The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016APL-2015-00123 Argued by ORRIE A. LEVY NEW YORK SUPREME COURT Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PATRICK MORGAN, Defendant-Appellant, RESPONDENT'S BRIE F STANLEY R. KAPLAN ORRIE A. LEVY Assistant District Attorneys of counsel ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-7121 Levyo@bronxda.nyc.gov PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................. ii PRELIMINARY STATEMENT ............................................................ ! QUESTIONS PRESENTED ......................................................................... 2 FACTS .......................................................................................... 3 ARGUMENT .................................................................................. 15 POINT ONE THE COURT PROPERLY DECLINED TO ISSUE A FULL ALLEN i CHARGE TO THE WRY WHEN INSTRUCTING THE WRY TO CONTINUE DELIBERATING FOR THE SECOND TIME ........................................................................................... 15 POINT TWO THE COURT PROPERLY DECLINED TO READ BACK DEFENSE COUNSEL'S SUMMATION TO THE mRY . . . . . . . .. . . . . . . . . . . . . ... . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION .............................................................................. 29 PRINTING SPECIFICATIONS STATEMENT ............................................................................................... 30 1 ") ) TABLE OF AUTHORITIES CASES Allen v. U.S., 164 U.S. 492 (1896) .......................................................................... 15 People v Dixon, 277 AD2d 65 (1st Dept. 2000) .................................................... 24 People v McClary, 197 A.D.2d 640 (2d Dept 1993) .............................................. 26 People v. Aleman, 12 N.Y.3d 806 (2009) ......................................................... 20, 22 People v. Alicia, 21N.Y.3d687 (1991) .................................................................. 24 People v. Aponte, 2 N.Y.3d 304 (2004) ............................................................ 19, 20 People v. Baldi, 54N.Y.2d 137 (1981) ................................................................... 26 People v. Belvett, 105 A.D.3d 538 (1st Dept.) lv. denied, 21N.Y.3d1040 (2013). 22 People v. Benevento, 91 N.Y.2d 708 (1998) ........................................................... 26 People v. Bonilla, 225 A.D .2d 3 30 (1st Dept. 1996) ............................................... 20 People v. Caban, 5 N.Y.3d 143 (2005) .................................................................. 26 People v. Cannon, 236 A.D.2d 294 (1st Dept. 1997) .............................................. 21 People v. Carter, 40 N.Y.2d 933 (1976) ................................................................. 20 People v. Clariot, 188 A.D .2d 281 (1st Dept. 1992) ............................................... 24 . People v. Clariot, 188 A.D.2d 281 (1st Dept. 1992), lv. denied, 81N.Y .. 2d838 (1993) .................................................................................................................... 25 People v. Cruz, 171A.D.2d607 (1st Dept. 1991) ................................................... 25 11 People v. Gonzalez, 259 A.D.2d 631 (1st Dept. 1999) ...................................... 21, 23 People v. Jorge, 23 A.D.3d 254 (1st Dept. 2005) .................................................... 24 People v. La Valle, 3 N.Y.3d 88 (2004) ................................................................... 19 People v. Lourido, 70 N.Y.2d 428 (1987) ............................................................... 27 People v. McDonald, 1 N.Y.3d 109 (2003) ............................................................ 26 People v. McGee, 20 N.Y.3d 513 (2013) ................................................................ 27 People v. Orama, 78 N.Y.2d 270 (1991) ................................................................ 26 People v. Rodriguez, 289 A.D.2d 60 (1st Dept. 2001) ............................................. 27 People v. Simmons, 66 A.D.3d 292 (1st Dept. 2009) ............................................... 20 People v. Smalls, 23 7 A.D .2d 116 (1st Dept. 1997) ................................................ 20 People v. Turner, 5 N.Y.3d 476 (2005) .................................................................. 27 People v. Velasco, 77 N. Y .2d 469 ( 1991) ............................................................... 24 Strickland v. Washington, 466 U.S. 668 (1984) ...................................................... 26 STATUTES ,,......._,...,.T !""!> - 11 """ - r.. 16 C..t"L9JlU.JU .......................................................................................................... . CPL§ 330.10 ........................................................................................................... 26 111 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT --------------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Ind. No. 1762/2008 PATRICK MORGAN, Defendant-Appellant. ---~o~e"--------------------------------------------------------------------)( RESPONDENT'S BRIEF STATEMENT John Stone appeals from a judgment of the Supreme Court, Bronx County (lacovetta, J.), rendered February 7, 2012, convicting him, after a jury trial, of Manslaughter in the First Degree and Criminal Possession of a Weapon in the Second Degree, and sentencing him to a determinate term of imprisonment of 18 years, to be followed by five years of post-release supervision for the Manslaughter conviction to be served concurrently with a determinate term of imprisonment of five years, to be followed by five years of post-release supervision for the weapon possession conviction. Defendant is currently incarcerated pursuant to this judgment. QUESTIONS PRESENTED 1. \\'hether the court properly instructed the jurors that they should continue to deliberate and attempt to reach a verdict but declined to instruct the jury, for the second time that day, not to "surrender conscientious beliefs." The court below denied defense counsel's request for an expanded Allen charge on the ground that the court had given the full charge earlier that same morning and did not believe that the jury failed to understand that charge. 