The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016APL-2015-00123 To be argued by SUSAN H. SALOMON J?etu !lork ~upreme (!Court ~ppcllatc t!ltbtgton .... jf'trgt t!lcpartmcnt THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PATRICK MORGAN, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Bronx County Ind. 1762/08 Attorney for Defendant-Appellant Center for Appellate Litigation SUSAN H. SALOMON Of Counsel 7 4 Trinity Place New York, NY 10006 Phone (212) 577-2523 Fax (212) 577-2535 ssalomon@cfal.org TABLE OF CONTENTS TABLE OF AUTHORITIES .................................... iii PRELIMINARY STATEMENT .................................. 1 QUESTIONS PRESENTED ..................................... 2 INTRODUCTION ............................................. 2 STATEMENT OF FACTS ...................................... 5 The prosecution's case ...................................... 5 The court agrees to charge on circumstantial evidence and grants the defense request to charge second-degree manslaughter as a lesser included offense .......................................... 15 Summations .............................................. 16 Deliberations and judgment ................................. 18 ARGUMENT ................................................ 23 POINT I AFTER THE JURY RENDERED A DEFECTIVE VERDICT THAT REVEALED, DURING POLLING, A 10-2 SPLIT AND THE IDENTITIES OF THE TWO JURORS IN THE MINORITY, THE COURT DELIVERED AN INSTRUCTION THAT REMINDED THE JURY THAT ITS VERDICT HAD TO BE UNANIMOUS AND ASKED IT TO RESUME DELIBERATIONS TO ATTEMPT TO REACH SUCH A VERDICT, BUT THE COURT REFUSED TO INCLUDE ANY LANGUAGE THAT JURORS WERE NOT TO SURRENDER CONSCIENTIOUS BELIEFS SOLELY TO ACHIEVE UNANIMITY - AN OMISSION THAT RENDERED THE INSTRUCTION i FATALLY COERCIVE ............................. 23 POINT II BY REFUSING TO GRANT THE JURY'S REQUEST TO REHEAR THE DEFENSE SUMMATION SIMPLY BECAUSE SUMMATIONS WERE "NOT EVIDENCE," THE COURT WRONGLY FAILED TO EXERCISE DISCRETION, OR AT LEAST ABUSED IT, AND THEREBY ALSO COMPROMISED APPELLANT'S CONSTITUTIONAL RIGHTS TO COUNSEL AND DUE PROCESS. . ................... 28 CONCLUSION .............................................. 33 STATEMENT PURSUANT TO RULE 5531 ..................... lA PRINTING SPECIFICATIONS STATEMENT .................... 2A ii TABLE OF AUTHORITIES Federal Cases Herring v. New York, 422 U.S. 853 (1975) .................................................... 28 Smalls v. Batista, 191F.3d272 (2d Cir. 1999) ............................................... 25 State Cases People v. Aleman, 12 N.Y.3d 806 (2009) ....................................................... 24 People v. Alvarez, 86 N.Y.2d 761 (1995) ....................................................... 25 People v. Aponte, 2 N.Y.3d 304 (2004) .......................................................... 24 People v. Baker, 14 N.Y.3d 266 (2010) .......................................................... 30 People v. Cronin, 60 N.Y.2d 430 (1983) ........................................................ 30 People v. Gonzalez, 259 A.D.2d 631 (2d Dept. 1999) ................................... 25 People v. Kisoon, 23 A.D.3d 18 (2d Dept. 2005) ........................................... 25 People v. Lourido, 70 N.Y.2d 428 (1987) ...................................................... 32 People v. McGee, 20 N.Y.3d 513 (2013) ........................................................ 30 People v. Pagan, 45 N.Y.2d 725 (1978) .......................................................... 25 People v. Patterson, 65 A.D.3d 705 (2d Dept. 2009) ...................................... 26 People v. Rodriguez, 289 A.D.2d 60 (l5t Dept. 2001) .................................... 29 People v. Smith, 4 A.D.3d 378 (2d Dept. 2004) ............................................. 29 People v. Turner, 5 N.Y.3d 476 (2005) ........................................................... 30 People v. Velasco, 77 N.Y.2d 469 (1991) ....................................................... 29 iii Federal Statutes U.S. Const., amends. VI, XIV ................................................................... 24, 28 State Statutes C.P.L. § 310.30 .................................................................................... 28, 29, 30 N.Y. Const., art. I, § 6 ...................................................................................... 28 N.Y. Const., art. I, §§ 2, 6 ............................................................................... 24 iv SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ----------------------------------------------------------------------)( PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PATRICK MORGAN, Defendant-Appellant. ---------------------------------------------------------------------)( PRELIMINARY STATEMENT This is an appeal from a judgment of the Supreme Court, Bronx County, rendered February 7, 2012, convicting appellant, after a jury trial, of first- degree manslaughter, P.L. § 125.20(1), and second-degree criminal possession of a weapon, P.L. § 265.03(1)(b), and sentencing him to concurrent prison terms of 18 years and five years, respectively, to be followed by five years' post-release supervision (Iacovetta, J., at suppression hearing, trial, and sentencing). Appellant filed a timely notice of appeal, and on May 22, 2012, this Court granted him leave to appeal as a poor person on the original record and typewritten briefs and assigned Robert S. Dean, Center for Appellate 1 Litigation, as counsel. Appellant is incarcerated pursuant to the judgment, and no stay has been sought. He had no co-defendants. QUESTIONS PRESENTED 1. Whether, after the jury rendered a defective verdict that revealed, during polling, a 10-2 split and the identities of the two jurors in the minority, the court delivered a fatally coercive instruction, where it reminded the jury that its verdict had to be unanimous and asked it to resume deliberations to attempt to reach such a verdict, but refused to include any language that jurors were not to surrender conscientious beliefs solely to achieve unanimity. 