The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016 OFFICE OF THE DISTRICT ATTORNEY, Bronx County ROBERT T. JOHNSON 198 East 161st Street (718) 838-6693 District Attorney Bronx, New York 10451 Fax (718) 590-6523 July 2, 2015 The Honorable Judges Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Patrick Morgan APL-2015-00123 SSM Consideration Your Honors: The People seek affirmance of a decision by the Appellate Division, First Department, which affirmed defendant’s conviction of Manslaughter in the First Degree and Criminal Possession of a Weapon in the Second Degree. People v. Morgan, 124 A.D.3d 406 (1st Dept. 2015). In relevant part, the Appellate Division found that under the circumstances, the trial court’s deadlock charge to the jury was not coercive. Id. The Appellate Division further found that defendant’s claim that counsel was ineffective for failing to object to the trial court’s refusal to read defense counsel’s summation back to the jury was not reviewable on direct appeal and, in the alternative, without merit given the existing record. Id. The Facts Relevant to Defendant’s Claims1 1 The claims raised in defendant’s letter to this Court relate solely to the trial court’s instructions to the jury during deliberations and its response to the jury’s request for a read-back of defense counsel’s summation. Accordingly, the instant factual recitation will describe only those facts relevant to defendant’s claims. For a full factual recitation of the evidence adduced at trial please refer to pages three through fourteen of respondent’s brief in the Appellate Division. On October 22, 2010, under indictment number 1762 of 2008, the Bronx County Grand Jury charged defendant with Murder in the Second Degree (Penal Law § 125.25[1]), Manslaughter in the First Degree (Penal Law § 125.20[1]), and Criminal Possession of a Weapon in the Second Degree (two counts) (Penal Law §§ 265.03[1][b], [2]).2 At the conclusion of the presentation of evidence in defendant’s trial, 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, review of various evidence, and the definition of criminal possession of a gun. After consulting with the attorneys, the court fulfilled the jury’s requests (D. 33-34).3 At 2:47 p.m., the jury requested a read back of the definition of Murder in the Second Degree, a read back of the definition of Manslaughter in the Second Degree, and to see all of the photographs. After consulting with the attorneys, the court fulfilled the jury’s request. Deliberations resumed and at 4:15 p.m. the court dismissed the jury for the weekend (D. 46-53; A. 162-169). 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. The jurors also requested a hard copy of the definitions of the charges. After consulting with the attorneys and reviewing CPL § 310.30 on the record, the court complied with the jury’s requests. At 1:45 p.m., the jury resumed deliberations and, at 3:30 p.m., sent the court a note stating “We the jury, hung jury.” The court dismissed the jury at 4:00 2 The counts submitted to the jury were Murder in the Second Degree, Manslaughter in the First Degree, Manslaughter in the Second Degree and Criminal Possession of a Weapon in the Second Degree. 3 Numerals preceded by “D.” refer to the minutes of the court’s charge and jury deliberations and those preceded by “A.” refer to defendant’s appendix. 2 p.m. and informed the jurors that he would respond to their note the next morning (D. 61, 67, 70, 85, 87-89; A. 177, 183, 187, 201, 203-205). The next morning, at 10:30 a.m., the attorneys conferred regarding the note from the previous afternoon. Both the prosecutor and defense counsel suggested that the court simply instruct the jurors to continue deliberating and not give an Allen charge. The court, however, gave a full Allen charge. The court repeated its final instruction concerning the jury’s “duty to deliberate together in order to arrive at your final verdict,” reiterating that the verdict on each count must be unanimous and that to reach a verdict the jurors must deliberate, discuss the evidence, consult with each other, listen to each other, and carefully consider the evidence. Lastly, the court instructed the jurors that they should deliberate “with a view toward reaching an agreement if that can be done without surrendering individual judgment.” The court cautioned that “[e]ach of you must decide the case for yourself, but only after a fair and impartial consideration of the evidence with the other jurors. You should not surrender an honest view of the evidence simply because you want the trial to end or you are outvoted. At the same time, you should not hesitate to re-examine your views and change your mind if you become convinced that your position was not correct” (D. 98-103; A. 214-219). At 12:17 p.m., the jury announced that it had reached a verdict. The foreperson informed the court that the jury found defendant not guilty of second-degree murder but guilty of first- degree manslaughter and second-degree criminal possession of a weapon. When the jury was polled, however, jurors number 9 and 10 answered “No” to the question, “Is that your verdict, yes or no?” (D. 107-112; A. 223-228). Outside of 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 3 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 “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. 