2. Whether the court properly declined the jury's request during deliberations for a read back of defense counsel's summation? The court below did not hqve an opportunity to address this question t... ,l c 1 _t• 1 , 1 • ' uecause ueiense counse1 ma nm ooJect. 2 THE FACTS The Indictment On October 22, 2010, under indictment number 1762 of 2008, the Bronx County Grand Jury charged defendant with Murder in the Second Degree (Penal Law § 125.25[1]), Manslaughter in the First Degree (Penal Law § 125.20[1]), and Criminal Possession of a Weapon in the Second Degree (two counts) (Penal Law §§ 265.03[1][b], [2]) (Judgment Roll).1 The Trial The People's Case Tishawn Folkes and Shawn Folkes were married in 2005, and had a daughter together. In April of 2008, Shawn Folkes was employed by a cab company in the Bronx. On April 2, 2008, at approximately 6:00 p.m., Shawn was home with Tishawn when he received a phone call from the owner of the cab company asking him to return to work for a birthday party. Between 6:00 p.m. and midnight Tishawn called Shawn multiple times but did not actually reach him until 11: 15 p.m., at which time Shawn told her he would be home soon. Shawn never returned home. At approximately 3:00 a.m. on April 3, 2008, detectives came to Tishawn's home to inform her that Shawn had been killed. Tishawn went to Jacobi Hospital 1 The counts submitted to the jury were Murder in the Second Degree, Manslaughter in the First Degree, Manslaughter in the Second Degree and Criminal Possession of a Weapon in the Second Degree. 3 and, on April 7, 2008, went to the Office of the Chief Medical Examiner and identified Shawn's Body (T. Folkes: T. 13-32).2 On April 2, 2008, Police Officer Robert Konner completed his tour of duty at 11 :35 p.m. and, by 12:00 a.m., was wearing civilian clothing and driving home in his personal vehicle (T. 182). At approximately 12:15 a.m. on April 3, Officer Konner was driving in the vicinity of 233rd Street and White Plains Road in the Bronx, when he heard what sounded like two gunshots and observed a flash. He stopped his vehicle, looked out the window, and observed two shadowy figures in a dark area. The figures were approximately eight to ten feet apart. Officer Konner then heard the words "please don't kill me" followed by what he believed to be three gun shots. At that time, he could not tell who said the words, which figure had fired the gun, or what the two individuals looked like (T. 181-184, 190, 229- 239). After hearing the gunshots, he observed defendant walk out of the dark area and onto the lit street. Defendant walked directly passed Officer Konner's vehicle while carrying a black semi-automatic gun in his right hand. Defendant was wearing blue jeans, a baseball hat, a dark sweater, a hooded sweatshirt, and a black jacket. Officer Konner remained still and watched defendant walk past his car. Though Officer Konner had his service weapon, he did not make any move toward 2 Numerals preceded by "T." refer to the minutes of defendant's trial, and those preceded by "D." Refer to the minutes of the court's charge and jury deliberations, and those preceded by "S." refer to the minutes of defendant's sentencing. 4 his gun because he believed defendant had "tunnel vision" and that if he moved, defendant would see him and shoot him. When defendant reached the passenger side of Officer Konner's vehicle, defendant attempted to place the gun in his jacket but the gun fell to the floor. Officer Kanner began to get out of his vehicle but defendant retrieved the gun so Officer Konner remained in his vehicle. Officer Kanner chose not to confront defendant at that time because he was not wearing a bullet proof vest and because defendant had already "walked up on the victim." After retrieving the gun, defendant continued walking on 233rd Street toward White Plains Road (T. 184-186, 243-248). As defendant walked toward White Plains Road, Officer Konner used his portable radio to notify the police operator that a male had been shot. He also relayed defendant's description, requested backup, and informed the dispatcher that he was pursuing an individual with a gun. By that time, defendant was waking northbound on the west side of White Plains Road toward 235th Street. Officer Konner reversed his vehicle up 233rd Street and turned onto White Plains Road in pursuit of defendant. Officer Kanner observed a marked police car drive by defendant, after which defendant crossed the street to the east side of White Plains Road. When Officer Konner and defendant were approximately fifteen feet apart, Officer Kanner exited his vehicle. Defendant looked at him briefly, and then ran down 235th Street and into a construction yard. Officer Konner did not pursue 5 defendant directly because he did not believe it would be safe. Additional police units arrived shortiy thereafter and sealed off the area. Officer Kanner entered an unmarked police vehicle and was driven around the area in an attempt to locate defendant (T. 186-190, 249-252, 255). On April 3, 2008, Sergeant Robert Barnett and his partner, Joseph Stynes, were on patrol from 9:00 a.m. to 6:00 p.m. in an unmarked vehicle. At approximately 12: 17 a.m., Sgt. Barnett received a call on his radio that a male was shot on the corner of 233rd Street and White Plains Road. He also received a description of a black male, approximately 5"10 to 5"11, wearing a black jacket, hooded sweatshirt, jeans, and a baseball cap. Sgt. Barnett also learned that the male fled into a vacant parking lot or construction site on 235th Street (T. 292-295). At approximately 12:25 a.m., Sgt. Barnett was driving south on Furman Avenue when he observed defendant exiting from the courtyard of 4305 Furman Avenue and putting on a jacket. Defendant was not wearing a hat or hooded sweatshirt but matched the description Sgt. Barnet had received in all other respects (T. 296-297, 306-309). When defendant was approximately two car lengths away from Sgt. Barnett, Sgt. Barnet instructed Officer Stynes to stop the vehicle. When defendant was parallel with the vehicle, Sgt. Barnett identified himself as a police officer. Defendant stated that he was visiting a friend but that the friend was not home. Sgt. 6 Barnett then exited the vehicle and approached defendant. Defendant appeared very nervous and his eyes were darting back and forth. Sgt. Barnett approached with his left arm outstretched. Defendant pushed Sgt. Barnet's hand away and the two "went to the ground together." With the assistance of Officer Stynes, defendant was placed in handcuffs. The officers searched defendant and recovered business cards from a cab stand on 233rd Street, the location where the shooting had occurred (T. 298-299). Sgt. Barnett then sent a message over his radio that he had an individual in custody with regard to the shooting and transported defendant back to 235th Street, at which time Officer Konner identified defendant as the individual he had observed with the gun at the scene of the shooting. Approximately ten minutes had passed since Officer Konner first called the police operator (Konner: T. 190-206, 265; Barnet: 300). On April 3, 2008, Police Officers Dimitri Kalinin and Johany Bezel Reyes responded to 690 East 233rd Street in response to a radio call of a shooting. When they arrived, Officer Kalinin observed an ambulance and EMS personnel treating a man who was laying face-up and unmoving on the ground. EMS, accompanied by Officer Reyes, removed the male from the scene by ambulance and Officer Kalinin 7 began securing the crime-scene.3 Officer Kalinin learned that the man's name was Shawn Folkes (Kalinin: T. 34-37).4 At approximately 12: 16 a.m. on April 3, 2008, Detective David Rodriguez was assigned to investigate the homicide of Shawn Folkes. He went to the crime scene and spoke to several officers. After learning that defendant went to 4305 Furman A venue, he went to that location. Outside 4305 Furman Avenue are two matching courtyards. At approximately 1 :00 a.m., he located a dark, hooded sweatshirt in the right courtyard and instructed members of the crime scene unit to recover the sweatshirt. He believed the sweatshirt was significant because he thought defendant may have thrown the sweatshirt there. Det. Rodriguez decided to return in the daylight and conduct another search. Det. Rodriguez went to the 4 7 Precinct and processed defendant's arrest. He observed cuts on the inside of defendant's hands (Rodriguez: T. 315-322, 335-337). At approximately 12:55 a.m. on April 3, 2008, Detective Bruce Kapp of the crime scene unit received a notification of a shooting in the vicinity of 690 East 3 By stipulation, the jury learned that Officer Reyes accompanied Shawn Folkes to the hospital, retrieved his clothing and a bullet from hospital personnel, and gave the items to Detective Bruce Kapp. The clothing consisted of sneakers, a T-shirt, a hooded sweatshirt, boxers, socks, a flannel jacket and jeans. The jury also learned by stipulation that on April 3, 2008, police operator T69 was employed as a 911 operator and that, at approximately 12:17 p.m. she received a 911 call from a male caller. The call was introduced as People's 52 in evidence (Stipulations: T. 285- 288). 4 Later that day, at approximately 9:00 a.m., Officer Kalinin went to the Medical Examiner's Officer and identified the body of the victim as the individual he had observed at the scene (Kalinin: T. 39-40). 8 233rct Street. He first responded to Jacobi Hospital, viewed the victim's body, conferred with hospital personnel and police officers, and received a bag of clothing and a bullet from Officer Reyes. He further observed a copper bullet jacket lodged inside the right sneaker he received. Det. Kapp vouchered this evidence and ordered ballistic and forensic testing (Kapp: T. 61-85). Det. Kapp then responded to the scene of the shooting. He arrived at approximately 2:51 a.m., and conducted a walk-through of the scene. He observed three shell casings lodged in cracks in the sidewalk but, because it was windy, and 233rd Street is on a severe incline, the placement of the shell casings did not assist him in determining the location where the shooter was standing (Kapp: T. 86-100, 147-151). At approximately 4:30 a.m., Det. Kapp went to 4305 Furman Avenue and recovered the hooded sweatshirt. He then returned to the 4 7 Precinct and took pictures of defendant. Det. Kapp observed fresh pinch marks on the right and left palm of defendant's hands, and concluded, based on his training and experience that the marks were caused by the improper holding of a 9mm semi-automatic gun. Defendant also had possible injuries to the neck area. Det. Kapp sent defendant's clothing for forensic testing (Kapp: T. 102, 110-120, 153-154). Later that day, at approximately 12:00 p.m. Det. Rodriguez returned to the vicinity of the shooting and searched defendant's route of flight from the scene of 9 the shooting to 4305 Furman Avenue. When he searched 4305 Furman A venue, he iocated a Glock handgun in the left courtyard, near the location defendant was apprehended. Det. Rodriguez notified the crime scene unit (Rodriguez: T. 323-326, 337-339). As per Det. Rodriguez's request, at approximately 12:30 p.m. on April 3, 2008, Det. Kapp went to 4305 Furman Avenue and recovered a .9mm semiautomatic Glock firearm. The gun had one .9mm Luger bullet in the chamber and six .9mm Luger bullets in a magazine with a ten-bullet capacity. He requested ballistic testing of the gun (Kapp: T. 126-142; 165). On April 3, 2008, Dr. Monica Smiddy, an expert in the field of forensic pathology, conducted an autopsy on Shawn Folkes. She located evidence of four gunshot entrance wounds. One wound was to the inner, right thigh, from which Dr. Smiddy recovered a bullet. One was to the back of the left hip, from which Dr. Smiddy recovered a bullet. One was to the mid-portion of the front, left thigh. One was to the area just above the left ankle. Shawn also had a graze wound to a finger on his left hand. Dr. Smiddy determined that these gunshot wounds caused Shawn's death and that the two wounds to the back of Shawn's body were consistent with his having been shot from behind. 