2. Whether, by refusing to grant the jury's request to rehear the defense summation simply because summations were "not evidence," the court wrongly failed to exercise discretion, or at least abused it, and thereby also compromised appellant's constitutional rights to counsel and due process. INTRODUCTION Shortly after midnight on April 2, 2008, a police officer, while driving home in the Bronx in an unmarked car, heard shots and saw two shadowy male figures across the street. One then emerged, gun in hand, and passed by the officer. The officer radioed a description to colleagues, who arrested the man- appellant- minutes later. The other figure, Shawn Folkes, was found dead from gunshot wounds, all to his lower extremities. 2 Indicted for second-degree (intentional) murder, first-degree manslaughter, and second-degree weapon possession, appellant stood trial before Hon. Nicholas Iacovetta and a jury. The· People adduced evidence, including appellant's DNA on the gun found near the scene of his arrest, that tied him to the incident. On the other hand, the trial revealed no motive for the killing. And the nature of the deceased's wounds, including their location and downward trajectory, raised substantial questions about the shooter's intent- and put in doubt the officer's account of what he had allegedly witnessed. Based on this, and other conflicting evidence supporting the defense theory that the shooting resulted from a struggle over the gun, the court was very comfortable in deciding to submit second-degree (reckless) manslaughter as a lesser-included offense. Though the jury acquitted appellant of murder, it convicted him of first-degree manslaughter and weapon possession. This appeal concerns the reliability and fairness of the jury's deliberations. They were protracted and produced one declaration that the jury was hung. As Point I notes, in response to the "hung" declaration, the court encouraged the jurors to reach agreement "if that can be done without surrendering individual judgment." But the jury then announced a verdict, 3 which, on polling, identified two dissenting jurors. The Point argues that, in sending the jury back for further deliberations following the defective verdict, the court wrongly refused counsel's request to again include an instruction that a verdict was not required and that no juror should surrender conscientiously held beliefs solely to achieve unanimity. Point II argues that unfairness otherwise marked the deliberations following the defective verdict- because the court refused the jury's request, made during this period, to rehear the defense summation. The court's categorical reason-that summations were not evidence - constituted legal error. Cataloguing the many and complex reasons for rejecting the People's case, counsel's summation, if reread, may have helped defense-favorable jurors in persuading their colleagues during this delicate stage of the case. The court's ruling may have cost appellant a more favorable verdict. 4 STATEMENT OF FACTS The prosecution's case At 6:00 p.m. on April 2, 2008, while at home with his wife, Tishawn Folkes, Shawn Folkes received a phone call from the owner ofEdenwald Supreme Cars, a cab company where he had been employed for a few months. The owner wanted him to come down to the "base" for a birthday party, so Folkes took a subway there. (Tishawn was not familiar with any of his co-workers.) Over the course of the evening, she called him a few times. Although the earlier calls went to voicemail, they spoke at 11 :25 p.m., at which time he said he would be home soon. But she never saw him alive again. Police came to their home at 3:00 a.m., to report that he had been killed. As far as she knew, he did not own a gun (12-32). 1 Shortly after midnight, on April 3d, Police Officer Robert Konner, out of uniform, was driving home in his own (unmarked) car. As he crossed the intersection of White Plains Rd. and 233d St., he heard what sounded like two shots and saw "light" or a muzzle flash. Stopping his car, he looked out the driver's side window and saw, on the sidewalk across the street, two "shadowy" figures "in the dark area," facing each other. They were 1 Numerical references are to the trial minutes. 5 standing, Konner estimated, eight to ten feet apart. He heard someone say "'please don't kill me,"' and then heard three additional shots - for a total of five (181-84, 229-34, 238-40, 248, 268). Next, as Konner sat still in his car, with his hands on the wheel, he saw a black man, about 5' 1 O", walk into the street, which was illuminated. Holding a black semi-automatic gun in his right hand, the man-wearing a dark hoody, jeans, leather jacket, and a baseball cap -walked in front of Konner' s car. After dropping and then retrieving the gun, the man continued onto 233d St., making his way up the inclined block towards White Plains Rd. In Konner' s opinion, the man appeared to have "tunnel vision" and did not notice him (181-89, 248).2 But when Konner radioed a description, including to a marked police car that was now in the area and driving by the man, the man apparently noticed the police car. He also glanced at Konner, who had now gotten out of his car. The man then ran up 235th St., toward a construction site or yard -which Konner communicated over the radio (187-89). About ten minutes later, Konner was notified to come to 235th St. and White Plains Rd. 2 By contrast, an anonymous 911 caller, at 12:17 a.m., reported a man running (290, 573; People's exhibit 52). 