114; A. 230) Thereafter, defense counsel requested an additional charge because he was concerned that the jurors would be under the impression that the only way the trial would end is if the two dissenting jurors “follow the will of the other ten.” The court declined the request and stated that its charge earlier that morning reiterated that the jurors were not required to reach a verdict and that there is no reason to believe the jurors did not understand the charge. The court dismissed the jurors at 4:15 p.m. (D. 115-117, 123-124; A. 231-233, 239-240). The next morning, at 10:15 a.m., the jury resumed deliberations. At 11:04 a.m., the jury asked to rehear the cross-examination of the medical examiner, the prosecutor’s redirect of the medical examiner, and the defense summation. The court conferred with the attorneys regarding the note. The prosecutor stated that the summation should not be read back because it is not evidence. The court stated that that was “the court’s feeling” as well. The court asked if defense counsel had any “objection or suggestions,” and counsel responded, “I do know it’s not evidence. So I would be happy to do what you like.” The court informed the jury that it would not read back the defense summation, and then, from 12:00 p.m. until 1:25 p.m. fulfilled the remainder of the jury’s request (D. 130-132, 144; A. 246-248, 260). 4 At 1:36 P.M. the jury requested to rehear the prosecutor’s direct 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 as before. When the jurors were polled, all twelve jurors concurred in the verdict (D. 146-152; A. 262-266). Legal Analysis I. Defendant’s Claim that The Court’s Charge was Coercive is Unpreserved, Meritless, and Unreviewable on the Instant Record. Defendant first 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 and without merit. It should also be rejected because the instant record is factually insufficient to evaluate defendant’s claim. Prior to offering the challenged instruction, the trial court specifically stated that it “thought it provident to inform both counsel in the presence of the defendant what I intend to do based on the polling of the jury before I do it” (A. 228). After informing the attorneys of its proposed instruction, the court inquired whether defense counsel had any suggestions. Rather than request an alternative charge or object to the charge as proposed, defense counsel made a motion for a mistrial. The court rejected the motion and issued the charge. Only then, after the charge had already been given and the jurors were sent to continue deliberating, did defense counsel request “another instruction” on the ground that “I think they’re going back into the jury room with the concept that this thing doesn’t end unless there is a verdict.” Notably, however, defense counsel did not specify the instruction he wanted the court to give. Indeed, defendant himself notes that counsel “implicitly but plainly sought [an instruction] that would remind the minority jurors of their right to stick to their beliefs and shore up their courage to do so” 5 (defendant’s letter, p. 18) (emphasis added). Additionally, 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 406. Accordingly, counsel’s belated request for an additional instruction, which the Appellate Division found to be non-particularized and defense counsel concedes to be an implicit request for the instruction he now contends should have been offered, was insufficient to preserve defendant’s instant claim for this Court’s review. In any event, defendant’s claim should also be denied because it is without merit. It is well established that a court may encourage a deadlocked jury to continue deliberating in order to try and reach a verdict (People v. Aponte, 2 N.Y.3d 304 [2004]), and that the nature of such encouragement “must be tailored to the circumstances at hand” (People v. Aleman, 12 N.Y.3d 806, 807 [2009]). 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. Moreover, since 1997, the First Department has found on four separate occasions that a defendant’s 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 – and over that nearly twenty-year span this Court has never upset the reasoning underlying this common-sense principle. People v. Bonilla, 225 A.D.2d 330 (1st Dept.), lv. denied 88 N.Y.2d 933 (1996); 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. Gonzalez, 259 A.D.2d 631 (1st Dept.), lv. denied 93 N.Y.2d 970 (1999). 6 Here, after two days of deliberations, which included numerous requests for evidence and the read-back of testimony, the jury indicated that it was deadlocked. In response, the trial court offered a comprehensive Allen charge, in which it instructed the jurors not to surrender individual judgment or an honest view of the evidence. Defendant conceded below, and again concedes in his instant letter, that this charge “hewed to the principles of balance” (defendant’s appellate brief, p. 26; defendant’s SSM letter, p. 18). Less than two hours later, the jury announced a verdict of not guilty of second-degree murder, guilty of first-degree manslaughter, and guilty of second-degree weapon possession. Individual polling of the jurors revealed that two jurors did not share in that verdict. In response, the judge offered an abridged charge and instructed the jurors to “go back to the jury room, resume deliberations in an attempt to reach a unanimous verdict, that is where all 12 jurors agree as to any counts submitted to you” (emphasis added). When defense counsel vaguely and belatedly requested an expanded charge, the court stated that it did not believe it necessary to reiterate the entire charge it had given earlier that morning. Thereafter, the jury continued to deliberate throughout the remainder of the day and the following morning, during which time the jury submitted two notes requesting the read-back of various testimony and the defense summation. At 3:18 p.m., the jury rendered a unanimous verdict. 