5 Dr. Smiddy did not find any 5 On cross-examination Dr. Smiddy first testified that the wounds were not consistent with two men facing one another from a distance of eight to ten feet and that based on the downward trajectory of the bullets, the wounds could be consistent with two men struggling for a gun 10 gunshot residue around any of the entrance wounds, but the presence of gunshot residue could have been affected by whether the victim was wearing clothing (Smiddy: T. 411-423, 434-435). Jason Berger, a criminalist with the New York Police Department, and an expert in trace evidence, analyzed Shawn and defendant's clothing. He first analyzed the clothing associated with defendant and determined that there was no gunshot residue or holes in the hooded sweatshirt or the black jacket. This lack of residue did not indicate that the wearer of the clothing did not fire a gun; in his entire career, Mr. Berger had never found gunshot residue on a shooter's clothing except in the case of a possible self-inflicted wound (Berger: T. 449-461). Mr. Berger also analyzed the victim's clothing, including two sneakers, a white T-shirt, a hooded sweatshirt, boxer shorts, two socks, a plaid jacket, and jeans. He observed two holes on the lower right-hand side of the jacket, and one hole on the lower left side of the back of the jacket. He also observed one hole on the front, lower left leg of the jeans, one hole on the front, upper left of the jeans, and one hole on the lower back part of the left leg. He observed one hole in the right sneaker. He also observed one hole on the front right left of the boxers, one (Smiddy: T. 434-435, 442). She further testified, however, that bullets can change trajectory when they hit a body and, on redirect, further clarified that there are many different scenarios that could have resulted in the wounds to Shawn and that defense counsel's hypothetical of two men facing each other at a distance of eight to ten feet did not take into account whether the shooter and victim were standing on an incline, the angle of the gun, or the angle of the shooter's arm (Smiddy: T. 436-439, 443-444). 11 hole on the front left leg of the boxers and one hole in the back of the boxers (Berger: T. 462-464, 467-468, 477, 480-487). There were lead particles and residue around a number of the holes but no pattern of reside such that Mr. Berger could determine a distance between the muzzle and the victim. Under controlled conditions, he had never seen a gunshot residue pattern where a gun was fired at a distance of greater than four feet. He also found no evidence that any of the wounds were inflicted at a distance of three inches or less. Such wounds typically produce physical damage which he did not observe in this case (Berger: T. 456, 469-473, 491-494). On April 9, 2008, Diana Ho, a criminalist with the Office of the Chief tv1edical Examiner and an expert in the field of forensic biology and DNA analysis, received four swabs relating to the shooting (Ho: T. 369-377).6 The swabs were from the loading area, trigger, grip and slide of the gun recovered at 4305 Furman Avenue. There was insufficient DNA on the magazine to create a DNA profile but Ms. Ho was able to create DNA profiles from the other three swabs. She determined that each of the three swabs contained a mixture of DNA from three individuals. She compared that DNA to a sample from the victim and determined that the DNA did not belong to the victim (Ho: T. 377-383). 6 By stipulation of the parties, the jury learned that on April 4, 2008, criminalist Meredith Gitter, of the New York City Police Department, tested the gun and bullets for finger prints but could not find any finger prints. The jury further learned that Ms. Gitter swabbed the gun that was recovered in four locations and prepared the swabs for DNA testing (T. 365-367). 12 On April 26, 2010, Ms. Ho received a DNA sample from defendant.7 Ms. Ho compared that sample to the swabs and determined that defendant could not be excluded as a contributor. Using a statistical analysis tool, she further determined that it was 348 times more probable that the DNA mixture on the trigger contained DNA from defendant and two other unrelated individuals than three unknown, unrelated individuals. She determined that it was 3.05 more probable that the DNA mixture on the slide contained DNA from defendant and two other unrelated individuals than three unknown, unrelated individuals (Ho: T. 387-399). Had defendant engaged in a struggle with the victim over the gun it would be inconsistent with these findings since Ms. Ho would expect to find some trace of DNA from the victim (Ho: T. 400-401). Detective Jonathan Fox, an expert in the field of firearms analysis and microscopic comparison, conducted ballistic testing of the gun. He determined that the gun was operable and that the three shell casings recovered at the scene of the shooting matched the gun. The bullet he received from the hospital was unsuitable for testing because the bullet had been stripped of its jacketing. He also tested the bullet that was recovered from the victim's sneaker and two bullets he received from the morgue. These bullets did not have sufficient identifying characteristics 7 By stipulation of the parties, the jury learned that on April 26, 2010, Detective Investigator Anthony Rambizes of the Bronx County District Attorney's Office obtained swabs from defendant. Det. Rambiez vouchered the swabs and sent them to the medical examiner's office (T. 367-368). 