6 There, he saw the man who had walked past him holding the gun - now in custody, but absent the baseball cap and hoody (190-91). Sergeant Robert Barnett, riding in the area in an unmarked car, had heard the radio run about the shooting and the man's description. Proceeding to Furman Ave., near the construction site, he saw a man coming out of the courtyard of 4305 Furman. He appeared to fit the description, but was not wearing a hoody or baseball cap. Barnett asked him what he was doing in the building. The man replied that he had wanted to visit a friend who lived there, but he was not home. As Barnett, now out of his car, began to approach, the man, his eyes darting, "pushed off' Barnett's left hand. Barnett put him on the ground and handcuffed him. No weapon or any other contraband was found on him (292-99, 309). Both Konner and Barnett identified the man as appellant (191, 299). Within an hour of appellant's arrest, Detective David Rodriguez, the lead detective on the case, found a hoody (People's exhibit 28; depicted in People's exhibit 29, a photograph) on the "pathway" to 4305 Furman (320- 22). At noon that day, he found a gun, a Glock (People's exhibit 47), on the opposite side of where he had found the hoody (315-26). According to Konner, the gun looked like the one he had seen; and the hoody looked 7 similar as well (202-07). During the processing of appellant's arrest, Rodriguez noticed scratches on the inside of both of appellant's hands and a scratch on the outside of his left hand (339-40). On hearing a radio run about the shooting at 12: 16 a.m., Detective Dimitri Kalinin responded to the scene of the shooting - "the vicinity" of 690 E. 133d St., from which the Edenwald car service could be seen. Several EMS personnel were already there, but he was able to see Folkes, lying face up, on the ground. As the block was slanted, blood could be seen to have trickled downward. After an ambulance removed the body, Kalinin secured the crime scene, to await the arrival of the Crime Scene Unit. He noted three shell casings, which are typically discharged close to where the bullets have been fired (34-52). When Detective Bruce Kapp, of the Crime Scene Unit, arrived at 2:50 a.m., he surmised that the gun used had been a semi-automatic, not a revolver, because of the presence of the shell casings. Normally, shells are cast 6' to the right of the shooter on discharge, so the shooter's position can be determined. Kapp could not, however, tell where this shooter had stood. That was because the evening had been windy and the ground was slanted. With all the casings found in the cracks of the sidewalk, they could have 8 rolled or been kicked there. Kapp also acknowledged that a struggle over the gun could affect the cast-off area of the casings (90-102, 147-48, 176). On examining the Glock found at 4305 Furman, Kapp found one bullet in the chamber and six bullets in a ten-capacity magazine (131-36). Kapp also explained that, aside from bullets, gunshot residue (GSR) comes out of a gun when fired. Its discharge, cone-shaped, dissipates over distance, with no pattern of GSR usually visible beyond three or four feet. Conversely, assuming a close-in shooting -within four feet or less -the closer the gun muzzle to the target, the more concentrated the GSR pattern (97-98). GSR could, Kapp noted, be found on the shooter as well as on the intended target. Accordingly, he ordered testing ofFolkes's clothing and appellant's (152). Like Rodriguez, Kapp examined appellant during processing. Kapp observed "pinch mark" injuries to both of appellant's palms, which, in Kapp's experience, he attributed to the improper holding of a firearm (114, 117, 120). He noted as well apparent "fresh" injuries to appellant's neck (115-16; depicted in People's exhibit 36). Detective Jonathan Fox, an NYPD firearms expert, determined that the three casings found at the scene had been fired from the gun in evidence. 9 The gun itself required a trigger-pull for each shot, he explained. But, as no trigger-pull test had been ordered in this case, he had no idea how much pressure it would take to pull the trigger of this gun (512, 524). Analysis of the gun yielded "no latent prints for identification or comparison" (Stipulation; 365). But, as Diana Ho, a criminalist with the medical examiner's office explained, DNA analysis produced some results. Examination of the gun's grip revealed a mixture of three donors, one (from a male) deemed major; the trigger also revealed a mixture of three donors, including the major donor on the grip; and the gun's slide produced at least three contributors, from which the major donor from the grip and trigger could not be excluded.3 While Ho determined a DNA profile for the major donor, she was unable to determine a profile for any of the other contributors (382-83, 392). Having received an oral DNA swab from appellant, Ho prepared his DNA profile. From that, she determined, he could not be excluded as a "contributor" to the mixture found on the gun's trigger and slide; she was unable to come to any conclusion as to the grip. Folkes, however, was excluded as a contributor in all of the samples, as his DNA appeared in none 3 The gun's magazine contained an insufficient amount of DNA for testing (403). 