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, 7 given the comprehensive nature of the first charge, the use of the term “attempt” in the second charge offered only two hours 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. Moreover, 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” (People v. Faber, 199 N.Y. 256, 258 [1910]), where a judge “instructed the jurors that they would be held incommunicado until they reached a verdict” (People v. Carter, 40 N.Y.2d 933 [1976]), 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). The instant case bears no resemblance to these cases. Furthermore, defendant’s reliance on Smalls v. Batista, 191 F.3d 272 (2d Cir. 199), 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 should be rejected given the Second Circuit’s subsequent jurisprudence regarding Allen charges generally, and the Smalls requirement in particular. Subsequent to Smalls, in U.S. v. McDonald, 759 F.3d 220 (2d Cir. 2014), the Second Circuit held 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.” By contrast, where, as here, the court simply offers a “supplemental charge” and instructs the jurors to “continue to deliberate to see whether you can reach a unanimous verdict, 8 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 223-224, citing Spears v. Grenier, 459 F.3d 200 (2d Cir. 2006) (emphasis in original). Moreover, and contrary to defendant’s insinuation (defendant’s letter, p. 18), 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. 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). Furthermore, 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, fn 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 trial court was not required to explicitly instruct the jurors not to relinquish individual judgment or conscientious objections and its instruction was not coercive. 9 Moreover, even assuming arguendo that, viewed in a complete vacuum, the court’s charge was coercive, it is impossible to determine from the instant record whether the court’s charge had any impact on the minority jurors or on defendant’s verdict. The basic premise of defendant’s argument is that when the two jurors dissented from the stated verdict, it meant that these jurors were in favor of acquittal with respect to first-degree manslaughter and, thus, the court’s charge coerced them to conform their views to those of the other ten jurors who were in favor of conviction on that count. It is entirely possible, however, that these two jurors dissented from the initial verdict because 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 (T.181-184, 190, 229-239). Indeed, it is plausible that, despite the best efforts of the minority jurors, the majority refused to convict defendant of second-degree murder and that 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. . .” (A. 7) (emphasis added). Thus, it is impossible to determine from this record the position of the minority jurors with respect to the various counts of which defendant was charged and, concomitantly, impossible to conclude that the court’s charge coerced the minority jurors into convicting defendant of first-degree manslaughter and second-degree weapon possession. Therefore, defendant has failed to provide a sufficient record for this Court to evaluate his claim. Cf. People v. McLean, 15 N.Y.3d 117 (117) (unpreserved constitutional error only reviewable on direct appeal “when the error is established on the face of the record”); People v. Bosa, 60 A.D.3d 571 (1st Dept. 2009) (the defendant failed to provide a factual record sufficient to permit appellate review of his claim that 10 the judge left the courtroom). 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. Notably, by contrast to the instant case, 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, as is the effect the court’s charge may have had on those jurors. For instance, in Lowenstein 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. 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 penalty. Similarly, in People v. Aponte, 2 N.Y.3d 304 (2004), 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. 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, it was possible to determine that the charge pressured those jurors to change their votes from not guilty to guilty. Id. at 308. Similarly, in People v. Aleman, 12 N.Y.3d 806 (2009), a note from the jury indicated that it was “hopelessly deadlocked” and that some of the jurors were inclined to acquit because defendant had spent time in jail. Thus, the record established that some of the jurors favored acquittal, and therefore, it could be determined that the court’s “lengthy, rambling instruction” pressured those 11 jurors who initially favored acquittal. Id. Here, by contrast, it is impossible to determine whether the minority jurors favored acquittal on the count of first-degree manslaughter, or were holding out for a conviction on the top count. Therefore, as