all or part of Detective Moss’s testimony. They were marked as Court Exhibits 4 and 5. They were included on the form in the court file listing all court exhibits -- a form undoubtedly filled out by the clerk. And they were placed in the Supreme Court file. Only the clerk -- not the jurors -- would have known what numbers to give the exhibits. And the clerk’s decision to mark the note announcing that a verdict had been reached as Court Exhibit 6 clearly showed that he or she was cognizant of the notes previously received and marked Exhibits 4 and 5.8 8The presumption of regularity accorded to court proceedings, People v. Velasquez, 1 N.Y.3d 44, 48 (2003); People v. Harrison, 85 (continued...) 19 A trial judge has a responsibility to “exercise full and proper control of the trial.” People v. Kelly, 5 N.Y.3d 118, 121 (2005). Even if the O’Rama error in the instant case was due to the court clerk’s failure to make the judge aware of the notes, the error mandates reversal and remand for a new trial. In People v. Khalek, 91 N.Y.2d 838, 840 (1997), the Court found that a court officer “exceeded his ministerial duties” and “usurp[ed] ... [the] judicial function” when he failed to inform the court that the jury had reached a verdict and denied the jury’s request to deliver the verdict before being sequestered for the night. “This trial error of law warranted ... a new trial.” 91 N.Y.2d at 840. In Khalek, in clear “the-buck-stops-here” tradition, although the trial judge was unaware of the court officer’s transgression, this Court made clear that a trial judge is charged with exercising “full and proper control” of a trial. See also People v. Flores, 282 A.D.2d 688 (2d Dept. 2001)(new trial required when court officer failed to inform judge that a juror, conversant in Spanish, was going to translate a letter in evidence to entire jury). 8(...continued) N.Y.2d 794, 796 (1995), also evidences that the notes were received by the court. As directed by the Court in People v. O’Rama, supra, 78 N.Y.2d at 277-78, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit.” 78 N.Y.2d at 277. Even though no other O’Rama steps were followed, that threshold step was fulfilled here, at least to the extent that the clerk marked the notes with exhibit numbers. 20 Indeed, that it does not matter whether the clerk transmitted the notes to the judge has already been decided by the Court in Martin, supra. The trial court there was held responsible for failing to act upon the note in question although the judge herself had apparently never seen the note. 8 N.Y.3d at 135. And this is as it should be. “An integral component of a defendant’s right to trial by jury is the supervision of a Judge.” People v. Hernandez, 94 N.Y.2d 552, 555 (2000); see also People v. Ahmed, 66 N.Y.2d 307, 311-12 (1985)(“right to a proper trial by jury,” “conferred by our Constitution [art I, §2], has been properly interpreted as guaranteeing the right to trial by jury as it had existed at common law”; “the presence and active supervision of a judge constitute an integral component of the common-law right”; emphasis added). Accepting, as the Court must, that the jury notes were submitted to the court and are part of the trial record, “[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.” People v. Tabb, supra, at 853. Failing to give notice of the notes to counsel, failing to have the requested testimony read back to the jury, and taking the verdict without first learning upon proper inquiry that the jury no longer wanted the readback, were mode of proceedings errors, “inherently prejudicial,” requiring reversal. See Tabb, supra, at 853; People v. Kisoon, supra, 8 N.Y.3d at 134-35. 21 CONCLUSION FOR THE FOREGOING REASONS, 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: September 27, 2013 New York, New York 22 ADDENDUM 1 To Be Argued By: DONNA A. MILLING Requested Time: 15 Minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant v LEON MARTIN, III, Respondent Indictment No. 91-1650-001 BRIEF FOR APPELLANT FRANK J. CLARK District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858-7922 J. MICHAEL MARION DONNA A. MILLING Assistant District Attorneys of Counsel August 30, 2006 2 POINT ONE DEFENDANT WAS NOT PREJUDICED AS A RESULT OF THE COURT'S FAILURE TO RESPOND TO THE JURY'S NOTE AND ERROR, IF ANY, IS HARMLESS. The record reveals that the jury was charged and excused to begin deliberations at 4:40 p.m. on November 12, 1992 (RA 633) . At that time, the verdict sheet was marked "Court Exhibit 1 in evidence" (RA 549). At 5:10 p.m., the jury sent its first note, requesting "autopsy photos, definitions of. the three counts, photos of everything and all the evidence" (RA 583, 620). The clerk also marked this note as Court Exhibit I and sent the evidence to the jury (RA 583). It appears that the clerk missed the jury's request for "definitions of three counts," and no response