The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016APL-2015-00123 To be argued by: CATHERINE M. RENO (15 minutes requested) Supreme Court, Bronx County, Indictment Number 1762/2008 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- PATRICK MORGAN, Defendant-Appellant. BRIEF FOR RESPONDENT-APPELLEE DARCEL D. CLARK NANCY D. KILLIAN District Attorney STANLEY R. KAPLAN Bronx County CATHERINE M. RENO Attorney for Respondent-Appellee Assistant District Attorneys Bronx, New York 10451 Of Counsel (718) 838-7119 (718) 590-6523 (facsimile) Dated: February 24, 2016 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES i STATEMENT 1 QUESTIONS PRESENTED 2 THE FACTS 2 The Indictment 2 The Trial 3 The People’s Case 3 The Defense 14 The Deliberations and Verdict 15 The Direct Appeal 20 ARGUMENT 22 POINT ONE THE COURT PROPERLY CHARGED THE JURY AFTER A POLL INDICATED THAT ITS ANNOUNCED VERDICT WAS NOT UNANIMOUS, AND THE COURT’S INSTRUCTION TO CONTINUE DELIBERATION IN AN ATTEMPT TO REACH A VERDICT WAS APPROPRIATE UNDER THE CIRCUMSTANCES 22 POINT TWO DEFENDANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS NOT REVIEWABLE ON DIRECT APPEAL AND, TO THE EXTENT THE EXISTING RECORD PERMITS REVIEW, IS WITHOUT MERIT 46 CONCLUSION 62 i TABLE OF AUTHORITIES FEDERAL CASES PAGE Allen v. U.S., 164 U.S. 492 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Lowenfield v. Phelps, 484 U.S. 231 (1988) . . . . . . . . . . . . . . . . . . . . . 29,31,36,44 Sanders v. U.S., 07-CV-4346 (CPS), 2009 WL 2242302 (EDNY July 27, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . 27,36,37 Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . 29,36,37,38 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . 52 U.S. v. U.S. Gypsum Co., 438 U.S. 422 (1978) . . . . . . . . . . . . . . . . . . 31 U.S. v. Baldeo, 615 Fed. Appx. 26 (2d Cir. 2015) . . . . . . . . . . . . . . . . 27,32,37 U.S. v. Crispo, 306 F.3d 71 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 32 U.S. v. Guanti, 421 F.2d 792 (2d Cir. 1970) . . . . . . . . . . . . . . . . . . . . 50,54 U.S. v. Hynes, 424 F.2d 754 (2d Cir. 1970). . . . . . . . . . . . . . . . . . . . . 27 U.S. v. McDonald, 759 F.3d 220 (2d Cir. 2014) . . . . . . . . . . . . . . . . . passim U.S. v. Sanders, 232 Fed. Appx. 42 (2d. Cir. 2007) . . . . . . . . . . . . . . . 27, 36 U.S. v. Vargas-Cordon, 733 F.3d 366 (2d Cir 2013) . . . . . . . . . . . . . . 32,37 STATE CASES PAGE Oliver v. Justices of New York Supreme Ct. of New York County, 36 N.Y.2d 53 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,42,43 ii People v. Aleman, 12 N.Y.3d 806 (2009) . . . . . . . . . . . . . . . . . . . . . . . passim People v. Alvarez, 211 A.D.2d 425 (1st Dept. 1995) . . . . . . . . . . . . . . 27 People v. Aponte, 2 N.Y.3d 304 (2004) . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Baldi, 54 N.Y.2d 137 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 51,56 People v. Barboni, 21 N.Y.3d 393 (2013) . . . . . . . . . . . . . . . . . . . . . . 52 People v. Baxter, 232 A.D.2d 196 (1st Dept. 1996) . . . . . . . . . . . . . . . 33 People v. Benevento, 91 N.Y.2d 708 (1998) . . . . . . . . . . . . . . . . . . . . 52 People v. Berrus, 1 N.Y.3d 535 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 55 People v. Blake, 24 N.Y.3d 78 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 51,56 People v. Blanchard, 105 A.D.2d 492 (3d Dept. 1984) . . . . . . . . . . . . 32 People v. Bonilla, 225 A.D.2d 330 (1st Dept. 1996) . . . . . . . . . . . . . . 32,33 People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Cannon, 236 A.D.2d 294 (1st Dept.1997) . . . . . . . . . . . . . . 33 People v. Carter, 40 N.Y.2d 933 (1976) . . . . . . . . . . . . . . . . . . . . . . . 28,34 People v. Cortez, 22 N.Y.3d 1061 (2014) . . . . . . . . . . . . . . . . . . . . . . 54 People v. Cronin, 60 N.Y.2d 430 (1983) . . . . . . . . . . . . . . . . . . . . . . . 54,55,56 People v. Diaz, 66 N.Y.2d 744 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Faber, 199 N.Y. 256 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . 29,33,34 iii People v. Fisher, 18 N.Y.3d 965 (2012) . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Ford, 78 N.Y.2d 878 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Garcia, 25 N.Y.3d 77 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Glover, 57 N.Y.2d 61 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Gonzalez, 259 A.D.2d 631 (2d Dept. 1999) . . . . . . . . . . . . . 32 People v. Green, 56 N.Y.2d 427 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Harden, 134 A.D.3d 1160 (3d Dept. 2015) . . . . . . . . . . . . . 41 People v. Heiserman, 127 A.D.3d 1422 (3d Dept. 2015) . . . . . . . . . . 25 People v. Horn, 196 A.D.2d 886 (2d Dept. 1993) . . . . . . . . . . . . . . . . 26 People v. Howard, 22 N.Y.3d 338 (2013) . . . . . . . . . . . . . . . . . . . . . . 53 People v. Iannelli, 69 N.Y.2d 684 (1986) . . . . . . . . . . . . . . . . . . . . . . 24 People v. Keschner, 25 N.Y.3d 704 (2015) . . . . . . . . . . . . . . . . . . . . . 53,56,57,58 People v. Kin Kan, 78 N.Y.2d 54 (1991) . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Kinchen, 60 N.Y.2d 772 (1983) . . . . . . . . . . . . . . . . . . . . . . 40 People v. Kisoon, 8 N.Y.3d 129 (2007) . . . . . . . . . . . . . . . . . . . . . . . . 27,35 People v. Mabry, 58 A.D.2d 897 (2d Dept. 1977) . . . . . . . . . . . . . . . . 31 People v. McDonald, 1 N.Y.3d 109 (2003) . . . . . . . . . . . . . . . . . . . . . 52 People v. McGee, 20 N.Y.3d 513 (2013) . . . . . . . . . . . . . . . . . . . . . . . 57 iv People v. McLean, 15 N.Y.3d 117 (2010) . . . . . . . . . . . . . . . . . . . . . . 41 People v. Medina-Gonzalez, 116 A.D.3d 519 (1st Dept. 2014) . . . . . . 50 People v. Mercado, 91 N.Y.2d 960 (1998) . . . . . . . . . . . . . . . . . . . . . 41 People v. Morgan, 124 A.D.3d 406 (1st Dept. 2015) . . . . . . . . . . . . . passim People v. Osborne, 248 A.D.2d 491 (2d Dept. 1998) . . . . . . . . . . . . . 32 People v. Overlee, 236 A.D.2d 133 (1st Dept. 1997) . . . . . . . . . . . . . . 31 People v. Pagan, 45 N.Y.2d 725 (1978) . . . . . . . . . . . . . . . . . . . . . . . 27,29,35 People v. Page, 47 N.Y.2d 968 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Pavone, — N.Y.3d —, 2015 NY Slip Op 09315 (2015) . . . 51,52,58 People v. Pena, 188 A.D.2d 349 (1st Dept. 1992) . . . . . . . . . . . . . . . . 26 People v. Riley, 70 N.Y.2d 523 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Rivera, 71 N.Y.2d 705 (1988) . . . . . . . . . . . . . . . . . . . . . . . 51,52 People v. Sandoval, 34 N.Y.2d 371 (1974) . . . . . . . . . . . . . . . . . . . . . 54 People v. Satterfield, 66 N.Y.2d 796 (1985) . . . . . . . . . . . . . . . . . . . . 52 People v. Singletary, 66 A.D.3d 564 (1st Dept. 2009) . . . . . . . . . . . . . 40 People v. Smalls, 237 A.D.2d 116 (1st Dept. 1997) . . . . . . . . . . . . . . . 33 People v. Stephens, 84 N.Y.2d 990 (1994) . . . . . . . . . . . . . . . . . . . . . . 24 People v. Sullivan, 160 A.D.2d 161 (1st Dept. 1990) . . . . . . . . . . . . . 54 v People v. Torre, 33 A.D.2d 43 (3d Dept. 1969) . . . . . . . . . . . . . . . . . . 54 People v. Tucker, 55 N.Y.2d 1 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . 59 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 57,58 People v. Velasco, 160 A.D.2d 170 (1st Dept. 1990) . . . . . . . . . . . . . . 46,56,57 People v. Velasco, 77 N.Y.2d 469 (1991) . . . . . . . . . . . . . . . . . . . . . . passim People v. Velez, 150 A.D.2d 514 (2d Dept. 1989) . . . . . . . . . . . . . . . . 30 People v. Williams, 38 A.D.3d 925 (2d Dept. 2007) . . . . . . . . . . . . . . 25 People v. Williams, 56 N.Y.2d 236 (1982) . . . . . . . . . . . . . . . . . . . . . . 54 People v. Young, 55 N.Y.2d 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 40 STATE STATUTES PAGE CPL 170.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CPL 300.50(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 CPL 310.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim CPL 310.50(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CPL 310.80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,28 CPL 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,48,50 N.Y. Const. Art. VI, § 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Penal Law § 125.20(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2 vi Penal Law § 125.25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law § 265.03(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law § 265.03(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2 1 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- APL-2015-00123 PATRICK MORGAN, Defendant-Appellant. --------------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT The People submit this brief in response to Patrick Morgan’s appeal, taken by permission of the Honorable Sallie Manzanet-Daniels, Justice of the Appellate Division, First Department, entered May 7, 2015 (A1),1 from an order of the Appellate Division, First Department, entered January 6, 2015, affirming defendant’s conviction, after a jury trial, of Manslaughter in the First Degree (Penal Law § 125.20[1]) and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[1][b]) (Iacovetta, J.). People v. Morgan, 124 A.D.3d 406 (1st Dept. 2015) (A2-7). Defendant is currently incarcerated pursuant to this judgment. 1 Numbers preceded by “A” refer to the pages of the Appendix for Defendant-Appellant; Numbers preceded by “SA” refer to the pages of the Supplemental Appendix for Respondent- Appellee. 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. 2 QUESTIONS PRESENTED 1. Whether the trial court properly instructed the jurors that they should continue to deliberate and attempt to reach a verdict but did not instruct the jury, for the second time that day after a poll revealed their verdict was not unanimous, not to surrender their conscientious beliefs. The trial court could not address this issue since defendant never requested that such an instruction be given, nor did defendant raise any constitutional claims. The Appellate Division found that the trial court’s charge to the jury was not coercive, but was appropriate under the circumstances. 2. Whether defense counsel was ineffective for not objecting to the trial court’s decision to deny the jury’s request for a read back of the defense summation during deliberations. Defendant did not raise the ineffectiveness claim collaterally. The Appellate Division found that defendant’s claim that counsel was ineffective for failing to object was not reviewable on direct appeal and, in the alternative, without merit on the existing record. It further found defendant’s claim that he was deprived of a fair trial when the court denied the jury’s request for a read back of defense counsel’s summation was unpreserved and waived, and declined to review it in the interest of justice. In the alternative, it rejected the claim on the merits because declining to read a summation is not an abuse of discretion. 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], [3]) (SA1-4). 3 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 worked for 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 speak to 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 and, on April 7, 2008, went to the Office of the Chief Medical Examiner and identified Shawn’s body. In all the years she had known Shawn, he had never owned a gun. (T. Folkes: T. 13-32; SA5-25). 