10 of them (382-83, 387-88, 392). In her opinion, the absence ofFolkes's DNA was "inconsistent" with a struggle over the gun between Folkes and appellant ( 400-01 ). But she also acknowledged that how long a person held or touched an item could affect how much, if any, DNA was deposited on it. And she also noted that only four sites on the gun were tested; the barrel, for example, was not ( 409). Medical Examiner Monica Smiddy performed the autopsy on Folkes. The deceased, 5'8" and 135 lbs., had sustained four gunshot wounds, all to the buttocks or below ( 415-1 7). One entrance wound - distinguished, from an exit wound, by its circular or oval shape - was located at the inner part of his right thigh; another at the top of his left buttock; a third on the front of his left thigh; and the fourth on the back of his left leg, just above his ankle (417-20). Folkes also sustained a "graze" wound- abrasion- to his fourth finger on his left hand ( 426-27). The doctor had no opinion of the order of infliction of any of the wounds ( 440). But the cause of death was "gunshot wounds of lower extremities with hemorrhage and bleeding and injuries of blood vessels" ( 431 ). The wound to Folkes's finger could have been a defensive wound (426- 27). The doctor also thought it "possible" that the two wounds to the back 11 ofFolkes's body were consistent with his having been shot from behind (425). Asked about the distance between Folkes and the shooter- "range of fire" - she noted the absence of any GSR ("fouling") or burnt powder ("stippling") on Folkes's body, which would indicate a shooting from a distance greater than three feet ( 423-25). But, acknowledging that clothing can affect the amount of stippling or fouling found on the skin, she explained that Folkes had been naked during the autopsy and she had not examined his clothing (434-35). Defense counsel specifically inquired whether Folkes's injuries were consistent with the shooter having stood facing him from a distance of eight to ten feet. She answered that they were not; that such a scenario would have produced shots to Folkes's torso, stomach, or head. Counsel also elicited that the exit wounds for the shots to the right thigh and the back of his left leg were several inches lower than their respective entrance wounds. He elicited as well that the buttock wound took a three-inch downward trajectory ( 435-42). The downward trajectory patterns, the doctor acknowledged, could be consistent with a "scenario where two individuals are wrestling with a gun, and the gun goes off pointing downward" ( 442- 43 ). But, the doctor told the prosecutor, apart from a struggle, the actual 12 positions of the shooter and Folkes, as well as how the shooter was holding the gun, could also have affected the trajectory of the bullets (444-45). Jason Berger, a Police Department criminalist, tested the hoody in evidence and the leather jacket appellant wore when arrested for GSR. He found none. In Berger's opinion, that did not rule appellant out as the shooter. In his experience, he had found GSR on a "defendant's clothing" only in the case of a possible self-inflicted wound (452, 459-62, 476-77). Berger also examined and tested Folkes's clothing that had been removed from Folkes's body at the hospital, prior to his autopsy, and taken by the police. In particular, Berger analyzed several "question holes" - possible bullet holes - found on Folkes's right sneaker, jeans, and boxer shorts. The jeans contained three holes: one in the front top of the left leg, another in the front lower part of the left leg, and the third in the lower back part of the left leg (463, 467-68, 477, 482-86). Berger found three such holes on the boxers as well, with two also in the front and one in the back ( 468, 480-81, 487). One was located on the front right leg; another on front lower part of the left leg; and the third on the upper portion of the back of the left side ( 468, 481, 487). 13 The hole in the front left leg on the boxers was not tested for GSR; Berger did not test it because it corresponded to a hole on the jeans, which would have received the GSR as the outer garment ( 469-71 ). But because two of the holes in the boxers - on the front of the right leg and in the back of the boxers - did not correspond with any on the jeans, he treated them like outer garments and therefore tested them ( 484-91 ). Looking for a "pattern" of GSR, required to make a "muzzle to target distance determination," Berger found no such pattern in connection with any of the holes he tested on Folkes's clothing (456, 469-71). In his career, in observing the firing of a weapon in a controlled environment, Berger had never seen .GSR deposited at a distance greater than four feet. According to the literature, he noted, GSR patterns generally are not seen past three feet. He opined that it would be "unlikely" to observe GSR based on a shooting of between eight to ten feet from the target (471-73). Aside from finding no pattern of GSR, Berger found no evidence that any of the wounds had been "contact" wounds, i.e., inflicted from a distance of three inches or less. Such wounds typically produce physical damage, such as ripping, to clothing, which Berger did not observe in this case (491-94). 