13 for testing because they were fired from a gun that had a polygonal barrel. Ordinarily, when a bullet is fired from a gun the barrel leaves unique striations and other identifying characteristics on the bullet that permit comparison. A polygonal barrel does not leave these identifying characteristics and, therefore, in ninety-nine percent of cases, a bullet fired from a polygonal barrel does not yield any match. The gun recovered in this case had a polygonal barrel (Fox: T. 497-522). The Defense The defense did not present any evidence. 8 8 After both parties rested, the court agreed to submit to the jury the charges of Murder in the Second Degree, Manslaughter in the First Degree, Manslaughter in the Second Degree, and two counts of Criminal Possession of a Weapon. 14 ARGUMENT POINT ONE THE COURT PROPERLY DECLINED TO RESTATE A FULL ALLEN CHARGE TO THE JURY WHEN INSTRUCTING THE JURY TO CONTINUE DELIBERATING FOR THE SECOND TIME. Defendant, tacitly conceding that there was legally sufficient evidence and that his conviction was not against the weight of the evidence, claims that the court erred in failing to offer a full Allen9 charge to the jury the second time it instructed the jury to continue deliberating. Specifically, defendant asserts that the judge rendered a "coercive instruction" when he instructed the jury to resume deliberations to attempt to reach a unanimous verdict, but declined to use language that ')urors were not to surrender conscientious beliefs" (defendant's brief, p. 23). Defendant's claim should be rejected. The Facts The jury began deliberating on January 20, 2012, at 11 :30 a.m. Twenty minutes later, the jury requested a read back of criminalist Ho's testimony, to see the DNA chart, to see the gun, and the definition of criminal possession of a gun. After consulting with the attorneys, the court fulfilled the jury's requests (D. 33- 34). At 2:47 p.m., the jury requested a read back of the definition of Murder in the 9 Allen v. US., 164 U.S. 492 (1896). 15 Second Degree, a read back of the definition of Manslaughter in the Second Degree, and to see all of the photographs. After consulting with the attorneys, the court fulfilled the jury's request. Deliberations resumed and at 4:15 p.m. the court dismissed the jury for the weekend (D. 46-53). On January 23, 2012, at 10:00 a.m., the jury continued deliberations. In notes from 11 :05 a.m. and 12:25 p.m., the jury requested a read back of Officer Rodriguez's testimony regarding finding the hooded sweatshirt, and for a read back of the definition of Murder in the Second Degree, Manslaughter in the First Degree, and Manslaughter in the Second Degree. The jurors also requested a hard copy of the definitions of the charges. After consulting with the attorneys and reviewing CPL§ 310.30 on the record, the court compiied with the jury's requests. At 1:45 p.m., the jury resumed deliberations and, at 3:30 p.m., sent the court a note stating "We the jury, hung jury." The court dismissed the jury at 4:00 p.m. and informed the jurors that he would respond to their note the next morning (D. 61, 67' 70, 85, 87-89). The next morning, at 10:30 a.m., the attorneys conferred regarding the note from the previous afternoon. Both the prosecutor and defense counsel suggested that the court simply instruct the jurors to continue deliberating and not give an Allen charge. The court, however, gave a full Allen charge. The court repeated its final instruction concerning the jury's "duty to deliberate together in order to arrive 16 at your final verdict," reiterating that that verdict on each count must be unanimous and that to reach a verdict the jurors must deliberate, discuss the evidence, consult with each other, listen to each other, and carefully consider the evidence. Lastly, the court instructed the jurors that they should deliberate "with a view toward reaching an agreement if that can be done without surrendering individual judgment." The court cautioned that "[e]ach of you must decide the case for yourself, but only after a fair and impartial consideration of the evidence with the other jurors. You should not surrender an honest view of the evidence simply because you want the trial to end or you are outvoted. At the same time, you should not hesitate to re-examine your views and change your mind if you become convinced that your position was not correct" (D. 98-103). At 12: 17 p.m., the jury announced that it had reached a verdict. The foreperson informed the court that the jury found defendant not guilty of second- degree murder but guilty of first-degree manslaughter and second-degree criminal possession of a weapon. When the jury was polled, however, jurors number 9 and 10 answered "No" to the question, "Is that your verdict, yes or no?" (D. 107-112). The court denied defendant's request for a mistrial as "premature" and instructed the jury that it should continue deliberating. The court stated: Ladies and gentlemen, you may recall that during my final instructions I told you that your verdict as to any count of the indictment that you consider must be 17 (D. 114) unanimous. That is, all 12 jurors must agree. Therefore, I am not going to accept this verdict. Instead, I'm going to order that the 12 jurors go back to the jury room, resume your deliberations in an attempt to reach a unanimous verdict, that is where all 12 jurors agree as to any count submitted to you. Defense counsel requested an additional charge because he was concerned that the jurors would be under the impression that the only way the trial would end is if the two dissenting jurors "follow the will of the other ten." The court declined the request and stated that its