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 Emergency Medical Services (EMS) personnel treating a man who was lying face-up and motionless on the ground; the lower portion of the man was in the street and the upper portion was on the curb. EMS, accompanied by Officer Reyes, removed the male from the 4 scene by ambulance and Officer Kalinin began securing the crime-scene.2 Officer Kalinin learned that the man’s name was Shawn Folkes.3 He observed blood on the sidewalk and street running down westbound, and explained that East 233rd Street is slanted at a decline going west, and noted that three shell casings were recovered. Further, he explained that Supreme Edenwald Car Service is located on the south side of 233rd Street. (Kalinin: T. 34-37, 42-45, 48, 53-54; SA27-30, 35- 38, 41, 46-47). 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. 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 saw 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 2 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 into evidence and played for the jury (T. 285-91; SA206-12). 3 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; SA32-33). 5 shots. At that time, he could not tell which figure said the words or fired the gun, or what the two individuals looked like. (Konner: T. 181-84, 190, 229-39; SA145- 48, 155, 172-82). After hearing the gunshots, he saw defendant walk out of the dark area and onto the lit street. Defendant walked directly past 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 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 ground. Officer Konner began to get out of his vehicle but defendant retrieved the gun so Officer Konner remained in his vehicle. Officer Konner 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. (Konner: T. 184-86, 191, 243-48; SA148-50, 156, 183-88). 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 6 relayed defendant’s description, requested backup, and informed the dispatcher that he was pursuing an individual with a gun. By that time, defendant was walking 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 Konner 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 Konner exited his vehicle. Defendant looked at him briefly, and then ran down 235th Street and into a construction yard. Officer Konner did not pursue defendant directly because he did not believe it would be safe. Additional police units arrived shortly thereafter and sealed off the area. Officer Konner entered an unmarked police vehicle and was driven around the area in an attempt to locate defendant. (Konner: T. 186-90, 249-52, 255; SA150-54, 189-92, 195). Sergeant Robert Barnett and his partner, Joseph Stynes, were on patrol from 9:00 p.m. on April 2, 2008 to 6:00 a.m. on April 3, 2008, in an unmarked vehicle. On April 3, 2008 at approximately 12:17 a.m., Sergeant Barnett received a call on his radio that a male had been 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. Sergeant Barnett also learned that the male fled into a vacant parking lot or construction site 7 on 235th Street. At approximately 12:25 a.m., Sergeant Barnett was driving south on Furman Avenue when he observed defendant exiting the courtyard of 4305 Furman Avenue and putting on a jacket. Defendant was not wearing a hat or hooded sweatshirt but matched the description Sergeant Barnett had received in all other respects. (Barnett: T. 292-97, 306-09; SA213-18, 227-30). When defendant was approximately two car lengths away from Sergeant Barnett, Sergeant Barnett instructed Officer Stynes to stop the vehicle. When defendant was parallel with the vehicle, Sergeant Barnett identified himself as a police officer. Defendant stated that he was visiting a friend but that the friend was not home. Sergeant Barnett then exited the vehicle and approached defendant. Defendant appeared very nervous and his eyes were darting back and forth. Sergeant Barnett approached with his left arm outstretched. Defendant pushed Sergeant Barnett’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. (Barnett: T. 298-99; SA219-20). Sergeant 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 seen with the gun at the scene of the shooting. Approximately ten minutes had 8 passed since Officer Konner first called the police operator. (Konner: T. 190-206, 265; Barnett: T. 300; SA154-71, 205, 221). 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 had gone to 4305 Furman Avenue, he went to that location. There are two matching courtyards outside 4305 Furman Avenue. 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 defendant may have thrown the sweatshirt there. Detective Rodriguez decided to return in the daylight and conduct another search because it was very dark and the lighting was poor. Detective Rodriguez went to the 47 Precinct and processed defendant’s arrest. He observed cuts on the inside of defendant’s hands. (Rodriguez: T. 315-23, 335-37; SA231-39, 251-53). At approximately 12:55 a.m. on April 3, 2008, Detective Bruce Kapp of the Crime Scene Unit received notification of a shooting in the vicinity of 690 East 233rd 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 9 jacket lodged inside the right sneaker he received. Detective Kapp vouchered this evidence and ordered ballistic and forensic testing. (Kapp: T. 61-85; SA48-72). Detective 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 saw three shell casings lodged in cracks in the sidewalk but, because it was windy, and 233rd Street is on a severe incline, their placement did not assist him in determining the location where the shooter had been standing. (Kapp: T. 86-100, 147-51; SA73-87, 134-39). At approximately 4:30 a.m., Detective Kapp went to 4305 Furman Avenue and recovered the hooded sweatshirt. He then returned to the 47 Precinct and took pictures of defendant. Detective Kapp observed fresh pinch marks on the same place on the palms of defendant’s right and left 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 his neck area. Detective Kapp sent defendant’s clothing for forensic testing. (Kapp: T. 102, 110- 20, 142, 153-54; SA89, 97-107, 129, 141-42). Later that day, at approximately 12:00 p.m. Detective Rodriguez returned to the vicinity of the shooting and searched defendant’s flight route from the scene of the shooting to 4305 Furman Avenue. When he searched 4305 Furman Avenue, he located a Glock handgun in the left courtyard, near the location defendant was 10 apprehended. Detective Rodriguez notified the Crime Scene Unit. (Rodriguez: T. 323-26, 337-39; SA239-42, 253-55). As per Detective Rodriguez’s request, at approximately 12:30 p.m. on April 3, 2008, Detective Kapp went to 4305 Furman Avenue and, about thirty minutes later, recovered the 9mm semiautomatic Glock firearm from behind a planter. 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. 126-42, 165; SA113-29, 143). 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, and the bullet had exited. One was to the area just above the left ankle, and the bullet exited. Mr. Folkes also had a graze wound to a finger on his left hand. Dr. Smiddy determined that these gunshot wounds caused Mr. Folkes’ death and that the two wounds to the back of his body were consistent with his having been shot from behind.4 Dr. Smiddy did not find any gunshot residue around any of the entrance 4 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 (footnote continued on the following page) 11 wounds, but the presence of gunshot residue could have been affected by whether the victim was wearing clothing. (Smiddy: T. 411-23, 434-35; SA293-307). Jason Berger, a criminalist with the New York Police Department and an expert in trace evidence, analyzed Mr. Folkes 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. 449-61; SA317- 29). 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 leg of the jeans, and one hole on the back, lower part of the left leg of the jeans. He observed gun. She further testified, however, that bullets can change trajectory when they hit a body and, on redirect, clarified that there are many different scenarios that could have resulted in the wounds to Mr. Folkes 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. 434- 39, 442-44; SA306-11, 314-16). 12 one hole in the right sneaker. He also observed one hole on the front right of the boxers, one hole on the front left leg of the boxers and one hole in the back left side of the boxers. There were lead particles and residue around a number of the holes, but no pattern of residue 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 from the target, and there would not likely be any gunshot residue observed if the muzzle were eight to ten feet away from the target. 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, 462-64, 467-73, 480-87, 491-94; SA324, 330-32, 335-42, 343-55). On April 9, 2008, Diana Ho, a criminalist with the Office of the Chief Medical Examiner and an expert in the field of forensic biology and DNA analysis, received four swabs from the loading area, trigger, grip and slide of the gun recovered at 4305 Furman Avenue.5 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 contained a mixture of 5 By stipulation of the parties, the jury learned that on April 4, 2008, criminalist Meredith Gitter, of the New York City Police Department, examined the gun, bullets, and magazine for latent prints but could not find any; Ms. Gitter swabbed the gun that was recovered in four locations for biological trace evidence and prepared the swabs for DNA testing (T. 365-67; SA256-58). 13 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. 369-83; SA260- 74). On April 26, 2010, Ms. Ho received a DNA sample from defendant.6 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 times more probable that the DNA mixture on the slide contained DNA from defendant and two other unrelated individuals than three unknown, unrelated individuals. 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. A scenario where defendant had the gun and the victim never touched it was consistent with her findings. (Ho: T. 387-401; SA278-92). Detective Jonathan Fox, an expert in the field of firearms analysis and microscopic comparison, conducted ballistic testing of the gun, a 9mm semi- automatic handgun. He determined that the gun was operable and that the three 6 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. Detective Rambiez vouchered the swabs and sent them to the medical examiner’s office for DNA analysis (T. 367-68; SA258-59). 14 shell casings recovered at the scene of the shooting were fired from the same 9mm Glock firearm. To fire a semi-automatic handgun, one loads cartridges into a magazine, which is placed in the grip of the gun. The slide is pulled to the rear and released, which places a cartridge in the chamber; although, to fire a shot, the slide does not have to be pulled back every time, the trigger must be pressed each time to shoot the gun. (Fox: T. 497-508; SA357-68). The bullet Detective Fox 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 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 here had a polygonal barrel. (Fox: T. 511-22; SA371-82). The Defense The defense did not present any evidence.7 7 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 (T. 533, 551-52; A10, A28-29). 15 The Deliberations and Verdict After explaining the elements of each charge, the court instructed the jury that, under count one, it had to consider the charge of second-degree murder before considering the charge of first-degree manslaughter, and, in turn, first-degree manslaughter before considering second-degree manslaughter. In other words, its verdict as to second-degree murder had to be unanimous, and if all 12 jurors were to agree that defendant were guilty of this charge, it would not reach the charges of first- or second-degree manslaughter; however, if all 12 jurors agreed on a not- guilty verdict for second-degree murder, then it would consider first-degree manslaughter, and so on. Regardless of the jury’s verdict under count one, it also had to consider the weapon charges, for which a verdict also had to be unanimous. The court was careful to explain at each step that any verdict must be unanimous, and it repeated this instruction in summary form. (D. 24-26; A140-42). The jury began deliberating on January 20, 2012, at 11:30 a.m. Twenty minutes later, the jury requested a read back of a criminalist’s testimony, to review various evidence, and the definition of criminal possession of a gun. After consulting with the attorneys, the court fulfilled the jury’s requests. At 2:47 p.m., the jury requested a read back of the definition of Murder in the Second Degree, Manslaughter in the First and Second Degrees, and to see all of the photographs. After consulting with the attorneys, the court fulfilled the jury’s request. 