14 The court agrees to charge on circumstantial evidence and grants the defense request to charge second-degree manslaughter as a lesser included offense At the close of the evidence, the court , with the parties' consent, agreed to charge on circumstantial evidence. It did so because the People had adduced "no real or any eyewitness testimony ... to the actual shooting," and no motive for it (548). It also granted the defense request to charge second-degree (reckless) manslaughter in addition to the two homicide charges in the indictment, second-degree murder and first-degree manslaughter. Rebuffing the prosecution's objection to charge this lesser- included offense, the court found a "very reasonable view of the evidence," "when looked at from the defense perspective," that "the death of the deceased may have been caused by a struggle over the weapon" (542-43, 549-51 ). That reasonable view, the court ruled, included the injuries appellant sustained, and the location and downward trajectory ofFolkes's wounds, which seemed "unlikely" ifthe shooter stood ten feet away (549- 51 ). Last, the court determined to submit second-degree weapon-possession based on possession outside the home or place of business (1/20/12 at 2-4). 15 Summations In summation, counsel urged why the evidence showed that Folkes had died over a struggle for the guri, not as the result of an intentional shooting by his client. For example, counsel noted appellant's own injuries, not only to his hands but to his neck. Despite the firing of multiple shots, the absence of trigger-pull evidence - which left the possibility that the gun had a "hair" trigger - also raised a substantial doubt about intent to seriously injure, much less kill. So, by counsel's analysis, did the "random" location ofFolkes's wounds -with none to his head, heart, or torso. The medical examiner, counsel reminded the jury, had great difficulty reconciling her autopsy findings with Konner' s claim that the shooting occurred while the men stood ten feet apart (578-82). Moreover, the 911 caller, who reported a man running from the scene, contradicted Konner's claim that appellant had, with deadly calm, walked by his car, gun in hand. The lone - and merely partial - eye-witness, Officer Konner, could not say who had been holding the gun during the actual shooting. As for the DNA evidence, Folkes's DNA may well have been on those parts of the gun that had not been tested, or on the magazine, which had contained an insufficient amount for testing. Last, based on the absence of a "question 16 hole" on the "right front" ofFolkes's jeans, counsel argued that Folkes likely had been shot as a result of a struggle over his own gun. Bereft of a corresponding hole in his jeans, counsel contended, the two "question holes" on the front of his boxer shorts suggested that Folkes had shot himself ( 562-82). At three points during the summation, the prosecutor lodged objections. But the court overruled each one, reminding the jury that summations were not evidence, that the jury's recollection of the evidence controlled, that it was free to request readbacks of the testimony, and that it was free to accept or reject counsel's arguments about the evidence (560, 569-70). According to the prosecutor's summation, appellant "chose death" when he "extended his arms and pulled that trigger, again and again ... " (593). It, too, addressed the DNA and GSR evidence - from the People's perspective - to urge that the evidence refuted counsel's position (see, e.g., 603-09, 614). That appellant had run from the police on seeing the marked car also "scream[ed] out" that he was guilty (597-98). 17 Deliberations and judgment The jury was given the case at 11 :30 a.m. on January 20, 2012 (a Friday) (D 33).4 It had been told to consider the three homicide charges in order of their severity, and to consider each lesser charge only in the event of a unanimous acquittal of the higher charge (D 24-25). Twenty minutes after receiving the case, the jury asked to rehear the testimony of criminalist Ho and the tape of the 911 call, to see the DNA chart that Ho had made and to see the gun, and for the definition of "criminal possession of a gun" (D 34; court exhibit 3). After complying with these requests, the court next heard from the jury at 2:47 p.m., when it asked for a rereading of the three homicide charges and to see all the photographs in evidence (D 46; court exhibit 4). The court honored these requests, after which deliberations resumed from 3 :20 p.m. to 4: 15 p.m., at which point the court sent the jury home for the weekend (D 54-55). At 11 :05 a.m. on January 23d (Monday), the jury sent a request, clarified at 12:25 p.m., to rehear Officer Rodriguez's testimony "about the part when he found the hoody," and for definitions of the homicide charges 4 Numerical references preceded by "D" refer to the trial minutes beginning on January 20, 2012. They contain half of the court's charge and the entirety of the jury's deliberations. 18 (D 61, 70; court exhibits 5 & 6). The court responded from 12:50 p.m. until 1 :20 p.m. (D 78-84). At 1 :45, the jury asked for the homicide definitions in written form (D 85; court exhibit 7). The court provided the relevant portion of its instructions (D 89). At 3 :30, the jury sent a note stating "We the jury, hung jury" (D 89-90; court exhibit 8). At 4:00 p.m., the court told the jurors that it was discharging them for the day and would address their note the next morning (D 92). Shortly after 10:30 the next morning, the court, with the parties' agreement, told the jury that it had been deliberating for about 8 Yi hours and that the court was satisfied that it should deliberate further; reminded the jurors that their verdict had to be unanimous; asked them to reason with each other with open minds and be open to changing their minds; but also cautioned that no juror was to "surrender[] individual judgment" or "surrender an honest view of the evidence simply because [he or she] want[s] the trial to end or [is] outvoted" (D 98, 103). At 12: 17 p.m., the jury announced that it had reached a verdict (D 107). According to the foreperson, the jury found appellant not guilty of