charge earlier that morning reiterated that the jurors were not required to reach a verdict and that there is no reason to believe the jurors did not understand the charge. The court dismissed the jurors at 4:15 p.m. (D. 115- 117, 123-124). The next morning, at 10: 15 a.m., the jury resumed deliberations. At 11 :04 a.m., the jury asked to rehear the cross-examination of the medical examiner, the prosecutor's redirect of the medical examiner, and the defense summation. The court conferred with the attorneys regarding the note. The prosecutor stated that the summation should not be read back because it is not evidence. The court stated that that was "the court's feeling" as well. The court asked if defense counsel had any "objection or suggestions," and counsel responded, "I do know it's not evidence. So I would be happy to do what you like." The court informed the jury that it 18 would not read back the defense summation, and then, from 12:00 p.m. until 1 :25 p.m. fulfilled the remainder of the jury's request (D. 130-132, 144). At 1 :36 P.M. the jury requested to rehear the prosecutor's direct of Mr. Berger. After consulting with the attorneys, the court fulfilled this request and the reading of the testimony concluded at 3: 15 p.m. At 3: 18 p.m., the jury announced the same verdict as before. When the jurors were polled, all twelve jurors concurred in the verdict (D. 146. 147-152). Analysis Defendant now claims that when the court instructed the jury to continue deliberating for the second time, it should have included an admonition that the jurors not "surrender their honest convictions for the mere purpose of returning a verdict" (defendant's brief, pp. 23-24). Defendant's claim should be rejected because the nature and circumstances of the court's charge and the jury's deliberations establish that the charge was not coercive. A trial "court must not attempt to coerce or compel the jury to agree upon a particular verdict." People v. La Valle, 3 N.Y.3d 88 (2004). A court may, however, encourage a deadlocked jury to continue deliberating in order to try and reach a verdict. People v. Aponte, 2 N.Y.3d 304 (2004). There is no requirement that such encouragement "parrot the language in the CJI deadlock charge," and "responses to jury notes must be tailored to the circumstances at hand." People v. Aleman, 12 19 N.Y.3d 806 (2009). Therefore, the litmus test for the propriety of such an instruction is whether the instruction, taken as a whole, was balanced. Aleman, 12 N.Y.3d at 807 (where a court believes a supplemental instruction is necessary, that instruction must "be an appropriate and balanced deadlock instruction"); People v. Simmons, 66 A.D.3d 292 (1st Dept. 2009) ("the court must issue instructions that are balanced"). Based on these principles the Court of Appeals has found error where a judge instructed that a juror "should join with his co-jurors, and should make in some respects their opinion his own" (People v. Faber, 199 N.Y. 256, 258 [ 191 O]), where a judge "instructed the jurors that they would be held incommunicado until they reached a verdict" (People v. Carter, 40 N.Y.2d 933 [ 197 6]), and where a judge instructed a jury, among other things, that "the point of this process is to get a result" (Aponte, 2 N.Y.3d at 306). Lastly, it is well established that where a jury continues to deliberate and requests additional evidence after a court's Allen charge, it undermines a claim that the charge was coercive. People v. Bonilla, 225 A.D.2d 330 (1st Dept. 1996) ("Further, the record indicates that the jury continued deliberations for some time following delivery of the Allen charge, and sent two additional notes requesting further readback of testimony and charge material before rendering a verdict, clearly negating the contention that the Allen charge was coercive"); Penple v. Smalls, 237 A.D.2d 116 (1st Dept. 1997) ("Furthermore, the record belies any claim that the Allen charge 20 was coercive, as the jury continued deliberating for another day after the charge, and it requested further readbacks of the testimony before rendering its verdict"); People v. Cannon, 236 A.D.2d 294 (1st Dept. 1997) ("Defendant's claim of coercion is negated by the circumstances that, following delivery of the Allen charge, the jury requested further readback and instructions, and continued deliberations into the next day"); People v. Gonzalez, 259 A.D.2d 631 (1st Dept. 1999) ("The fact that the jury continued deliberations for over three hours after delivery of the Allen charge and sent additional notes on other substantive issues before delivering a verdict negates the contention that the Allen charge was coercive"). Here, viewing the circumstances and the court's charge as a whole, this Court should find that the charge was not coercive. After two days of deliberations, which included numerous requests for evidence and the read-back of testimony, the jury indicated that it was hung. The next day, shortly after 10:30 a.m., in response to that note, the court gave a full, comprehensive Allen charge in which it charged the jurors not to surrender individual judgment or an honest view of the evidence (D. 98-103). Less than two hours later, after polling the jury and determining that jurors 9 and 10 did not concur in the judgment, the judge gave an abridged charge and instructed the jurors to "go back to the jury room, resume deliberations in an attempt to reach a unanimous verdict, that is where all 12 jurors 21 agree as to any counts submitted to you" (D. 114) (emphasis added). When defense counsel requested an expanded charge, the court expressly stated that given its earlier instruction from that morning, it did not believe it necessary to reiterate the entire charge. Thereafter, the jury continued to deliberate throughout the remainder of the day and the following morning, during which time the jury submitted two notes requesting the read-back of various testimony