16 Deliberations resumed, and at 4:15 p.m., the court dismissed the jury for the weekend. (D. 33-44, 46-58; A149-60, 162-74). 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 a police officer’s testimony, 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, as well as a hard copy of the charges. After consulting with the attorneys and reviewing Criminal Procedural Law (CPL) § 310.30 on the record, the court complied with the jury’s requests. At 1:45 p.m., the jury resumed deliberations and, at 3:30 p.m., it 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, 87-92; A177, 183, 186, 201, 203- 08). 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.8 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 at your final verdict,” reiterating that the verdict on each count must be unanimous 8 Allen v. U.S., 164 U.S. 492 (1896). 17 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. 98-104; A214-20). 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?” Outside the presence of the jurors, the court indicated that it intended to remind the jurors that “your verdict has to be unanimous,” and asked the attorneys if they had any other suggestions. Defense counsel requested a mistrial on the ground that the minority jurors “have a different opinion than the other ten, they are going to continue to have the position.” The court denied defendant’s request for a mistrial as 18 “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 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. (D. 107-14; A223-30). After the jury left the courtroom, 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 had reiterated that the jurors were not required to reach a verdict, and there was no reason to believe the jurors did not understand the charge. The court dismissed the jurors at 4:15 p.m. (D. 115-17, 123-24; A231-33, 239-40). The next morning, at 10:15 a.m., the jury resumed deliberations. At 11:04 a.m., the jury asked to rehear the cross- and redirect examination of the medical examiner, the testimony and cross-examination of the criminalist, and the defense summation. The court conferred with the attorneys regarding the note. They all agreed to ask the jury for clarification on the second portion of the request, since two criminalists had testified and it was unclear which portion of the testimony 19 they wanted to hear. The court solicited the parties’ views regarding the summation read back request. The prosecutor stated that the summation was not evidence and the jury should be instructed that it would 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 jury returned to the courtroom, and the court fulfilled the first portion of its request and then asked the jury to send another clarifying note. At 12:26 p.m., the jury sent a note asking for the cross- and redirect examination of both criminalists and the defense’s closing statement. The court informed the jury that it 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. 129-35, 140-44; A245-51, 256- 60). At 1:36 P.M. the jury requested to rehear the prosecutor’s direct examination of a witness. 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 it had previously reached: guilty upon the count of first-degree manslaughter and second-degree criminal possession of a weapon. When the jurors were polled, all twelve jurors concurred in the verdict. (D. 144-52; A260-66). 20 The Direct Appeal On February 4, 2014, the Appellate Division, First Department, affirmed defendant’s judgment of conviction. People v. Morgan, 124 A.D.3d 406 (1st Dept. 2015); A2-7. It found that the trial court properly instructed the jury to resume deliberation and attempt to reach a unanimous verdict, and the absence of language reminding the jurors not to surrender their conscientiously held beliefs did not deprive defendant of due process. Id. at 407; A2. Further, the trial court had charged the jury with this language two hours earlier, and it was presumed to follow these legal instructions. Id.; A2-A3. The second charge did not apply improper pressure on or criticize the two jurors who did not agree with the verdict, and, moreover, the jury did not announce its verdict until a full day after this charge was given following the read back of testimony it requested. Id.; A3. Defense counsel did not request any particular instruction, but merely conjectured that the two jurors might be led to believe that the case could not be resolved unless they submitted to the will of the other jurors. Id.; A3. The majority further found defendant’s claim that he was deprived of a fair trial when the court denied the jury’s request for a read back of defense counsel’s summation was unpreserved and waived, since defense counsel expressly agreed to the court’s proposal to deny the jury’s request, and declined to review it in the interest of justice. Id.; A3. In the alternative, it rejected the claim on the merits 21 because declining to read back a summation is not an abuse of discretion. Further, defendant’s ineffective assistance of counsel claim was unreviewable on direct appeal, and since defendant had not made a CPL 440.10 motion, the merits of the claim could not be addressed on appeal. Id. at 408; A3-4. In the alternative, defendant received effective assistance of counsel under both the federal and state standards. Id.; A4. In a dissenting opinion, Justice Manzanet-Daniels opined that the deadlock charge was unduly coercive. Morgan, 124 A.D.3d at 408 (Manzanet-Daniels, J., dissenting); A5. While the initial charge was balanced, the court’s instruction after the jury revealed its 10-2 split erroneously omitted cautionary language admonishing them to adhere to their conscientiously held views, which could have led the minority jurors to feel singled out and that they had no choice but to convince or surrender. Id.; A5-6. Beyond this, the fact that the jury twice requested a read back of the defense summation bolstered the conclusion that the holdouts were struggling with the evidence and perhaps attempting to persuade the other jurors of their views; “[i]f the holdouts favored the defense,” they, and the other jurors, may have perceived the denial of a read back as a sign of judicial disapproval of the defense position, and denied jurors who favored the defense position of ammunition to persuade their fellow jurors. Id.; A6-7. 22 ARGUMENT POINT ONE THE COURT PROPERLY CHARGED THE JURY AFTER A POLL INDICATED THAT ITS ANNOUNCED VERDICT WAS NOT UNANIMOUS, AND THE COURT’S INSTRUCTION TO CONTINUE DELIBERATION IN AN ATTEMPT TO REACH A VERDICT WAS APPROPRIATE UNDER THE CIRCUMSTANCES. Defendant asserts that the trial court’s instruction to the deadlocked jurors that they “go back to the jury room, resume your deliberations in an attempt to reach a unanimous verdict,” was coercive. This claim should be rejected because it is unpreserved, meritless, and because the instant record is factually insufficient to evaluate it. Defendant maintains that his instant claim is preserved, asserting that the court’s charge was “[d]elivered over defense objection that it was coercive of the two jurors in the minority” (defendant’s brief at 27). In reality, defense counsel belatedly asked the court to “consider” an additional charge, failed to offer the court any suggestions on how the court should respond, and never registered an objection when the court delivered its proposed charge. Prior to offering the challenged instruction, the trial court told the attorneys that it believed the proper action to take would be to remind the jury that its verdict has to be unanimous, and explained that because it was not, the jury had to resume 23 deliberations (D. 112-13; A228-29). The court inquired whether defense counsel had any suggestions. Rather than request an alternative charge or object to the charge as proposed, defense counsel went in a completely different direction, making a motion for a mistrial because the two jurors had an opinion different from that held by the other ten, and he believed that they would continue holding that position (D. 113; A229). Asking for a mistrial on the ground that the verdict is not unanimous does not encompass a complaint that the court’s suggested instruction was coercive and deprived defendant of his rights to a fair jury trial and due process. Only after the court had issued the charge and the jury had left the courtroom, and the court had explained that it was going to draw up a new verdict sheet, did defense counsel ask the court to “consider another instruction” because “I think they’re going back into the jury room with the concept that this thing doesn’t end unless there is a verdict” (D. 113-16; A229-32). Defense counsel’s suggestion was not made when the court asked him directly for his input, nor during or directly following the court’s jury instruction. Cf. People v. Torre, 33 A.D.2d 43, 46 (3d Dept. 1969) (the defendant could not complain about the instructions given when he did not take exceptions or make requests to the charge despite being given an opportunity to do so). Apparently recognizing the untimeliness of his request, defense counsel did not actually object to the given 24 charge, but instead asked the court to “consider” giving an unspecified additional charge. Significantly, the Appellate Division observed that “defense counsel did not actually request any particular instruction. Counsel merely conjectured that the two jurors who initially disagreed with the verdict might be led to believe that the case could not be resolved unless they submitted to the will of the remaining jurors.” Morgan, 124 A.D.3d at 407; A3. Moreover, defense counsel’s mistrial request and subsequent suggestion did not preserve defendant’s instant constitutional claims for this Court’s review since he failed to assert, before the trial court, that the instruction violated his state and federal constitutional rights to due process and a fair jury trial. See People v. Iannelli, 69 N.Y.2d 684, 685 (1986), cert. denied 482 U.S. 914 (1987); People v. Stephens, 84 N.Y.2d 990, 992 (1994). Defendant makes much of the fact that the Appellate Division did not expressly find his due process claim unpreserved (defendant’s brief at 30), but the aforementioned language signifies its belief that counsel’s request did not constitute a contemporaneous objection in the nisi prius court. Of course, the Appellate Division could review the issue whether it was preserved or not. Regardless, this Court must make its own jurisdictional assessment, and counsel’s belated, non-particularized request for the court to “consider” another instruction was insufficient to preserve defendant’s instant claim that the court’s charge was 25 coercive for this Court’s review. See generally People v. Heiserman, 127 A.D.3d 1422, 1424-25 (3d Dept. 2015) (the defendant’s contention that the charge was inadequate was not preserved for appellate review, since he did not make a request for a particular charge on intent and did not object to the charge as given); People v. Williams, 38 A.D.3d 925, 826 (2d Dept. 2007) (the defendant’s claim that the court’s instruction deprived him a fair trial was unpreserved where he failed to either request specific instructions with regard to a jury charge or to timely object to the charge as given).9 In any event, defendant’s claim should be denied because it is without merit. Defendant’s argument rests on the premise that “this defective verdict effectively constituted another deadlock declaration,” so the court should have delivered a full Allen charge (defendant’s brief at 26). Neither case law nor the Criminal Procedural Law, however, necessitates this. When a jury announces a verdict, but polling of the individual jurors reveals that not all jurors agree with the verdict, the court must direct the jury to resume its deliberation – nothing more is required. See 9 In support of his assertion that his instant claim is preserved, defendant cites People v. Garcia, 25 N.Y.3d 77 (2015), wherein defense counsel’s statement “[w]e don’t have that witness here” preserved the defendant’s claim that his confrontation rights had been violated by the detective testifying about what the victim’s sister had said. Garcia, 25 N.Y.3d at 82. That objection, however, was made when the detective testified that the sister had said the defendant and the victim had known each other for awhile, and followed a general objection made moments before when the detective first referenced the sister. Id. at 81-82. Here, defense counsel registered no objection or suggestion when the court directly sought his input on this issue, and his proposal that the court offer an additional instruction was not raised contemporaneously. 