second- degree murder but guilty of first-degree manslaughter and second-degree criminal possession of a weapon (D 109-10). But when polled, at counsel's 19 request, the jurors revealed that they were split 10-2, with jurors 9 and 10 answering "No" to the question, "Is that your verdict, yes or no?" (D 111- 12). Denying counsel's request for a mistrial as "premature," the court charged the jury as follows: 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 114). Concerned about the two dissenting jurors, counsel requested an additional instruction that would assuage their concern that "this thing doesn't end unless there is a verdict, ... [that] the only way that things ever[] come[] to an end is if they follow to the will of the other ten" (D 115-16). The court declined to charge anything more, stating that its instructions earlier that morning had noted that a verdict was not required and that nothing suggested the jurors had not understood them (D 116-1 7). Shortly after 4: 15 p.m., the court sent the jury home for the day, no verdict having been reached (D 123-24). 20 At 11 :04 a.m., the next morning (January 25th), the jury asked to rehear selected testimony of the medical examiner and "criminalist" and also asked for a reading of the defense summation (D 129-32; court exhibit 11). In response to the court's request for clarification as to whether it wanted to hear criminalist Ho or Berger, the jury sent another note that specified "both criminalists" and also noted "And please read the closing statement by the defense attorney" (D 135; court exhibit 12). The court honored the requests for the readback of testimony (D 133, 142). As for the summation-readback request, the court told the jury: "The court is going to decline your request to have the closing statement read back to you of the defense, all right. So that's declined" (D 141 ). In the colloquy that preceded and produced this ruling, the court had elicited the prosecutor's position that the summation was "not evidence" and that the jury be told that its request was denied for that reason (D 131 ). The court replied, "That's the Court's feeling." Asked if he had any "objection or suggestions," counsel responded: "I do know it's not evidence. So I would be happy to do what you like" (D 132). At 1 :36 p.m., the jury asked to hear additional portions of Berger's testimony (D 144-45; court exhibit 13). The rereading concluded at 3:15 21 p.m., at which point deliberations resumed (D 146). At 3: 18 p.m., the jury announced its verdict. It was the same as before, but this time, on polling, all the jurors said they agreed (D 147-52). 22 .ARGUMENT POINT I AFTER THE JURY RENDERED A DEFECTIVE VERDICT THAT REVEALED, DURING POLLING, A 10-2 SPLIT AND THE IDENTITIES OF THE TWO JURORS IN THE MINORITY, THE COURT DELIVERED AN INSTRUCTION THAT REMINDED THE JURY THAT ITS VERDICT HAD TO BE UNANIMOUS AND ASKED IT TO RESUME DELIBERATIONS TO ATTEMPT TO REACH SUCH A VERDICT, BUT THE COURT REFUSED TO INCLUDE ANY LANGUAGE THAT JURORS WERE NOT TO SURRENDER CONSCIENTIOUS BELIEFS SOLELY TO ACHIEVE UNANIMITY - AN OMISSION THAT RENDERED THE INSTRUCTION FATALLY COERCIVE. At the end of the second day of deliberations, the jury declared itself "hung," giving no other information about the nature of its division. The next morning, the court responded with an instruction that asked the jurors to reason together to seek to reach unanimous agreement, provided that none of them surrendered individual judgment or an honest assessment of the evidence solely to end the trial or because he or she was outvoted. A few hours following that instruction, the jury announced it had reached a verdict - acquitting appellant of murder but convicting him of first-degree manslaughter and second-degree weapon possession - but polling revealed that two of the jurors disagreed with it. 23 Though this defective verdict effectively constituted another deadlock declaration, the court's response bore no resemblance to its earlier one. It directed the jury simply to "resume [its] deliberations in an attempt to reach a unanimous verdict, that is where all 12 jurors agree as to any count submitted." Delivered over defense objection that it was coercive of the two jurors in the minority, the instruction violated appellant's federal and state constitutional rights to a fair jury-trial and to due process. U.S. Const., amends. VI, XIV; N.Y. Const., art. I, §§ 2, 6. Supplemental charges addressing a jury's declaration of deadlock may encourage jurors to try to reach a verdict "one way or the other." But the charge must not coerce jurors "with untoward pressure to reach an agreement." People v. Aponte, 2 N.Y.3d 304, 308 (2004) (internal quotation marks and citations omitted). To avoid coercion and achieve balance, the charge should contain some "encouraging language" conveying that jurors should not surrender their honest convictions for the mere purpose of returning a verdict. Id. at 309. Accord People v. Aleman, 12 N.Y.3d 806, 807 (2009) (citing, with approval, "the CJI deadlock charge" containing such language); see CJI2d[NY] Deadlock Charge ("I want to emphasize that I am not asking any juror to violate his or her conscience, or 24 to abandon his or her best judgment. Any verdict you reach must be the verdict of each juror, and not mere acquiescence in the conclusion of others.");~' People v. Alvarez, 86 N.Y.2d 761, 763 (1995) (approving charge that told jurors to '"stick to [their] guns"' if convinced of the "'righteousness' of their positions"); People v. Gonzalez, 259 A.D.2d 631, 631 (2d Dept. 1999) (charge appropriately told jurors not to change their minds "'simply for an arbitrary