and the defense summation. At 3:18 p.m., the jury rendered a unanimous verdict (D. 146, 147-152). There was nothing coercive about these circumstances. The court provided a full, comprehensive Allen charge less than two hours prior to the second, challenged charge. Further, in the second charge the court specifically instructed the jurors that they were to "attempt to reach a unanimous verdict" (emphasis added). Therefore, nothing in the court's charge suggested that the jury was required to relinquish conscientious objections. Rather, the charge suggested the opposite, particularly when coupled with the previous charge. Indeed, given the previous charge, the use of the term "attempt" in the second charge, and the jury's continued deliberations, it is evident that the court was simply engaged in tailoring its response to "the circumstances at hand." Aleman, 12 N.Y.3d at 806. Moreover, in an analogous case, People v. Belvett, 105 A.D.3d 538 (1st Dept.) Iv. denied, 21 N.Y.3d 1040 (2013), this Court expressly stated that "the court's instruction to the jurors that they return the next day to "attempt to resolve 22 all the issues in this case [and] attempt to reach a unanimous verdict" was not "unbalanced and coercive so as to deprive defendant of a fair trial." Notably, there is no indication in Belvett that the court had previously given a fuller Allen charge, further supporting the judge's discretionary determination in this case to provide an abridged version of the charge the second time. Lastly, after the court offered the second instruction, the jury continued to deliberate and made two requests for numerous pieces of evidence, undermining defendant's claim that the charge was coercive. See Gonzalez, 259 A.D.2d at 631. Accordingly, defendant's claim that the court's charge was coercive should be rejected. POINT TWO THE COURT PROPERLY DECLINED TO READ BACK DEFENSE COUNSEL'S SUMMATION TO THE JURY. Defendant claims that the court erred in declining the jury's request for a read back of defense counsel's summation (defendant's brief, pp. 28-29). Defendant's claim should be rejected because it is unpreserved and meritless. Prior to declining the jury's request for a read back of the summation, the court conferred with the prosecutor and defense counsel. The prosecutor stated that the summation should not be read back to the jury because it is not evidence. The court agreed that this was its "feeling" as well. The court then asked defense counsel if 23 he had any suggestions or objections. Defense counsel not only declined to register an objection but agreed that the summation was not "evidence" and left the decision to the court. Accordingly, defendant's claim is not unpreserved for this Court's review and this Court should decline to review it in the interest of justice. See People v. Alicia, 21 N.Y.3d 687 (1991) (defendant's claim that the court improperly participated in a read back of testimony during summation was unpreserved); People v. Velasco, 77 N.Y.2d 469 (1991) ("Defendant's general objection to the court's refusal [to read back defense counsel's summation] did not preserve the argument, made for the first time on appeal, that the court did not exercise its discretion or, if it did so, exercised it improperly"); People v Dixon, 277 AD2d 65, 66 (1st Dept. 2000) ("Defendant has failed to preserve his current claim that the court failed to exercise its discretion in refusing the jury's request for a readback of the parties' summations, and we decline to review it in the interest of justice) (internal citation omitted"); People v. Clariot, 188 A.D.2d 281 (1st Dept. 1992) "Defendant's claim that the trial court did not properly exercise its discretion in declining to have the defense summation read into the record at the jury's request is unpreserved for appellate review as a matter of law"). Indeed, defense counsel affirmatively acquiesced in the court's determination, thereby constituting a waiver of defendant's instant claim. See People v. Jorge, 23 A.D.3d 254 (1st Dept. 2005) (a defendant's claim on appeal regarding the conduct of a juror was 24 found to be waived and unpreserved where counsel agreed that the juror should not be discharged"); People v. Cruz, 171 A.D.2d 607 (1st Dept. 1991) (a defendant's claim regarding the giving of an adverse inference charge was found to be waived where "counsel specifically agreed" that the charge should be given and registered no objection to the charge). In any event, defendant's claim is without merit. Pursuant to CPL§ 330.10, a jury may request during its deliberation "instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case." People v. Velasco, 77 N.Y.2d 469, 474 (1991). While a jury may request material of a non-evidentiary nature, such as a read back of summations, whether the summation should be read is a "matter within the trial court's discretion." Id. at 474. Defendant alleges that the court erred in failing to exercise any discretion at all and that its ruling "reflected the absence of considered, judicial judgment" (defendant's brief, pp. 29-30). This claim should be rejected. In the wake of Valesco, this Court held that "[i]t is well settled that declining to read back a summation is not an abuse of discretion." People v. Clariot, 188 A.D.2d 281 (1st Dept. 1992), Iv. denied, 81 N.Y .. 2d 838 (1993). Similarly, two years after Velasco, the Second Department found "no error in the court's refusal to comply with the 25 jury request that the defense counsel's summation be reread, since the content of counsel's summation was not evidence." People v McClary, 197 AD2d 640, 641 (2d Dept 1993). Here, after the jury requested a read back of defense counsel's summation, the court solicited the opinions of the parties and declined to read back the summation on the ground that it was not evidence. This determination reflected an exercise of the court's discretion, and an implicit finding by the court that the summation would not be helpful to the jury. Moreover, the jury had previously made numerous requests for evidence that the court comprehensively reviewed and fulfilled, demonstrating that the court was cognizant of its obligations under People v. Orama, 78 N.Y.2d 270 (1991) and CPL§ 330.10. Accordingly, the court properly exercised its discretion. 