26 CPL 310.80 (explaining that, upon polling the jury, “If upon either the collective or the separate inquiry any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation.”); People v. Pena, 188 A.D.2d 349, 349-50 (1st Dept. 1992), lv denied 81 N.Y.2d 845 (1993) (finding no evidence of coercion where the “court simply directed the jurors to continue their deliberations inasmuch as the answer by juror number 9 indicated that there was not a verdict by the entire jury”); People v. Horn, 196 A.D.2d 886, 886 (2d Dept. 1993), lv denied 82 N.Y.2d 850 (1993) (the trial court properly sent the jury back to deliberate after a single polled juror answered “no” when asked if his verdict was guilty); compare CPL 310.50(2) (when a jury returns a legally defective verdict or one that does not conform to the court’s instructions, the court must, in pertinent part, “explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict”). Further, if defendant’s premise is accepted, any time a jury poll reveals a disagreement, a full Allen charge would be mandated, and failure to deliver one would deprive a defendant of his rights to a fair jury trial and due process, rendering CPL 310.80 unconstitutional. That cannot be the case. Moreover, all of the cases on which defendant relies involve charges in response to a jury’s deadlock note, not responses to a non-unanimous verdict, which was the case here. See People v. Aponte, 2 N.Y.3d 304, 306 (2004); People 27 v. Aleman, 12 N.Y.3d 806, 807 (2009); People v. Alvarez, 211 A.D.2d 425, 426 (1st Dept. 1995) (Rosenberger, J., dissenting), aff’d 86 N.Y.2d 761 (1995); People v. Kisoon, 8 N.Y.3d 129, 132 (2007); Smalls v. Batista, 191 F.3d 272, 275 (2d Cir. 1999); U.S. v. Baldeo, 615 Fed. Appx. 26, 27 (2d Cir. 2015); Sanders v. U.S., 07- CV-4346 (CPS), 2009 WL 2242302, at *2 (EDNY July 27, 2009) (denying post- conviction relief following U.S. v. Sanders, 232 Fed. Appx. 42 [2d. Cir. 2007]); U.S. v. Hynes, 424 F.2d 754, 756 n. 2 (2d Cir. 1970).10 The sole exception is U.S. v. McDonald, 759 F.3d 220 (2d Cir. 2014), wherein the instruction came after a poll revealed the verdict was not unanimous. There, the Second Circuit approved instructions similar those given in the case at hand, where the court stated that it was going to “send you back to continue to deliberate to see whether you can reach a unanimous verdict, in light of all of the instructions that I have given you.” McDonald, 759 F.3d at 222-23. Here, the court was not required to provide any additional explanation or deliver a full Allen charge after the jury returned the non-unanimous verdict. Accordingly, the court explained that it did not need or intend to provide any additional instruction at that juncture, especially in light of its instruction earlier that day, and stated that “[d]epending upon what, if anything we hear from the jury 10 In People v. Pagan, 45 N.Y.2d 725 (1978), the instruction came “[a]fter deliberating for five hours and finding themselves [the jurors] unable to reach a verdict.” Pagan, 45 N.Y.2d at 726. The decision does not state the medium of the message, but its wording makes clear that the instruction was not prompted by a non-unanimous verdict, as was the case here. 28 or any further note, the Court will of course, if necessary, will address that issue” (D. 116-17; A232-33). This, as well as the court’s decision to issue a comprehensive Allen charge after the jury’s prior deadlock note, even though defense counsel did not think it was necessary (D. 99-104; A215-20), indicate that the court recognized the difference in the circumstances between the deadlock note and the non-unanimous verdict. The instruction it delivered, which tracked CPL 310.80 and also referenced its earlier instructions that all 12 jurors had to agree on the verdict, was proper (D. 114; A230). It is beyond cavil that a charge that so closely follows the statute, which, as a prerequisite assumes that at least one juror has expressed that he does not agree with the verdict, is not coercive. As such, defendant’s complaint that the charge was coercive because the court failed to include “any cautionary ‘stick-to-your-guns’ language” (defendant’s brief at 31) is without merit.11 In any event, the Appellate Division rightly found that the charge at issue was appropriate under the circumstances and not coercive (Morgan, 124 A.D.3d at 11 In People v. Carter, 40 N.Y.2d 933 (1976), a poll revealed that one juror did not concur with the guilty verdict, and the court informed the jury that it would be required to deliberate further since the verdict was unacceptable for lack of unanimity. Carter, 40 N.Y.2d at 933-34. Although this Court reversed and ordered a new trial, it did not take issue with this instruction or state that any additional instruction was needed. Instead, it found coercive the court’s remarks in response to the dissenting juror’s question about what would happen if some jurors remain unconvinced, in which the court “leveled a pointed threat to the jury, and in particular to the lone juror who was not convinced of the defendant’s guilt, that they would be forced to continue their deliberations indefinitely and without any outside communication.” Id. at 934. Obviously, no such threat was made in the instant case. 29 407; A2-3). It is well established that a court may properly discharge its responsibility to avoid mistrials by encouraging a deadlocked jury to continue deliberating in order to try and reach a verdict (Pagan, 45 N.Y.2d at 727, citing People v. Faber, 199 N.Y. 256, 258 [1910]; Aponte, 2 N.Y.3d at 308), and that the nature of such encouragement “must be tailored to the circumstances at hand” Aleman, 12 N.Y.3d at 807). Thus, the propriety of such a charge is evaluated by whether, given the particular circumstances of the case, and taken as a whole, the charge was balanced. Lowenfield v. Phelps, 484 U.S. 231, 237 (1988); People v. Ford, 78 N.Y.2d 878, 880 (1991); Spears v. Greiner, 459 F.3d 200, 206 (2d Cir. 2006). Here, ninety minutes after the court delivered the comprehensive Allen charge that defendant concedes “hewed to balance” (defendant’s brief at 26, 30), in which it instructed the jurors not to surrender individual judgment or an honest view of the evidence, the jury announced the non-unanimous verdict. In response, the judge offered a brief 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 agree as to any counts submitted to you” (D. 114; A230) (emphasis added). Thereafter, the jury continued to deliberate throughout the remainder of the day and the following morning, during which time the jury submitted three notes requesting the read-back of various testimony and the 30 defense summation (D. 129-30, 135, 144; A245-46, 251, 260). At 3:18 p.m., the jury rendered a unanimous verdict. (D. 147-52; A263-66). Given these particular circumstances, there was nothing coercive about the trial court’s second charge to the jury. The court provided a full, comprehensive Allen charge less than two hours prior to the second charge. Further, in the second charge, the court specifically instructed the jurors that they were to “attempt to reach a unanimous verdict” (emphasis added) and, thus, nothing in the court’s charge suggested that the jury was required to relinquish conscientious objections. Rather, viewed holistically, the court’s dual charges suggested the opposite. Indeed, given the comprehensive nature of the first charge, the use of the term “attempt” in the second charge offered such a short time later, and the jury’s continued deliberations and requests to review evidence, it is evident that the court was simply engaged in tailoring its response to “the circumstances at hand,” and that the jury was not subject to coercion or “untoward pressure” Aleman, 12 N.Y.3d at 806. See also People v. Velez, 150 A.D.2d 514, 514 (2d Dept. 1989), lv denied 74 N.Y.2d 748 (1989) (noting that an Allen charge was unnecessary, and that the supplemental instructions, given on the same day as the charge, merely asked the jury to try to continue deliberating, were not directed to a particular juror and were not coercive). Further, defense counsel’s failure to disagree or offer an alternative to this charge when the court suggested it, or object to it when the court 31 delivered it, “indicates that the potential for coercion argued now was not apparent to one on the spot” (Lowenfield, 484 U.S. at 240). Cf. People v. Overlee, 236 A.D.2d 133, 142 (1st Dept. 1997) (explaining that the absence of contemporaneous objection is “perhaps the best indication of the absence of any real prejudice”). An additional circumstance that may shed light on whether a given charge was coercive is the timing of the verdict in relation to the charge. A very short turnaround can constitute a “coercive implication” that must be negated by the supplemental charge itself to support a finding that the charge was proper. Aponte, 2 N.Y.3d at 309 (that the jury returned a verdict only five minutes after the charge suggested that it was coerced, and the supplemental charge failed to negate this coercive implication). See also Lowenfield, 484 U.S. at 235, 240 (“We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction [30 minutes], and that this suggests the possibility of coercion”); People v. Mabry, 58 A.D.2d 897 (2d Dept. 1977) (“It is not surprising, in view of the unwarranted pressure applied to them, that the jurors, within 22 minutes thereafter, came in with a verdict.”). Cf. U.S. v. U.S. Gypsum Co., 438 U.S. 422, 462 (1978) (“this swift resolution of the issues in the face of positive prior indications of hopeless deadlock, at the very least, gives rise to serious questions” regarding the possibility of coercion ensuing from an instruction the judge gave during an ex parte meeting with the foreperson). 