was provided to that request at that time. Ten minutes later at 5:20 p.m., the jury sent its second note (marked Court Exhibit II), requesting "a brief readback of the first count, 3 points" (RA 583). The court reconvened the parties in the court room at 5:40 p.m. and responded to the jury's request. Because the court had marked the verdict sheet as Court Exhibit I, and the note requesting a readback on the first count was marked Court Exhibit II, the court was not alerted to the fact that a prior note which the clerk had erroneously marked Court Exhibit I - 5 3 had been sent, and therefore that first note was not addressed by the court. Not every failure to comply with a jury's request for information during deliberation is reversible error (People v Lourido, 70 NY2d 428 [1987J; People v Agosto, 73 NY2d 963 [1989J; People v Miller, 6 NY2d 152, 156 [1959]). The test is whether the failure to respond seriously prejudiced the defendant (People v Jackson, 20 NY2d 440, 445 [1967J, cert denied 391 US 928 [1968]); people v Cooke, 292 NY 185, 188 [1944J; People v Lourido at 435). This Court has never adopted a per se rule concerning the adequacy of a court's response. It is only where the court fails to give information requested upon a vital point that an omission cannot be ignored (People v Malloy, 55 NY2d 296, 302 [1982J, cert denied 459 us 847). In view of the court's responses to subsequent requests of the jury, defendant sustained no prejudice as a result of the court's omission and error, if any, should be deemed harmless (see, People v Burgos, 248 AD2d 547 [1998J, Iv denied 92 NY2d 923). In its first note (not responded to by the court) the jury sought a read back of the three counts contained in the indictment. Ten minutes later, the jury sent a note seeking re- instruction on the first count of the indictment charging intentional murder (RA 549-550). The court promptly and adequately - 6 4 To be argued by: THOMAS THEOPHILOS, Esq. Oral argument requested Requested time: IS minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs Indictment # 91-1650-00 I LEON MARTIN HI Defendant - Respondent -_. -------------- BRIEF ON BEHALF OF DEFENDANT- RESPONDENT THOMAS THEOPHILOS, Esq. Attorney for defendant - respondent Leon Martin III 1201 Colvin Blvd. - Suite I Buffalo, New York 14223 Ph:(716) 447-7899 Fax: (716) 447-7901 DATED: November 15,2006 5 Finally, the court charged the jury on the defense ofjustification (533). After the court's charge on the law, the jury retired to deliberate at 4:40 p.m. on Nov. 12, 1992 (579). A written note from the jury procured from the court file at Erie County Hall indicates that at 5:10 p.m. the jury sent out a note (579). The handwritten portion of that jury note reads as follows (566): I) autosy (sic) photo: definition on counts photo's of everything all evidence Additionally, on that note is a notation, obviously placed there by the clerk of the court, indicating that it is court exhibit #1. The existence of this note is further evidenced by a notation on the court's docket sheet which states the following: "5: I0 p.m. note from jury (Ct. Ex.I) Evidence sent to jury" (579). Neither this jury note nor its contents is mentioned in any way anywhere in the transcript despite the fact that the court makes mention, in some way at least, of every other jury note that is handed up to the court. Trial counsel for the defendant has stated in an affidavit that was submitted with the error coram nobis petition that he never saw nor was he informed of the existence of this jury note (605). In another affidavit submitted with that petition, the defendant stated that he never saw nor was he informed of the existence of this note (602). In the first paragraph of page 5 of her 4 6 POINT I THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT THE TRIAL COURT'S O'RAMA VIOLATIONS WERE SO INHERENTLY PREJUDICIAL AS TO REQUIRE A NEW TRIAL AND COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THOSE VIOLATIONS a) Relevant facts The jury sent out a note which requested, inter alia, "definition of three counts" (566, 579). This note was never mentioned in the transcript, whereas all other juror notes were, in some. fashion at least, acknowledged or mentioned by the judge. Thereafter, a second note was handed to the clerk which requested, inter alia, a read back on "First Count" and underneath that was written the words "3 points" (567, 579). The judge then read back her instructions on the first count without (l) asking the jury for an explanation of what it meant by its request for "3 points"; or (2) advising defense counsel of the request for "3 points" contained in the note (545). The court then also gave a re-charge on the second count of the indictment based on a verbal request for same prompted by an oral inquiry from the court in which the judge had asked the jury "is there something else?" (549). 9 7