10 10 Nor was defendant deprived of the effective assistance of counsel by counsel's decision not to object to the court's determination not to read back the summation (see defendant's brief, p. 30, fn. 5). ,A~ "claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole." People v. Benevento, 91 N.Y.2d 708, 713-714 (1998). Under New York law, the standard for measuring counsel's performance has been stated as follows: "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v. Baldi, 54 N.Y.2d 137, 147 (1981). "[A] defendant's showing of prejudice [is] a significant but not indispensable element in assessing meaningful representation." People v. Caban, 5 N.Y.3d 143, 155-56 (2005). Under Federal law, defendant bears the burden of proving that counsel's performance was deficient, and that he suffered prejudice due to that deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. McDonald, 1 N.Y.3d 109, 113-14 (2003). Here, counsel offered thorough opening and closing statements, and ably cross-examined the People's witnesses. As a result of counsel's representation, defendant was acquitted of the top count, intentional murder in the second degree. In the face of this competent, holistic representation, counsel should not be held ineffective based on this single alleged error. As stated, the court properly exercised its discretion and, thus, counsel's decision not to object cannot be deemed error. In any event, even assuming arguendo that the court erred in declining to read back the summation, counsel's failure to object 26 Moreover, even assummg arguendo that the court failed to exercise discretion or abused that discretion, "[n]ot every failure to comply with a jury's request for information during deliberation is reversible error." People v. Lourido, 70 N.Y.2d 428, 435 (1987). 11 The "test is whether the failure to respond [to a jury's request for information during deliberations] seriously prejudiced the defendant." Id. at 435; People v. Rodriguez, 289 A.D.2d 60 (1st Dept. 2001) ("upon review of the record, we find that defendant was not seriously prejudiced by the court's response to the jury's request" for a read back of the summation). Here, defendant's claim that "had the jury been able to rehear the defense summation, was not "so egregious as to deprive" defendant of "his constitutional right" to the effective assistance of counsel. People v. Turner, 5 N.Y.3d 476 (2005). Such single-error cases turn on dispositive issues such as the failure to raise a meritorious statute of limitations defense. Id. They do not turn on discretionary determinations with no discernible causal link to the result of a trial. Indeed, the Court of Appeals has held that "[t]o rise to that level, the omission must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy." People v. McGee, 20 N.Y.3d 513 (2013). Judged by these principles, defense counsel's failure to object to the court's discretionary response to one of many notes from the jury, did not deprive defendant of the effective assistance of counsel. 11 Both the People and defendant rely on Lourido for their respective arguments regarding prejudice. The People, however, note that in Lourido, the court found prejudice based on the "nature of the charges and the intertwined issues." Lourido, 70 N.Y.2d 435. These issues included (1) a detective improperly testifying that a defendant, who did not understand English, shrugged in response to a question about the crime, (2) the prosecutor specifically referencing that testimony in summation, (3) the court charging the jury on both an original and amended version of a statute proscribing the quantum of force required in a rape, leaving the jury to select on its own the one to be applied, and ( 4) the court failing, over a period over three hours, to satisfy or even address the jury's request for a read back of the victim's cross-examination resulting in the jury rendering a verdict without hearing this read back. Id. These significant, intertwined errors, bear no resemblance to the facts of the instant case. Here, the judge addressed the jury's request expediently, whereupon the jury continued deliberating. 27 [defendant] might well have received a more favorable verdict" 1s highly speculative. The jury, through numerous notes, requested various pieces of evidence and read backs of testimony over the course of four days of deliberations. This suggests that that the jury thoroughly and comprehensively reviewed the evidence and discussed the case. Given the broad scope of the jury's review, it is unlikely that a read back of defense counsel's summation would have single- handedly altered the verdict. In sum, defendant's claim should be rejected because it is unpreserved. Alternatively, it should be rejected because the court properly exercised its discretion in denying the jury's request for a read back of the summation. Lastly, even if the court erred in declining the request, defendant's claim should be rejected because he cannot demonstrate that he was "seriously prejudiced" or that he received the ineffective assistance of counsel. 28 CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. STANLEY R. KAPLAN ORRIE A. LEVY Assistant District Attorneys Of Counsel September 23, 2014 29 Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent PRINTING SPECIFICATION STATEMENT This brief was prepared on a Microsoft Word processing system, in the Time New Roman typeface, font size 14 in the text and headings, and size 12 in the footnotes, and it contains 5,903 words as counted by the Microsoft Word counting system. 30