32 On the other hand, common sense says that a longer gap between an instruction and verdict tends to show that the instruction lacked coerciveness and that the jury engaged in additional deliberations. See U.S. v. Crispo, 306 F.3d 71, 77 (2d Cir. 2002) (“the jury did not return a verdict immediately after the Allen charge was reread at 10:25 a.m. but returned its verdict some time after lunch, which suggests that the charge was not so coercive as to end all reasoned discussion”); Baldeo, 615 Fed. Appx. at 27, citing U.S. v. Vargas-Cordon, 733 F.3d 366, 378 (2d Cir 2013) (“Moreover, after receiving the charge, the jury continued to deliberate for five and a half hours before returning a verdict of guilty. ‘Such lengthy post-instruction discussion ‘strongly indicates’ a lack of coercion.’”); People v. Osborne, 248 A.D.2d 491 (2d Dept. 1998), lv denied 92 N.Y.2d 881 (1998) (“Any alleged coercion in the charge did not result in a precipitous jury verdict since the record shows that the jury continued to deliberate for over three hours following the Allen charge before returning its verdict.”).The inference that the charge was not coercive is strengthened when, in addition to taking a longer time to reach a verdict, a jury asks for read backs or to review evidence. See e.g. People v. Bonilla, 225 A.D.2d 330, 330-31 (1st Dept. 1996), lv denied 88 N.Y.2d 933 (1996); People v. Gonzalez, 259 A.D.2d 631, 632 (2d Dept. 1999); People v. Blanchard, 105 A.D.2d 492, 493-94 (3d Dept. 1984). Indeed, the First Department has found on at least four separate occasions that a defendant’s 33 claim that a court’s instruction to the jury was coercive is undermined where, subsequent to the instruction, the jury engages in additional deliberations and requests the read back of evidence (see Bonilla, 225 A.D.2d at 330-31; People v. Smalls, 237 A.D.2d 116 [1st Dept.], lv denied 89 N.Y.2d 1100 [1997]; People v. Cannon, 236 A.D.2d 294 [1st Dept.], lv denied 89 N.Y.2d 1010 [1997]; People v. Baxter, 232 A.D.2d 196, 197 [1st Dept. 1996], lv denied 89 N.Y.2d 939 [1997]) – and over that nearly twenty-year span this Court has never upset the reasoning underlying this common-sense principle. Here, the jurors were polled and the court delivered the challenged instruction before lunch on January 24, 2012 (D. 107-14; A223-30). The jury then deliberated until 4:15 p.m., continued deliberating at 10:15 a.m. the following day, and announced that they had reached a verdict at 3:18 p.m. (D. 127, 129, 147; A243, 245, 263). Further, during this time they requested a read back of portions of three witnesses’ testimony and the defense summation (D. 129-35; A245-51), meaning they were deliberating and/or reviewing evidence for approximately eight hours after the challenged instruction before reaching their verdict. This is hardly indicative of a “coercive implication,” but instead strongly suggests that the verdict was a product of reasoned deliberations based on the evidence yielding a “concurrence of individual judgments” (Faber, 199 N.Y. at 259). 34 The propriety of the court’s charge in this case is further supported by a comparison of this case to cases in which this Court has found that a trial court’s charge created “untoward pressure to reach an agreement” (Aleman, 12 N.Y.3d at 806). For instance, this Court 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” (Faber, 199 N.Y. at 258), gave a supplemental instruction to the deadlocked jury stating that the court, “could have decided this case in ten minutes” or less and that this was a simple matter and if they could not figure it out, another jury would have to (People v. Riley, 70 N.Y.2d 523, 532 [1987]), 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). It has also found error when a court threatens or attacks a lone dissenting juror unconvinced of the defendant’s guilt, “I am going to ask you again, as I asked you yesterday, that if there is a dissenting juror in this case he should consider whether his doubt is a reasonable doubt since it is not concurred in by the majority of jurors who I think are equally as intelligent, equally observant, come from equal backgrounds as that juror” (People v. Diaz, 66 N.Y.2d 744, 746 [1985]), and also where a judge leveled a pointed threat to the lone juror who was not convinced of the defendant’s guilt, that the jury would be forced to continue its deliberations indefinitely and without any outside communication (Carter, 40 N.Y.2d at 934). The instant case bears no resemblance to these cases. 35 Defendant’s claim that courts “aware of the nature of the jury’s split must exercise particular care in its response” (defendant’s brief at 28) is unsupported. Pagan, which defendant cites as the authority for this conjecture, did not lay out defendant’s now-suggested requirement, nor did the instruction it found non- coercive include the cautionary “stick to your guns” language defendant insists is required. Pagan, 45 N.Y.2d at 726-27. Contrarily, the instruction there resembled the one delivered in the case at hand in that it called on the jury to renew deliberations and to “make every effort possible to arrive at a verdict,” did not impermissibly single out for noncompliance with the majority or improperly threaten any jurors, and did not threaten indefinite and incommunicado deliberations. Id.12 In fact, this Court has upheld “essentially neutral” instructions where the numerical split is known. See People v. Page, 47 N.Y.2d 968, 969-70 (1979) (upholding the supplemental instruction where a particular juror expressed difficulties in reaching the verdict, and the instruction was “essentially neutral and therefore did not seek to coerce a particular juror into accepting a particular view of the facts”). 12 Defendant’s reliance on People v. Kisoon, 8 N.Y.3d 129 (2007), is also unavailing. There, the court received a note indicating the numerical split among the jury, but failed to share that information with the parties, constituting a violation of People v. O’Rama, 78 N.Y.2d 270 (1991), and requiring reversal of the defendant’s conviction; no Allen charge, or supplemental charge, was given or requested. Kisoon, 8 N.Y.3d at 132, 135. 36 Defendant relies on Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999), for the proposition that, in the face of a deadlocked jury, a court is required to use cautionary language that the jurors not abandon conscientiously held beliefs. Initially, such authority by a lower federal court does not bind this Court (People v. Kin Kan, 78 N.Y.2d 54, 59-60 [1991]). Moreover, subsequent to Smalls, in Spears v. Grenier, 459 F.3d 200 (2d Cir. 2006), the Second Circuit expressly stated that it “did not create any new rule in Smalls that would replace the Supreme Court’s standard in Lowenfield that an Allen charge must be evaluated ‘in its context and under all the circumstances,’” and that the charge in Smalls was coercive because it both obligated jurors to convince one another that one view was superior and also failed to remind them not to relinquish their own conscientiously held beliefs. Spears, 459 F.3d at 206. The Second Circuit reiterated this principle in McDonald, holding that language that jurors retain their conscientious objections is only required when a court offers a full Allen charge and instructs the jurors to “reconsider their views.” McDonald, 759 F.3d at 225. By contrast, where the court simply offers a “supplemental charge” and instructs the jurors to “continue to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions I have given you,” or to “consider the facts ‘with an attempt to reach a verdict if that be possible,’” no such cautionary language is required. Id. at 223-24, citing Spears, 459 F.3d at 200 (emphasis in original). See also Sanders, 232 Fed. 37 Appx. at 43-44 (the instruction was not coercive even though it lacked the cautionary language because the “instruction did not tell the jurors that they had a duty and responsibility to convince other jurors that their views were correct, the practice that in Smalls we found objectionable when not accompanied by cautionary language”). Significantly, in McDonald, the Second Circuit upheld an instruction that did not contain the cautionary language that was delivered after a poll revealed that juror number 11 did not concur in the announced verdict (McDonald, 759 F.3d at 222-23), undermining defendant’s claim both that such language is required generally, and specifically in cases where the court is aware of the nature of the numerical split and identity of the dissenting juror(s) (see defendant’s brief at 29, 33).13 Further, the McDonald court expressly stated that “[i]n undertaking this assessment, we adopt the viewpoint of a juror in the minority position,” but in the next breath explained that, “[a]pplying these standards, we conclude that the district court’s supplemental charge was not coercive.” McDonald, 759 F.3d at 223. 13 U.S. v. Baldeo, 615 Fed. Appx. 26 (2d Cir. 2015), does not stand for the proposition that there is a heightened necessity for cautionary language where the jury’s numerical divide is known, as defendant suggests. There, the Second Circuit upheld an instruction that included this language, but did not hold that such language was required. Baldeo, 615 Fed. Appx. at 26-27. The Second Circuit has explained that a number of factors must be considered in determining a charge’s coercive effect, and while some factors may be more important than others, none is, by itself, dispositive; “For example, although we have stressed the importance of reminding jurors in an Allen charge not to abandon their conscientiously held views, see Smalls, 191 F.3d at 279, we have also upheld instructions that lacked such a warning, see Spears v. Greiner, 459 F.3d 200, 206 (2d Cir.2006).” Vargas-Cordon, 733 F.3d at 377. 38 Moreover, and contrary to defendant’s insinuation (defendant’s brief at 32), the McDonald decision did not turn on the fact that the court’s supplemental instruction referenced its earlier instructions. Rather, McDonald found that the court’s instruction that the jury “continue deliberations ‘to see whether’ a unanimous verdict were possible” was proper. Only then did the Second Circuit observe that its conclusion was “further” supported by the trial court’s reference to its earlier instructions. Id. Here, the Appellate Division found that the jury was presumed to have followed the earlier instruction (Morgan, 124 A.D.3d at 407; A2-3), and there is no basis for assuming that the jurors disregarded it after receiving the now-challenged charge, especially considering the proximity of the charges. If this were the case, one could never assume that jurors continued to follow any prior instruction once a new instruction had been delivered. Indeed, in Spears, a case cited approvingly in McDonald, the Second Circuit upheld a trial court’s instruction that the jurors “consider the facts ‘with an attempt to reach a verdict if that be possible,’ and to continue deliberations ‘with a view toward arriving at a verdict if that’s possible,’” but did not include any reference to an earlier instruction. Spears, 459 F.3d at 206 (emphasis in original). The Spears supplemental charge, which was not coercive, did not include the cautionary language, but also did not urge jurors to listen to the views of the other jurors or attempt to persuade one another, and the original charge, which had been delivered 39 the same day, but was not referenced in the supplemental charge, did include cautionary language. Id. In addition, the court in McDonald noted that an Allen charge does not need to be issued in every instance and that a “brief request . . . that the jurors continue their deliberations will provide, in many situations, a sensible and manageable alternative to the often unwieldy instructions of a full modern Allen charge.” McDonald, 759 F.3d at 220, n. 5. Thus, far from supporting defendant’s position, the framework established by the Second Circuit explicitly condones, and even encourages, the very type of charge issued by the court in the instant case. Namely, here, the court did not instruct