reason"'). A court aware of the nature of the jury's split must exercise particular care in delivering deadlock instructions. See Smalls v. Batista, 191 F.3d 272, 280 (2d Cir. 1999) ("highlight[ing]" the "necessity" for "cautionary language" in such circumstances, and noting that a suspect charge is analyzed "from the position of a minority juror"). Jurors may not be "impermissibly singled out for noncompliance with the majority." People v. Pagan, 45 N.Y.2d 725, 727 (1978). Cf. People v. Kisoon, 23 A.D.3d 18, 23- 24 (2d Dept. 2005) (defendant suffered "actual prejudice" where the court, in failing to disclose to counsel the note revealing the jury's 10-2 vote for conviction, precluded counsel from requesting an instruction that would have stressed the importance of jurors' not surrendering conscientiously- 25 held views merely for the sake of returning a verdict), affd 8 N.Y.3d 129 (2007). Here, the court hewed to the principles of balance when the jury first announced that it was "hung," encouraging the jurors to reach agreement "if that can be done without surrendering individual judgment." But after the jury then revealed its 10-2 split in rendering the defective verdict, the court abdicated its responsibility. Rejecting the verdict because it lacked unanimity, the court directed the jury to resume its deliberations in an effort to render a unanimous one as to any count submitted. Counsel's protest hit the mark. He voiced concern that the two minority jurors could feel that "the only way that things [would] ever[] come[] to an end is if they follow to the will of the other ten." The court's refusal to add any balancing language effected prejudicial error. Cf. People v. Patterson, 65 A.D.3d 705, 706 (2d Dept. 2009) ("[T]he court should have instructed the jury, in response to defense counsel's request, as to its duty to consider the evidence impartially and to try to reach an agreement without any juror surrendering his or her individual judgment."). Its rationale - that its earlier instruction, delivered in response to the jury's declaration that it was "hung," sufficed - was seriously flawed. 26 Circumstances had changed between the "hung" -jury announcement - where the court had no idea of the nature of the split - and the public identifying of two holdouts. The latter circumstance warranted heightened protection against a coerced verdict - not the assumption that the minority jurors could summon the language from the earlier charge. In fact, the majority jurors may have seized on the fact that the court's post-polling instruction did not refer to the earlier charge in any way - to argue its inapplicability. The two minority jurors may well have felt "impermissibly singled out for noncompliance with the majority." The verdict that followed-with the two now joining the ten - must be reversed. 27 POINT II BY REFUSING TO GRANT THE JURY'S REQUEST TO REHEAR THE DEFENSE SUMMATION SIMPLY BECAUSE SUMMATIONS WERE "NOT EVIDENCE," THE COURT WRONGLY FAILED TO EXERCISE DISCRETION, OR AT LEAST ABUSED IT, AND THEREBY ALSO COMPROMISED APPELLANT'S CONSTITUTIONAL RIGHTS TO COUNSEL AND DUE PROCESS. During its labored deliberations, after declaring itself hung and then rendering a defective, nonunanimous, verdict, the jury twice asked to have the defense summation reread. Without engaging in any analysis of, for example, competing interests or concerns about prejudice, the court simply rejected the request because the summations were not evidence. This blanket refusal violated the governing statute, C.P .L. § 310.30, and also subverted appellant's constitutional rights to counsel and due process. U.S. Const., amends. VI, XIV; N.Y. Const., art. I,§ 6. See Herring v. New York, 422 U.S. 853, 858 (1975) ("There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial."). The judgment may not stand. 28 C.P.L. § 310.30 provides, in relevant part: At any time during its deliberations, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. As the Court of Appeals recognized in People v. Velasco, 77 N.Y.2d 469 ( 1991 ), the jury may request summations, as "material ... pertinent to its deliberations." Id. at 474. A trial court considering such a request must, therefore, exercise its discretion regarding it. See id. Compare, ~' People v. Rodriguez, 289 A.D.2d 60, 61 {1 51 Dept. 2001) (court's apparent absolute refusal of summation readback deemed error), with People v. Smith, 4 A.D.3d 378, 378 (2d Dept. 2004) (finding that trial court "properly exercised its discretion in refusing the request"). Here, the court failed to exercise the requisite discretion. True, upon receiving the jury's initial request, the court solicited the parties' views. But the prosecutor simply proffered the observation that the summation "[ o ]bviously [was] not evidence" and asked that the request be denied for that reason. The court replied that it shared the prosecutor's "feeling." As 29 for defense counsel, after voicing his knowledge that the summation was not "evidence," he left the decision to the court. The court's resultant statement to the jury - "that's declined" - reflected the absence of considered, judicial, judgment. Whether based on its misapprehension of the scope of § 310.30 or unawareness ofVelasco's explicit holding, the court's summary ruling constituted error. Cf. People v. Cronin, 60 N.Y.2d 430, 433 (1983) (court committed legal error where it "failed to exercise its discretion because it erroneously perceived that it had no discretion to exercise").5 Assuming, arguendo, that the court implicitly exercised its discretion, its refusal to allow the readback constituted an abuse. The summation contained no improprieties, as the court itself implicitly agreed, overruling each of the prosecutor's three objections (560, 569-70) .. Nor, given the jury's numerous requests for readbacks of discrete testimony (e.g., "Officer Rodriguez's testimony about the part when he found the hoody"; the criminalists' and medical examiner's testimony), could the summation have 5 By parity of reasoning, counsel's endorsement of the court's readback refusal- saying he would be "happy to do" what the court "like[ d]" - did not constitute a considered legal position or waiver. Considering counsel's misguided remarks, he rendered ineffective assistance under the state and federal constitutions - for even "a single [omission] in an otherwise competent performance [may be] so egregious as to deprive a defendant of his constitutional right." People v. Turner, 5 N.Y.3d 476, 480 (2005) (internal quotation marks and citations omitted); accord People v. McGee, 20 N.Y.3d 513, 518 (2013); People v. Baker, 14 N.Y.3d 266, 270 (2010). 30 distracted the jury from its own recollection of the facts - which, the court had repeatedly instructed, controlled. Rather, as detailed ante at 16-17, the defense summation contained counsel's extended analysis of the evidence, culling from it inferences that called for his client's acquittal, at the very least of intentional conduct leading to Folkes's death. For instance, counsel stressed the seeming randomness ofFolkes's wounds, their infliction inconsistent with Konner's claim that the shooter aimed directly from ten feet away, and their location - essentially to Folkes's legs - hardly bespeaking an intent to kill or seriously injure. That appellant himself suffered injuries to his hands and to his neck also pointed to a struggle, not a cold-blooded shooting (e.g., 574, 579-81). Given the timing and nature of the deliberations preceding the readback request, the court's refusal risked heightened prejudice to the defense. Not only had the jury engaged in deliberations extending over four days at the time of the request, but its nonunanimous verdict, on polling, identified the two jurors in the minority. If those two jurors had favored the defense, they - as well as others -may well have viewed the court's readback denial as 31 a rebuff or signal of judicial disapproval directed to the defense position.6 At the same time, the denial deprived any defense-favorable jurors of analytic ammunition that might have persuaded their colleagues. After all, by the time of the request, five days had passed since the jury had heard the summation - surely making its detailed interpretation of the evidence exceedingly difficult to recall. The court's readback refusal requires reversal because it "seriously prejudiced the defendant." People v. Lourido, 70 N.Y.2d 428, 435 (1987). As matters stood, the jury hardly considered the prosecution's case overwhelming - as its lengthy deliberations and acquittal on the murder count showed. 7 Had the jury been able to rehear the defense summation, appellant might well have received a more favorable verdict. 6 On receiving the nonunanimous verdict, the court simply told the jury that its verdict had to be unanimous and asked the jury to attempt to reach such a verdict. This instruction could only have reinforced jurors' views that dissent would meet with judicial disapprobation. 7 The court, too, apparently viewed the prosecution's case as far from overwhelming, as it revealed during colloquy with the parties at the close of the evidence. Specifically, in agreeing to charge on circumstantial evidence and to submit second- degree manslaughter, it told the parties that Konner was not a "real" eyewitness; that the People had established no motive for the shooting; that Konner could not say who had uttered "'please don't kill me'"; and that the evidence - including the downward trajectory of at least two of the four bullet wounds, as well as appellant's wounds to his palms and neck - suggested a struggle over the gun, not a shooting from 8-1 O'. In the court's opinion, all this added up to a "very reasonable view of the evidence" that Folkes incurred his wounds in a struggle over the gun, "which would fall under the definition of reckless" (548-51). 32 CONCLUSION THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Susan H. Salomon Of Counsel July 2014 Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant 33 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ----------------------------------------------------------------------){ PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PATRICK MORGAN, Defendant-Appellant. ---------------------------------------------------------------------){ STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was 1762/08. 2. The full names of the original parties were People of the State of New York against Patrick Morgan. There has been no change of parties on this appeal. 3. This action was commenced in Supreme Court, Bronx County. 4. This action was commenced by the filing of an indictment. 5. This is an appeal from a judgment of the Supreme Court, Bronx County, rendered February 7, 2012, convicting appellant, after a jury trial, of first-degree manslaughter, P.L. § 125.20(1 ), and second-degree criminal possession of a weapon, P.L. § 265.03(1)(b), and sentencing him to concurrent prison terms of 18 years and five years, respectively, to be followed by five years' post-release supervision (Iacovetta, J., at suppression hearing, trial, and sentencing). 6. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. lA PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect®, using a 14-point Times New Roman font, and totaled 6865 words. 2A