stated, it is impossible to determine on this record what, if any coercive impact the court’s charge may have had on the minority jurors. In sum, defendant’s claim that the court’s modified Allen charge was coercive should be rejected because it is unpreserved. This claim should also be rejected because it is wholly without merit and, alternatively, unreviewable on the instant record. II. Defendant’s Ineffective Assistance of Counsel Claim is Not Reviewable on Direct Appeal and, to the Extent the Existing Record Permits Review, Without Merit. Defendant next argues that counsel was ineffective for failing to object to the court’s refusal to read back defense counsel’s summation to the jury.4 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 brief, p. 30, fn. 5). His principal argument was that he was deprived of due process and his right to counsel (as distinguished from his claim that he received ineffective assistance of counsel), by the 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 4 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 SSM letter, p. 24). 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. 12 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” (defendant’s leave letter to Justice Manzanet-Daniels, p. 2). 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. 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. 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, 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. For instance, defense counsel’s belief that the summation was not evidence and 13 that he would be “happy” to do what the court “liked” may have simply been a reflection of counsel’s belief that read-back of the summation may not have been advantageous to defendant. Indeed, while the request for the read-back may have come from the minority of jurors, 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. This possibility was alluded to by Justice Manzanet-Daniels, who stated in her dissenting opinion that the “request may have issued from the minority jurors. . . ” (A. 6-7) (emphasis added). Further, 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. 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. If this was counsel’s reasoning, it would constitute a legitimate trial strategy. Thus, counsel cannot be deemed ineffective without further, off-the-record inquiry into counsel’s strategy. Moreover, on the existing record, counsel did not provide ineffective 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). Under Federal law, defendant bears the burden of proving 14 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, contrary to defendant’s argument, the court’s determination that it would not read back the summation because the summation was not of an evidentiary nature did not constitute an abdication of its duty to exercise discretion (defendant’s letter, p. 21). Rather, it reflected an implicit finding by the court that the summation would not be helpful to the jury. Indeed, the jury had previously made numerous requests for evidence that the court comprehensively reviewed and fulfilled, demonstrating that the court was cognizant of its obligations under CPL § 330.10. Moreover, upon receiving the jury’s request, the court solicited the parties’ views, strongly suggesting that the court was engaged in the exercise of its discretion. 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, __N.Y.2d__, 2015 N.Y. Slip Op. 05596 (June 30, 3015) (“we have, on occasion rejected ineffective assistance challenges when in its clear to the Court that the objection or contention that was omitted would not have been a ‘wining 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). 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.” People v. Keschner, __N.Y.2d__, 2015 N.Y. Slip Op. 05596 (June 30, 3015). Indeed, one error, “in the context of an otherwise creditable 15 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, 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), this Court found that counsel was ineffective for failing to raise a meritorious statute of limitations defense, and in People v. Fisher, 18 N.Y.3d 965 (2012), this Court found that 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, most recently, in People v. Keschner, __N.Y.2d__, 2015 N.Y. Slip Op. 05596 (June 30, 3015), 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. Here, 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 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. Further, as stated, defense counsel’s decision to 16 acquiesce in the court’s decision not to read back the summation may have been the result of a legitimate trial strategy. Lastly, 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.” People v. Keschner, __N.Y.2d__ (June 30, 3015), 2015 N.Y. Slip Op. 05596. Indeed, even defendant himself argued in his leave-letter to Justice Manzanet-Daniels that “confusion reigns in the trial courts and Appellate Divisions on the matter” of the “summation read-back issue” (defendant’s leave-letter, p. 2). 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. Accordingly, the decision of the Appellate Division should be affirmed. * * * * The People reserve any argument made in our Appellate Division brief not appearing in this submission. See 22 NYCRR 500.11(e). Respectfully submitted, ________________________ ORRIE A. LEVY Assistant District Attorney Appeals Bureau 17