the jurors to reconsider their views. Rather, it gave a supplemental instruction in which it instructed the jurors to attempt to reach a unanimous verdict. Thus, as far as federal law is concerned, the court was not required to explicitly instruct the jurors not to relinquish individual judgment or conscientious objections, and its instruction was not coercive. Against the aforementioned evidence in the record suggesting that the verdict was not coerced, defendant expects this Court to join him in blindly making a series of assumptions: (1) the split was over the first-degree manslaughter (not murder) charge, (2) the holdout jurors favored a not guilty verdict on first-degree manslaughter (not a guilty verdict on murder), and (3) the now-challenged charge caused the verdict. Defendant has failed to provide a sufficient record for this Court to evaluate the first two assumptions, and, to the extent that any of them can 40 be reviewed, there exist equally plausible, if not more likely, competing inferences. That being the case, this claim is not justiciable. This Court is limited to the review of questions of law (N.Y. Const. Art. VI, § 3[b]), and, as such, is not a factfinding body. It cannot make findings of fact unless the record supports only one inference; in other words, when competing inferences can be drawn from the facts and circumstances of the case, this Court cannot assume that one of them is true. See generally People v. Young, 55 N.Y.2d 419, 427 (1982) (explaining that the defendant’s assertions were nothing more than utter speculation because the opposite inference could just as easily be drawn). Defendant has failed to provide a sufficient record to evaluate his claim, and this Court cannot indulge his baseless assumptions. Ambiguity cannot marshal in defendant’s favor because it was his obligation to create a record for appellate review. See People v. Singletary, 66 A.D.3d 564, 565 (1st Dept. 2009), lv denied 13 N.Y.3d 941 (2010), citing People v. Kinchen, 60 N.Y.2d 772, 773-74 (1983) (where the jury revealed it was deadlocked 11-1, and subsequently sent a note stating that a particular juror wanted to speak with the court, and that juror told the court that her problem was not who was going which way, but that another juror was using a Blackberry and she did not wish to continue deliberating, but the court directed her to do so, the defendant failed to meet his burden of providing a factual record sufficient to permit appellate review of this claim that this juror was the 41 holdout). Cf. People v. McLean, 15 N.Y.3d 117 (2010) (unpreserved constitutional error only reviewable on direct appeal “when the error is established on the face of the record” because otherwise, the People might not elicit evidence that is crucial to a decision on the issue, and a trial court may have no reason to make findings of fact relevant to the claim). Defendant could have requested that the court poll the jury on each count separately, which would have revealed whether the holdouts felt either that defendant was guilty of second-degree murder or not guilty of first-degree manslaughter. See People v. Harden, 134 A.D.3d 1160 (3d Dept. 2015) (noting that the defendant could have asked the court to poll the jury on the counts as to which he was acquitted); People v. Mercado, 91 N.Y.2d 960, 963 (1998) (stating that the defendant could have requested a specific procedure for, or challenged the manner and conduct of, the jury polling, but instead chose to “‘let the record speak for itself’”). His failure to do so renders the claim unreviewable. A comparison to Oliver v. Justices of New York Supreme Ct. of New York County, 36 N.Y.2d 53 (1974), is useful. There, the defendant was charged with first-degree murder and, in the alternative, first-degree manslaughter; the jury announced that it had reached a partial verdict and was told to continue deliberating, but the court eventually declared a mistrial due to a hung jury. Oliver, 36 N.Y.2d at 55-56. Although the defendant had never asked the jury what the 42 partial verdict had been, the day after the trial, he moved to dismiss the murder count on the basis of conversations he had had with jurors, but the court denied the motion. Id. He brought an Article 78 proceeding to prohibit retrial on the murder count, supported by affidavits from nine of the jurors indicating that the original verdict was acquittal on murder and the jury was divided evenly on manslaughter. Id. This Court found that the defendant was estopped from using the affidavits to controvert the jury’s in-court declaration that it was deadlocked because the defense “had the opportunity of clarifying this ambiguity and did not do so,” and stated that “the defense’s failure to request clarification of the jury’s announcement indicates that it preferred to assume the jury was deadlocked as to the entire case. We hold the defendant to this assumption.” Id. at 59. Although Oliver centered on a partial verdict, the outcome should be the same here, especially because at least Oliver, albeit belatedly, offered evidence supporting his claim. Here, defendant has not marshaled any evidence in support of his position. Because defendant did not to seek clarification by asking that the jurors be polled on both counts in their announced verdict, he cannot now benefit from this failure by presuming that the holdouts favored acquittal on first-degree manslaughter. The minority jurors’ positions are not ascertainable from the record. It is entirely possible that these two jurors dissented from the initial verdict because 43 they believed that defendant should have been convicted of the top count, second- degree murder; a plausible assumption given the testimony of a witness that he heard the words “please don’t kill me” followed by gunshots, suggesting a merciless execution (Konner: T. 184, 238; SA148, 181), as well as corroborating scientific testimony, such as that Mr. Folkes’ DNA was not on the gun, but defendant’s very likely was, there was no gunshot residue on Mr. Folkes’ clothing, and the fact that Mr. Folkes had been shot twice from behind (Ho: 383, 400-01; Berger: 472-73; Smiddy: T. 417; SA274, 291-92, 299, 340-42). Indeed, it is plausible that, despite the best efforts of the minority jurors, the majority refused to convict defendant of second-degree murder and there was never any dispute between the jurors regarding the count of first-degree manslaughter. Even Justice Manzanet-Daniels, in her dissenting opinion, framed the jurors’ dispositions in speculative language: “if the holdouts favored the defense. . .” (A7) (emphasis added). In Oliver, this Court explained that it was incorrect to reason that the partial verdict could not have been a conviction because the charges were made in the alternative. The jury could have deadlocked on the murder count, proceeded to manslaughter, reaching a verdict of guilty, and then returned to the murder count once again; thus, only guilt on the murder count could be eliminated as a partial verdict. Oliver, 36 N.Y.2d at 57-58. Similarly here, in denying defense counsel’s 44 motion to dismiss the second-degree murder count, the trial court explained, “I don’t believe anything occurred when the jury was polled which would create any inference whatsoever that there was a unanimous finding of not guilty as to murder in the second degree” (D. 120; A236). Given the competing inferences, defendant cannot show that the holdouts actually favored acquittal on first-degree manslaughter. It would constitute a grave injustice if defendant were to prevail on his claim if, in fact, jurors 9 and 10 were holding out for conviction on the top count of second-degree murder. Because more than one inference can be drawn from the record, this claim is not justiciable. Notably, by contrast to the circumstances here, in a typical case in which a defendant is alleging that a modified Allen charge coerced minority jurors into changing their position and voting guilty, the position of those minority jurors is ascertainable from the face of the record, and sometimes, so is the effect the court’s charge had on those jurors. For instance, in Lowenfield v. Phelps, 484 U.S. 231 (1998), at the penalty phase of a first-degree murder trial, the jury was tasked with determining whether the defendant should be sentenced to death. The jurors twice sent notes indicating difficulty in reaching a unanimous decision. Lowenfield, 484 U.S. at 234-35. Under those circumstances, since there was only one question before the jury, it was clear from the record that an inability to reach a decision necessarily meant that certain jurors were opposed to imposing the death 45 penalty. Similarly, in Aleman, a note from the jury indicated that it was “hopelessly deadlocked” and that some of the jurors were inclined to acquit because the defendant had spent time in jail. Aleman, 12 N.Y.3d at 807. Thus, the record established that some of the jurors favored acquittal, and, moreover, the instruction, which “chided the jury for not ‘following the rules’ and implied that certain jurors had violated their promise” to comply with the law, created a “significant risk” of undue pressure on the jurors supporting acquittal. Id. Further, in Aponte, the jury sent a note indicating that it was deadlocked with respect to the charge of criminal sale of a controlled substance in the third degree. Aponte, 2 N.Y.3d at 306-07. This conclusively established that, initially, certain jurors disfavored a guilty verdict on that count. Therefore, when the trial court responded to the note by stating, in part that, “the point of this process is to get a result” and presented the jurors with the prospect of “prolonged deliberations” if they did not reach a unanimous verdict, which they did only five minutes later, it was possible to determine that the charge pressured those jurors to change their votes from not guilty to guilty. Id. at 308-09. Unlike in Aponte, here, the record is silent regarding which count the jurors disagreed on and the position of the minority jurors, and the jurors deliberated and/or reviewed evidence for approximately eight hours after the now-challenged instruction prior to reaching a verdict. An inference that the verdict was reached 46 “by a comparison of views, and by arguments among the jurors themselves” (Allen, 164 U.S. at 501) is arguably more likely than defendant’s baseless presumption that the verdict was a product of coercion. POINT TWO DEFENDANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS NOT REVIEWABLE ON DIRECT APPEAL AND, TO THE EXTENT THE EXISTING RECORD PERMITS REVIEW, IS WITHOUT MERIT. Defendant argues that counsel was ineffective for failing to object to the court’s refusal to read back defense counsel’s summation to the jury.14 Preliminarily, it is notable that, in the Appellate Division, defendant’s ineffective assistance of counsel claim was relegated to a single, brief footnote to his second point (see defendant’s Appellate Division brief at 30, n. 5). His principal argument was that he was deprived of due process and his right to counsel (as distinguished from his instant claim that he received ineffective assistance of counsel), by the 14 Defendant does not contest the Appellate Division’s determination that his claim that the trial court erred in declining to read back defense counsel’s summation was unpreserved for review. Indeed, the very basis for his claim of ineffective assistance of counsel is that counsel did not object to the court’s determination, and defendant specifically states that he suffered harm because of counsel’s “failure to preserve the issue for appeal” (defendant’s brief at 45). Accordingly, by his own concession, his underlying claim that the trial court erred in declining to read back defense counsel’s summation is not reviewable by this Court. See also People v. Velasco, 77 N.Y.2d 469, 474 (1991) (finding that, although the summations were within the literal language of CPL 310.30, the defendant’s claim that the court failed to exercise its discretion when it expressly refused to provide read backs of the summations “on the basis that they were not evidence” [People v. Velasco, 160 A.D.2d 170, 171 [1st Dept. 1990]), was unpreserved and could not be reviewed because it had been raised for the first time on appeal). 47 court’s refusal to read back the summation. Further, in her dissent, Justice Manzanet-Daniels made no mention of defendant’s ineffective assistance of counsel claim. Likewise, when defendant sought leave to appeal to this Court from Justice Manzanet-Daniels, he initially made no mention of his ineffective assistance of counsel claim and cited no cases relating to ineffective assistance of counsel. Rather, citing People v. Velasco, 77 N.Y.2d 469 (1991), and three Appellate Division cases that had nothing to do with a claim of ineffective assistance of counsel, he sought leave on the ground that confusion “reigns in the trial courts and Appellate Divisions on the matter” of the “summation read back issue,” and on the basis of “both of the trial court’s rulings at issue” (SA384). Only later, in defendant’s reply to the People’s letter in opposition to his leave application, did defendant include a brief reiteration of his footnote regarding ineffective assistance of counsel (SA386). Notwithstanding these facts, once defendant obtained leave, and was faced with the Appellate Division’s determination that his principal claim regarding the read-back of counsel’s summation was unpreserved, and with the fact that the underlying issue on which he sought and obtained leave was unreviewable by this Court, defendant changed course and transformed his previously unelaborated ineffective assistance of counsel claim, which had played no role in Justice Manzanet-Daniels’ dissent or defendant’s initial leave application, into a full-blown argument before this Court. 48 While no rule of appellate practice prohibits such transfiguration, the stark evolution of defendant’s instant argument over the course of the appellate process certainly suggests that when litigating before the Appellate Division and seeking leave of Justice Manzanet-Daniels, defendant himself did not view his ineffective assistance of counsel claim as particularly meritorious — and neither, it seems, did Justice Manzanet-Daniels. In any case, defendant’s ineffective assistance of counsel claim should be rejected because it is not reviewable on direct appeal and, alternatively, is without merit. As determined by the Appellate Division, resolution of defendant’s claim of ineffective assistance of counsel requires the elucidation of non-record facts in a motion pursuant to CPL 440.10. Morgan, 124 A.D.3d at 408; A4. The motivation behind counsel’s statement of acquiescence cannot be divined from the record. The record does not support defendant’s claim that “no trial tactic or any other legitimate explanation can explain” defense counsel’s failure to object (defendant’s brief at 44-45). For instance, it is possible that defense counsel agreed to not have the summation read back because he believed it would not have been advantageous to his client. It would have been reasonable for counsel to conclude that at the time the jury requested the read back it remained deadlocked, a far more preferable outcome than a unanimous conviction. This is consonant with counsel’s response to the “hung jury” note sent two hours prior to the charge at issue, 49 wherein he responded, “I prefer you not give them like any type of Allen charge” (D. 99; A215), as well as his request, made shortly after the non-unanimous verdict, that the alternate jurors be discharged (D. 118-22; A234-38). Counsel, therefore, may have erred on the side of caution and preferred that the jury not hear a read back of the summation and, instead, rely only on the evidentiary material that, up until that point, had been insufficient to prompt a unanimous verdict. Further, while the request for the read back may have come from the minority of jurors (who defendant now assumes favored acquittal), the request may also have come from the jurors who were in favor of conviction and who may have been seeking to demonstrate flaws in the summation. Or, the request could have come from the majority of jurors in an effort to convince the holdouts that defendant only had the intent to cause serious physical injury, not to cause death, which was the result ultimately reached without the read back. It is not the case that “the defense could only have benefitted” from an objection (defendant’s brief at 45). If any of this were counsel’s reasoning, it would constitute a legitimate trial strategy. Defendant’s assertion that counsel’s statement was an explanation for his decision not to object (defendant’s brief at 45) is pure speculation. One would be hard-pressed to articulate a reason why defense counsel would have stated his motivation for not acting at the time he does not register an objection (or his strategy for taking any action, for that matter). In other words, there is no way to 50 discern counsel’s thought process on this record. Moreover, his statement that “I know it’s [the summation] not evidence” (D. 132; A248) was an accurate observation (U.S. v. Guanti, 421 F.2d 792, 801 [2d Cir. 1970], cert. den. sub nom. Romano v. U.S., 400 U.S. 832 [1970] [summations are not evidence]; Velasco, 77 N.Y.2d at 474 [delineating evidentiary material and summations as items subject to jury requests]), not “ignorance of the law” (defendant’s brief at 45). Nonetheless, courts have found that the record is insufficient for appellate review even in the rare case where counsel has provided an explanation for his failure to make an objection. See, e.g. People v. Medina-Gonzalez, 116 A.D.3d 519, 519-21 (1st Dept. 2014), lv denied 23 N.Y.3d 1040 (2014) (finding that it was “compelled to affirm the conviction without prejudice to further proceedings in the trial court pursuant to CPL 440.10” where defense counsel failed to make a motion to re-open the suppression hearing, which the trial court said it would have granted, even though defense counsel offered an explanation for his failure, that he “was afraid he would ‘lose that jury’ and that he believed the witness ‘was on the ropes,’” since this explanation could not be accepted at face value on the extant record). Without expanding the record with a CPL 440.10 motion, any explanation as to why counsel behaved as he did does not rise above conjecture. Since CPL 440.10 does not have a time bar, nothing precludes defendant from bringing such a motion and providing clarity to ensure a fair evaluation of his claim. Thus, counsel 51 cannot be deemed ineffective without further, off-the-record inquiry into counsel’s strategy. See People v. Rivera, 71 N.Y.2d 705, 709 (1988) (explaining that the defendant failed to demonstrate that there was no legitimate reason for pursuing the claims, and that the claims were not asserted for illegitimate reasons, and, thus, the court was “asked to decide the claims of ineffective assistance of counsel by resorting to supposition and conjecture rather than a thorough evaluation of each claim based on a complete record”). Moreover, on the existing record, counsel provided effective assistance. A claim of ineffectiveness is “ordinarily assessed on the basis of the representation as a whole.” People v. Blake, 24 N.Y.3d 78, 81 (2014). 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). A “defendant, of course, bears the burden of establishing his claim that counsel’s performance is constitutionally deficient,” and, as such, “must demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged failure.” People v. Pavone, 52 — N.Y.3d —, 2015 NY Slip Op 09315, at *11 (2015), citing People v. Barboni, 21 N.Y.3d 393, 406 (2013) and People v. Satterfield, 66 N.Y.2d 796, 799-800 (1985). When such a showing is absent, it will be presumed that counsel acted in a competent manner and exercised professional judgment. Rivera, 71 N.Y.2d at 709. A reviewing court must not second-guess counsel or assess counsel’s performance “with the clarity of hindsight,” effectively substituting its own judgment of the best approach to a given case. Pavone, 2015 NY Slip Op 09315, at *11, citing People v. Benevento, 91 N.Y.2d 708, 712 (1998). 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 was not ineffective for not objecting to the court’s denial because this was a matter within the court’s discretion and not a winning argument. As Velasco makes clear, whether to read back a summation is a matter within the trial court’s discretion (Velasco, 77 N.Y.2d at 474), and the court’s determination that it would not grant the jury’s request for a read back of the defense summation did not constitute an abdication of its duty to exercise that discretion (defendant’s brief at 37-38). Rather, it reflected an implicit finding by the court that it did not “deem[] proper” a read back of the summation (CPL 310.30). The jury had previously made numerous requests for evidence that the court comprehensively 53 reviewed and fulfilled, and the court read CPL 310.30 in its entirety into the record (D. 87-88; A203-04). In fact, it agreed to grant the jury’s request for written copies of the elements of the crimes, even though CPL 310.30 did not expressly provide for this, demonstrating that the court was cognizant of its statutory obligations and available discretion (D. 85-89; A201-05). Moreover, upon receiving the jury’s request for the summation read back, the court solicited the parties’ views, strongly suggesting that the court was engaged in the exercise of its discretion.15 Accordingly, there was nothing improper about the court’s determination and, thus, counsel cannot be held ineffective for failing to object to that determination. People v. Keschner, 25 N.Y.3d 704, 723 (2015) (“we have on occasion rejected ineffective assistance challenges when it is clear to the Court that the objection or contention that was omitted would not have been a ‘winning argument’ leading to appellate reversal of a judgment of conviction and sentence”), citing People v. Howard, 22 N.Y.3d 338, 401 (2013) (counsel not ineffective for failing to request dismissal on the ground of legal insufficiency where there was sufficient evidence).16 Moreover, even if 15 Defendant contends that the court’s brief on the record statement “reflected the absence of any considered, judicial, judgment” (defendant’s brief at 38). This was not necessarily a statement of agreement with the People’s statement or a complete recitation of the court’s thought process, and this Court should not join defendant in assuming otherwise in the absence of a pellucid record. 16 There are myriad reasons why the trial court may have declined to grant the jury’s read back request. Given that summations are not evidence (Guanti, 421 F.2d at 801; Velasco, 77 (footnote continued on the following page) 54 counsel had objected, since the court had already exercised its discretion in denying the request, nothing would have changed. Defendant’s reliance on People v. Williams, 56 N.Y.2d 236 (1982) and People v. Cronin, 60 N.Y.2d 430 (1983), to show that the court here did not exercise its discretion is misplaced. Williams involved a Sandoval determination where the trial court only considered one factor, despite the fact that this Court has laid out a series of factors that must be balanced in deciding whether to allow use of a prior conviction and has held that none of the factors is dispositive. Williams, 56 N.Y.2d at 239-40, citing People v. Sandoval, 34 N.Y.2d 371 (1974). Other areas that require evaluation of specific factors in an exercise of discretion include admission of evidence and dismissals in the interest of justice. See, e.g. People v. Cortez, 22 N.Y.3d 1061, 1080 (2014) (Abdus-Salaam, J., concurring), cert. denied sub nom. Cortez v. New York, 135 S.Ct 146 (2014) (explaining that the trial court should have at least exercised some discretion by considering the probative value, prejudicial effect, and cumulative quality of the evidence before admitting it, but, N.Y.2d at 474), different considerations surround a court’s decision whether to grant a jury’s request for a read back – especially when the jury only requests one party’s summation and the opposing party takes a position against the read back. Defendant’s recitation of the reasons why reading the summation would have benefitted defendant (defendant’s brief at 39-40) also serve to show how a read back would have prejudiced the People. See, e.g. People v. Sullivan, 160 A.D.2d 161, 163 (1st Dept. 1990) (finding that re-reading only the People’s summation, over defense counsel’s objection, gave the People an additional opportunity to present their arguments and view of the evidence, creating the potential for distracting the jurors from their own recollection of the facts and from the arguments of defense counsel). 55 instead, the court ended its inquiry at relevance without addressing these other considerations); People v. Berrus, 1 N.Y.3d 535, 536 (2003) (explaining that when an action is dismissed in the interest of justice pursuant to CPL 170.40, the judge must consider, “individually and collectively,” the specific factors listed and must state reasons on the record, and reversing because “[w]hile dismissal may have been warranted, the record does not indicate that the Town Justice took into consideration the factors enumerated in CPL 170.40”). Neither CPL 310.30 nor relevant case law (Velasco, 77 N.Y.2d at 474) list any particular factors that a trial court must consider in determining whether to grant a jury’s request for a summation read back or even that it must provide a reason on the record. The instant case is not straight-forward like Cronin, where the trial court limited the expert testimony because “felt constrained” to do so “only because” such an opinion went to the ultimate question (Cronin, 60 N.Y.2d at 433), making clear that this was the sole basis for its decision. Here, the trial court’s action was far from the actual “blanket refusal” (see defendant’s brief at 40) in Cronin. The trial court here did not provide a full explanation for its denial of the jury’s request, and, rather than stating that the law prohibited the summation to be read back, it instead stated, “I’m going to decline to do so however” (D. 132; A248) (emphasis added). Further indication that the court did not fully concur with the People’s position was that it did not adopt their request to instruct the jurors that the 56 summation was not evidence, so it would not be read back to them, even though defense counsel did not object to this suggestion (D. 132; A248). Moreover, unlike in this case, the Cronin court, “announced in advance” its decision, giving no indication that it had consulted with counsel. Cronin, 60 N.Y.2d at 433. See also Velasco, 77 N.Y.2d at 474 and Velasco, 160 A.D.2d at 171, rev’d 77 N.Y.2d 469 (1991) (finding “no error” where the trial court denied the jury’s request for a read back of the summations “on the basis that they were not evidence”). Furthermore, even assuming arguendo that the court’s declination to read back the summation presents a closer question, and that an objection by counsel, if raised, “would have been successful,” the omission of an objection “was not so compelling that a failure to [raise] it amounted to ineffective assistance of counsel.” Keschner, 25 N.Y.3d at 723. Indeed, one error, “in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not ‘meaningful’ or fell below the objective standard of reasonableness required by the Federal Constitution.” Blake, 24 N.Y.3d at 81, citing Baldi, 54 N.Y.2d at 147. A finding of ineffective assistance in such single-error cases requires an error that is “so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation.” In fact, the failure to make a single argument or raise a single objection must be so clear- cut and decisive that “no reasonable defense counsel would have failed to assert it, 57 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). For instance, in People v. Turner, 5 N.Y.3d 476 (2005), counsel was ineffective for failing to raise a meritorious statute of limitations defense, and in People v. Fisher, 18 N.Y.3d 965 (2012), counsel was ineffective for failing to object to a series of “egregiously improper departures during summation” in a “highly charged, potentially outcome determinative context.” By contrast, in Keschner, this Court held that the failure to object to a jury instruction that may have been “perplexing and confusing to an attentive juror” was not so clear-cut an error as to constitute ineffective assistance of counsel. Keschner, 25 N.Y.3d at 724. This is not the clear-cut issue that defendant makes it out to be. Defendant speaks as though Velasco unequivocally held that a trial court abuses its discretion when it denies a jury’s request for a summation read back on the basis that summations are not evidence (defendant’s brief at 38, 43). Velasco’s only holding, however, was that the defendant had not preserved his claim that the trial court did not exercise its discretion or, if it did so, exercised it improperly. Velasco, 77 N.Y.2d at 474. Even though the trial court there expressly refused to provide read backs of the summations “on the basis that they were not evidence” (Velasco, 160 A.D.2d at 171), this Court did not take the opportunity to issue a general admonishment of this practice. Instead, it found “no error. . . in the court’s 58 handling of the jury’s inquiries.” Velasco, 77 N.Y.2d at 474. Arguably, the real import of Velasco is that reviewing courts are quite deferential to a trial court’s exercise of discretion, even when it is based on the fact that summations are not evidence. If this Court found no error in the facts undergirding that case, it should not find error here. Cases wherein counsel is found to be ineffective based on a single error turn on dispositive issues such as the failure to raise a meritorious statute of limitations defense (Turner, 5 N.Y.3d at 481). They do not turn on discretionary determinations with no discernible causal link to the result of a trial. Beyond this, the Appellate Division found no error in the trial court’s decision not to read back the summation to the jury, strongly signifying that the decision of whether to object was not “clear-cut and dispositive.” Keschner, 25 N.Y.3d at 723. Indeed, even defendant himself argued in his leave application that “confusion reigns in the trial courts and Appellate Divisions on the matter” of the “summation read-back issue” (SA384). This concession necessarily defeats any assertion that this is the “rare” case, where counsel’s omission was so “egregious,” and the issue so “clear- cut” and “dispositive,” so as to deprive defendant of his right to effective assistance of counsel.17 17 If defendant is unable to show that counsel was ineffective under the New York standard, his claim must also fail under the federal standard. Pavone, 2015 NY Slip Op 09315 at *12. 59 Defendant is unable to establish that counsel’s decision not to object caused him prejudice, and his assertions otherwise are no more than rank speculation. Whether to grant the jury’s request was a purely discretionary matter (see Velasco, 77 N.Y.2d at 474), and defendant cites no basis for his claim that an objection from counsel “might well have” caused the court to deliver the read back (defendant’s brief at 46). Even if it had granted the read back request, the record does not indicate that defendant “might well have received a more favorable verdict” (defendant’s brief at 47). Despite this Court’s reluctance to “intrude into the jury’s deliberative process” (People v. Tucker, 55 N.Y.2d 1, 7 [1981]), defendant implores this Court to do just that in order to make a finding of prejudice, and, once again, engages in baseless conjecture about which jurors requested the read back and their motivations for doing so, as well as how those jurors interpreted the denial, and how important the read back was to the jurors (defendant’s brief at 46).18 The jury, through numerous notes, requested various pieces of evidence and 18 Defendant avers that the jury’s asking twice for a read back of the summation “manifested the importance it attached to the matter” (defendant’s brief at 46). But, in actuality, it did not make two separate requests. The jury first asked for it in a note containing two other components. After the court fulfilled the first portion, and without addressing its summation read back request, it asked the jury to clarify its request. Thus, in its clarification note, it specified the testimony it wanted to hear and again asked to hear the summation. After this request was addressed, the jury did not renew its request, even though it sent a subsequent note asking to rehear the prosecutor’s direct examination of a witness (D. 129-35, 140-52; A245-51, A256-66). Although defendant contends that the “very tenor of the deliberations signified that the jury viewed the prosecution’s case as hardly overwhelming” (defendant’s brief at 45), his own arguments assume that the vast majority of jurors favored guilt on first-degree manslaughter. His claim that the court concurred in this view because it agreed to submit second-degree (footnote continued on the following page) 60 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. Further, the jurors had already heard counsel’s summation, and, as the court correctly instructed the jury, the summations were not evidence, their own recollection, understanding, and evaluations of the facts were controlling, and neither the parties nor the court has the power to tell the jury what the facts are or whether one is more important than another (T. 621-22; A99-100). Contrary to his assertion otherwise, defendant was not shut out from arguing that the court wrongly failed to exercise discretion; defendant could and did present this argument to the Appellate Division (see defendant’s Appellate Division brief at 28- 32), and has resurrected it in his brief in this Court (see defendant’s brief, Point II- A) and via his ineffective assistance claim. Instead, 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, particularly given counsel’s otherwise unassailable manslaughter to the jury is ineffectual; a court must submit lesser included offenses that pass the two prong test pursuant to People v. Glover, 57 N.Y.2d 61 (1982) and People v. Green, 56 N.Y.2d 427, 434 (1982), if requested to do so by either party. CPL 300.50(2); Glover, 57 N.Y.2d at 63. The court here simply found that these requirements had been met, so it granted defendant’s request (T. 538-52; A15-29). 61 representation, which included thorough opening and closing statements, and able cross-examinations of the People’s witnesses. Most notably, as a result of counsel’s representation, defendant was acquitted of the top count, intentional murder in the second degree. Accordingly, the order of the Appellate Division should be affirmed. CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. NANCY D. KILLIAN STANLEY R. KAPLAN CATHERINE M. RENO Assistant District Attorneys Of Counsel February 24, 2016 62 Respectfully Submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent