The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016To be argued by Sus¡N H. S,lr,ovtoN (15 Minutes) APL-2015-00123 @ourt otgfBrrld åt¡tc of Seb Porä THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PATRICKMORGAN, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT.APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation L20 Walt Street New York, NY 10005 Phone: (212) 577-2523, Ext. 518 Fax: (212) 577-2535 ssalomon@cfal.org Sus¡,N H. S¡,lowroN Of Counsel March 8,2016 TABLE OF CONTENTS TABLE OF AUTHOzuTIES PRELIMINARY STATEMENT REPLY ARGI-II\4ENT POINT I APPELLANT'S ARGUMENT - THAT THE COURT, ON ORDERING THE PUBLICLY DIVIDED JURY TO RESUME DELIBE,RATIONS, REMINDED IT THAT THE, VERDICT HAD TO BE LTNANIMOUS BUT \MRONGLY REFUSED TO INCLUDE ANY LANGUAGE CONVEYING THAT JURORS WERE NOT TO SURRENDER CONSCIENTIOUS BELIEFS SOLELY TO ACHIEVE UNANIMITY - IS REVIEWABLE AND FULLY SUPPORTED IN LAW. A. Respondent's procedural complaints lack factual and legal basis With its exclusive focus on the requisites of a unanimous verdict, the charge to the openly divided jury risked coercion. 6 POINT II AS TO COUNSEL'S INEFFECTIVENESS REGARDING THE COURT' S DEFENSE-SUMMATION READBACK-DENIAL, RESPONDENT'S CLAIMS OF NONREVIEWABILITY AND LACK OF MERIT WARRANT REJECTION. I4 The law entitles appellant to raise an ineffective-assistance-oÊ counsel argument - as his principal argument - for the first time in this Court, without incurring judicial suspicion 14 Counsel' s on-the-record statements accompanying his "happy" acquiescence to the trial court's readback ruling renders his ineffectiveness reviewable on this appeal. Counsel rendered ineffective assistance. 1 2 111 2 2 I7 B A B C 18 1. The trial court committed clear legal elror in denying the jury" request. 2. Counsel's dereliction tainted his representation and the trial's fairness. .18 23 CONCLUSION 25 11 TABLE OF AUTHORITIES Federal Cases Smalls v. Batista, I9l F.3d 272 (2d Cir. 1999) Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006) United States v. Baldeo , 615 Fed. Appx. 26 (2d Cir. 2015) United States v. Hynes,424F2d754 (2d Cir 1970) United States v. McDonald , 7 59 F.3d 220 (2d Cir. 2014) State Cases People v. Hogan, : N.Y.3d:, 2016 \ML 633920 (2016) People v. Aponte,2 N.Y.3d 304 (2004) People v. Carter, 40 N.Y.2d933 (1976) People v. De Bour, 40 N.Y.2d2l0 (1976) People v. Delucia, 20 N.Y.2d275 (1967) People v. Erts,73 N.Y.zd872 (1988) . People v. Garcia,25 N.Y.3d77 (2015) People v. Harden,l34 A.D.3d 1160 (3d Dept. 2015) People v. Hom,196 A.D.2d 886 (2d Dept. 1993) People v. Keschner, 25 N.Y.3d704 (2015) People v. Kisoon, 8 N.Y.3d 129 (2007) People v. Mercado, 91 N.Y.2d960 (1998) People v. Muhammad, 17 N.Y.3d 532 (201 1) People v. Negron,26 N.Y.3d262 (2015) People v. Nesbitt, 20 N.Y.3d 1080 (2013) People v. O'Rama, 78 N.Y.2d270 (1991) People v. Pagan, 45 N.Y.2d725 (1978) People v. Page, 47 N.Y.zd968 (1979) . 10, ll, 12 9, 12 10 t2 10 18 l1 2,3 16 I 5 5 J 5 6,7 22,23 8,9,24 5,12 2t 17, 18 8,9, 19 I 8 iii People v. Pena, 188 A.D.2d 349 (1st Dept. 1992) People v. Rivera, 15 N.Y.3d207 (2010) People v. Ross ,205 A.D.zd 646 (2d Dept. 1994) People v. Simms, 13 N.Y.3d867 (2009) Peoplev. Sullivan, 1604.D.2d 161 (1stDept. 1990) People v. Thompson,2l N.Y.3d 555 (2013) - People v. Tucker, 55 N.Y.2d 1 (1981) People v. Velasco, 77 N.Y.2d 469 (1991) 6,7 t9 24 19,20 5 15,2l 7 5 IV COURT OF APPEALS STATE OF NE\M YORK ------------x THE, PEOPLE OF THE STATE OF NETV YORK, : Respondent, -against- PATRICK MORGAN, Defendant-Appellant. PRELIMINARY STATEMENT Appellant submits this brief in reply to respondent's [hereinafter RB], received by appellant on February 25,2016. Appellant replies to respondent's arguments that the charge to the jurors following the nonunanimous verdict is not reviewable and, in any event, was not coercive (Point I), and that defense counsel did not provide ineffective assistance by failing to protest the court's rejection of the jury's request for the readback of the defense summation as "not evidence" (Point II). I REPLY ARGUMENT POINT I APPELLANT'S ARGUMENT THAT THE COURT, ON ORDERING THE PUBLICLY DIVIDED JURY TO RESUME DELIBERATIONS, REMINDED IT THAT THE VERDICT HAD TO BE I.]NANIMOUS BUT WRONGLY RE,FUSED TO INCLUDE ANY LANGUAGE CONVEYING THAT JURORS WERE NOT TO SURRENDER CONSCIENTIOUS BELIEFS SOLELY TO ACHIE,VE, UNANIMITY - IS REVIE\MABLE, AND FULLY SUPPORTED IN LAW. Respondent contends that procedural deficiencies prevent this Court from reaching the merits of appellant's argument regarding the court's charge. In the alternative, respondent argues that the charge contained nothing coercive. Respondent is wrong on both counts. A. Respondent's procedural complaints lack factual and legal basis. According to respondent, defense counsel did not "actually object" to the given charge and his subsequent request for an additional instruction suffered from tardiness and lack of specificity. All this, in respondent's view, added up to lack of preservation. RB at 22-25,3 0-3 1 . The trial prosecutor, however, made none of these complaints; she argued only that no additional instruction was required. A232. Accordingly, respondent may not voice them for the first time in this Court. See, e.g., People v. Erts, 73 N.Y.2d872,874 (1988) (Because the People did not oppose the defense request for a missing-witness charge on any of 2 the grounds they advanced on appeal, including lack oftimeliness, their arguments were not preserved for this Court's review.). The record further demonstrates that "the trial court did not base its ruling onanyof [the] grounds"respondentadvances, id., andthatitunderstoodcounsel's request for an additional instruction perfectly well. Counsel's expressed concern for the two identified jurors in the minority, who might have believed that "the only way that things ever[] come[] to an end is if they follow to the will of the other ten," Az3l-32,communicated counsel's desire for a fuither instruction that would remind the minority jurors of their right to stick to their beliefs and counsel's objection to the charge as it stood. The court rejected the request because it did not think one "necessary," given the deadlock instruction that it had issued earlier that morning. A 232-33 Respondent also takes issue with the majority's decision below, insofar as it found preserved appellant's attacks on the charge on federal due-process grounds. See A 2; RB at24-25 &n.9. This complaint also falters, as respondent cannot successfully dodge this Court's holding in People v. Garçia, 25 N.Y.3d 77 (2015), that defense counsel's objection, "[w]e don't have that witness here," sufficed to preserve a federal constitutional confrontation-claim. Id. at 82,86. Respondent argues that Garcia does not apply because of counsel's alleged a J preservation deficiencies here, particularly his purported tardiness in seeking further instruction. RB at25 n.9. Stripped of this baseless claim, respondent has nothing to say on Garcia's salient applicability here - that counsel's claim of coercion attending the court's unadorned charge obviously called to mind, and thereby preserved, a federal due-process challenge Last, respondent asserts that appellant's claim is "not justiciable" for lack of a sufficient record. As respondent would have it, appellant "expects this Court to join him in blindly making a series of assumptions" that the record neither reveals nor supports, including what count[s] the jurors were split on and whether they favored guilty or not guilty. Because appellant did not cause the court to delve into these matters during the polling, respondent concludes, he cannot make any arguments about the coerciveness vel non ofthe court's charge. RB at 39'46. Neither the facts nor the law support any of this. First, appellant has nowhere asserted or speculated about the breakdown or particulars of the vote that revealed the two holdouts. That respondent cites nothing in appellant's brief to support its accusation is telling. Second, the actual claim at issue on this appeal - whether the post-polling charge's lack of balancing language vis-à-vis the identifiedholdouts unlawfullyrisked coercion- does not require the vote breakdown or particulars. Respondent cites no authority 4 that says it does. Instead, respondent cites cases thatwould "assign[] enorto the manner and conduct of the jury polling" itself. People v. Mercado, 91 N.Y.2d 960,963 (1998); People v. Harden,I34 A.D.3d 1160, 1165 (3d Dept. 2015). RB at 41. These cases might bear relevance here if, for example, appellant sought to show that the jury had then acquitted appellant of murder. See C.P.L. $ 310.50(2) (where the jury renders a verdict that appears defective, "if it is clear that the jury intended to find a defendant not guilty upon any particular count, the court must order that the verdict be recorded as an acquittal of such defendant upon such count"). But counsel did not ask that appellant then be acquitted of murder; he asked only that the court's charge include language protective of the minority jurors - however they had then voted. To repeat, respondent cites no case thatrequires counsel to have delved into the particulars of the j.rry's deliberations to raise or prevail on the issue of a coercive charge on appeal. The lack of such authority does not surprise: Except for claims involving outside influences or improper conduct, the law precludes such intrusion into a jury's deliberations. See, e.g., People v. Muhammad, 17 N.Y.3d 532,544 (2011); People v. Rivera, 15 N.Y.3 d207,212 (2010); People v. Tucker, 55 N.Y.2d 1,7 (1981); People v. Delucia,20N.Y.2 d275,279-80 (1967); 5 B C.p.L. $ 330.30(2). In fact, it specifically does not tolerate such inquiry of any juror who, on polling, clearly and simply voices disagreement with the verdict. See People v. Horn, 196 A.D.zd 886, 886 (2d Dept. 1993) (finding "without merit" defendant's contention that the court erred in failing to conduct such an inquiry). That described the two jurors here. Cf. People v. Simms, 13 N.Y.3d 867, 87I (2009) (recognizing exception to this anti-impeachment rule and requiring further inquiry where, on polling, the juror gives ambiguous answers as to his or her vote and suggests having been pressured by impermissible actual or threatened physical harm). charge to the openly divided jury risked coercion. As to the merits, respondent again would put words and arguments in appellant's brief that do not appear there. Appellant does not argue that a defective verdict calls for"afull Allen charge," RB at 25 &'27,notatpage26 of his opening brief [AB], which respondent invokes, and not anywhere else. What appellant has argued- consistent with defense counsel's position-was for "an instruction that would remind the minority jurors of their right to stick to their beliefs and [the propriety of] his objection to the charge as it stood." AB at30-3I. Aside from mischaracterizing appellant's argument, respondent does not come to grips with the record. Appellant does not disagree with respondent's 6 legal observation that, as provided by C.P.L. $ 310.80, "[w]hen 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 deliberations - nothing more is required." RB at25-26. The cases respondent cites at RB 26 - People v. Penao 188 4.D.2d349,349-50 (lst Dept. 1992); Horn, 196 A.D.zd at 886 - support that proposition. So does Simms, 13 N.Y.3 d at 87I. But, though respondent wishes it otherwise, the trial court here did not deliver such a circumscribed and anodyne instruction. The charge did not merely "track[]" C.P.L. $ 310.80 or "closely followf]" it. RB at28. Reproduced in fult at AB 22 (and A 230), the charge, referencing the court's "final instructio11s" - not the instructions issued in response to the jury's hung-jury announcement - noted three times the requirement of a unanimous verdict, which it was asking the jurors to attempt to achieve. Considered alone, the charge went far beyond $ 310.80 in an unbalanced way, which, as counsel recognized, risked coercion ofthe two minorityjurors. Thatthe court issued the charge against the backdrop of the prior hung-jury declaration enhanced the risk. Respondent' s efforts to otherwise save the instruction also fail. Respondent lauds the charge as "tailoring . . . to the circumstances at hand." RB at 30 (internal 7 quotation marks and citation omitted). These circumstances, respondent argues, do not require any solicitude for or recognition ofthe trial court's awareness ofthe jrrry's split. Respondent calls any exercise ofparticular care "unsupported" by this Court. RB at 35. As a logical matter,however, this Court's decisions upholding instructions as noncoercive where they did not "impermissibly singlef] out [any jurors] for noncompliance with the majority," People v. Pagan, 45 N.Y.2d725, 727 (1978);People v. Page, 47 N.Y.2d 968, 970 (1979)- cases respondent cites, RB at 35 - solidly form the foundation for such solicitude. So does People v. Carter, 40 N.Y.2d 933,933-34 (I97 6), which faulted the trial court for its coercive language directed to a juror who, on polling, revealed disagreement with the verdict - a case respondent would dismiss because it involved a "pointed threat . . . [ofl indefinite[]" deliberations." RB at 28 n.11 (internal quotation marks omitted). As for People v. Kisoon, 8 N.Y.3d 129 (2007), respondent describes it as involving simply aviolation ofPeople v. O'Rama, 78 N.Y.2 d270 (1991) -attial court's failure to share all or some of the contents of a jury note with counsel - not an Allencharge, as none was requested. RB at 35 n.12. Respondent thus refuses to confront this Court's observation that, had the trial court there revealed to counsel the nature of the jury's split, which the jury had disclosed in its note, I counsel might have requested a charge oostressing the importance of individual jurors not surrendering conscientiously held views merely for the purpose of returning a verdict." Id. at I35 . That this Court called such a potential suggestion "intelligent," id., reinforces its determination that awareness of a deliberating jury's split demands heightened judicial sensitivity Respondent would also conclude that the Second Circuit "explicitly condones, and even encourages, the very type of charge issued by the court in the instant case." RB at 39. In connection with that assertion, respondent summarizes the court's action in this case as "instructfing] the jurors to attempt to reach a unanimous verdict." The summary is incomplete: It fails to acknowledge the court's repeated statements that a verdict requires that"all 12 jurors must agree," and its reference only to the "final instructie¡s" - not the Allen charge - in reminding the jury of the unanimity requirement. The actual charge would not pass muster under the Second Circuit precedent discussed in appellant's brief. NotunderUnited States v. Baldeo,6l5 Fed. App". 26 (2dCir.2015), which endorsed instructions to a self-declared "struggling" 11-1 jury that, besides "unchallenged instructions on unanimity," included the admonishment that the jurors were "'never [to] change your mind just because other jurors see things differently or just to get this case over with."'Iú. at27. Not under United States 9 v. McDonald ,759 F.3d 220 (zdCir.20t4), where the approved instructions to the nonunanimous juty - including the 'outed' minority juror - explicitly incorporated the court's prior instructions that declared each juror's right "to hold fast to . . . conscientiously held beliefs." ld. at 224. And not under Smalls v. Batista, 191 F.3d 272 (2d Clr. 1999), which "highlighted" the "necessity" for "cautionary fdo-not-abandon conscientiously-held beliefs] language" in the circumstances of identified minority jurors. Id. at 280 Nor may respondent find comfort in Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006). þ RB at 36, 38. That case involved a "hung jury" declaration after only a few hours of deliberation and without any indication of the breakdown in the jury's vote. And the court's charge merely advised the jurors that their note had been "'premature"' and asked them "'to attempt to reach a verdict if that be possible."' Id. at 202. As the Second Circuit observed in finding the charge unobjectionable, the "context and circumstances" did not resemble those in Smalls, which had compelled a finding of unconstitutional coercion. Id. at206 The conditions in Spears also bore no resemblance to those in appellant's case. Taking a different tack, respondent, like the Appellate Division majority (re e 24), assumes that,if abalancing charge, or reference to one, mattered, the court's earlier Allen charge supplied it - and the jury presumably applied it. RB 10 at 38. The principle that jurors are presumed to follow instructions lacks force in this case. The jurors did not follow prior instructions when they rendered the nonunanimous verdict. And the and delicate - circumstance of a nonunanimous verdict, with its revelation of the two minority jurors, required at least a nod to the principles of how jurors are to deliberate in such circumstances. The court's exclusive discussion of unanimity did not provide it. To the contrary. As appellant noted in his opening brief (See Rg at 3l), not only did this instruction not resurrect any cautionary "stick-to-your-guns" language, but its absence in this new circumstance may well have signaled that the minority jurors "had no other choice but to convince [the others] or surrender." Smalls, 191 F.3d at280. It did not warrant the assumption that the minority jurors would summon language from an earlier charge delivered under different circumstances. Appellant acknowledges that federal precedent does not bind this Court. See RB at36.In fact, appellantmaintains that, withoutmore, this Court's caselaw supports his arguments and the relief he seeks. He offers the federal authority as additional support. In that vein, appellant acknowledges that this Court has noted that the swiftness of a verdict after a charge challenged for coerciveness, while not "dispositive," will support a "coercive implication." People v. Aponte, 2 N.Y.3d 304,309 (2004). At the same time, he recognizes authority observing that lengtþ 11 deliberations following a challenged charge may support a noncoerciveness determination. See RB at 32-33. And here, the majority opinion noted, the jury rendered the final verdict a day after the challenged charge was given. See A 3. To this, appellant would reply as he did in his opening brief, invoking Second Circuit authority that particularly analyzesthe issue: According to this authority, the charge itself occupies the central inquiry - whether it is correct or not, not the speed with which it produces results. See United States v. Hynes,424F2d754, 758 (2d Cir 1970). While the length of deliberations may reinforce a noncoerciveness finding as to an "evenhanded" charge, it cannot save a coercive one. Smalls,lgl F.3d at281; e.g., Baldeo, 615 Fed. App*. at27 (upon finding that the charge itself "did not encourage jurors to abandon their conscientiously held doubts without any principled reason," noting as well the "lengtþ post- instruction" deliberations). That the content of the charge should control - not the imagined fortitude or personalities of the jurors deliberating under it - makes sense. It also accords with and supports this Court's observation that "sheer conjecture about what actually occurred in the minds ofthe jurors during deliberations is the reason why our precedent precludes judges from 'intrud[ing] into the jury's deliberative process' . . . ." Muhammad, 17 N.Y.3d at 544 (internal citation omitted). The l' t2 content here, imbalanced in the highly sensitive circumstances, risked coercion. That should end the inquiry. 13 POINT II AS TO COUNSEL'S INEFFECTIVENESS REGARDING THE COURT'S DEFENSE-SUMMATION READBACK-DENIAL, RESPONDENT'S CLAIMS OF NONREVIEWABILITY AND LACK OF'MERIT WARRANT REJECTION. In arguments that, among other things, ascribe motives and reasoning to defense counsel and the trial court at odds with the record, resþondent seeks to undermine appellant's ineffective-assistance argument regarding counsel's response to the jnry's defense-summation readback request. Respondent's arguments collapse on inspection. A. The law entitles appellant to raise an ineffective-assistance-of-counsel without incurring judicial suspicion. By way of a prelude, respondent criticizes appellant for even making the ineffectiveiress argument in this Court, going so far as to suggest that appellate counsel does not believe in it, having "relegated" it to a footnote in appellant's Appellate Division brief. RB at 46-48. Although respondent concludes this introductory section with the acknowledgment that "no rule of appellate practice prohibits such transfiguration," RB at 48,r respondent's comments require a response. I Respondent understates appellant's entitlement to raise the ineffective-assistance argument. The law positively allows the appellant to raise questions of law in this Court ooregardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court." C.P.L. $ 470.35(1). t4 Since the Appellate Division possesses review powers broader than those of this Court, an appellate counsel's implicit appeal to the Appellate Division's interest-oÊjustice jurisdiction forunpreserved error shouldhardlymerit suspicion. In seeking such relief, appellate counsel necessarily must demonstrate - more, emphasiz not only the substantive merit of the unpreserved error but its prejudice to the defendant. And counsel should show as well that no legitimate trial tactic or strategy could explain the lack of preservation - itself also a necessary component of ineffective-assistance-oÊcounsel analysis. Last, such counsel and frequently should - make layered, alternative, arguments Here, appellate counsel's Appellate Division briefing on the summation- readback issue evidenced all these considerations. The brief emphasized that, under People v. Velasco, 77 N.Y.2d 469 (1991), and C.P.L. $ 310.30, the trial court's determination not to let the jury rehear the defense summation solely because it was "not evidence" was flat-out wrong. The brief also argued, in the alternative,that, assuming arguendo that the trial court exercised discretion in refusing the readback request, its refusal constituted an abuse. The brief argued as well that appellant suffered prejudice on account of the readback refusal - especially given the posture of the jury's deliberations. And, as to defense counsel's purported waiver of the issue - via his observation that summations 15 were not evidence and his being "happy to do" whatever the court "like[d]" - appellate counsel contended that counsel thereby demonstrated ineffective assistance, not a considered or legitimate tactical move. This last argument not only raised ineffectiveness, but served to bolster appellant's interest-of-justice claim. Put another way, in this Court, only ineffectiveness can be raised. But appellant's Appellate Division briefing contained all its ingredients. Cf. People v. De Bour, 40 N.Y.zd 210,215 (1976) ("The mere emphasis of one prong of attackover another, or a shift in theory on appeal, will not constitute a failure to preserve.").2 'It bears further noting that, while the dissenter below found reversible error in the charge, she additionally found the court's readback refusal prejudicial. See A 6-7. Respondent's effort to read the dissenter's mind - suggesting that she "did not view [appellant's] ineffective assistance of counsel claim as particularly meritorioss" - fþsgstrikes another wrong note. t6 B acquiescence to the trial court's readback ruling renders his ineffectiveness reviewable on this appeal. Turning to the ineffectiveness argument itself, respondent first proposes that this Court may not review it for lack of a C.P.L. $ 440.10 motion regarding counsel's lack of protest. Notwithstanding counsel's statements -betraying his lack of knowledge of the law and ceding the matter to the court to do whatever it liked-respondent imagines that counsel was really angling forthe courtto reject the request out of some calculation regarding the jury's deliberative process. See RB at 48-51. Respondent's tortured speculation falls of its own lack of internal logic. If counsel had wanted the court to deny the readback request, he need only have said so. He would not have rolled the dice, leaving the court to do whatever it "like[d]." But, as this Court's precedent teaches, even if it were possible to conjure a legitimate tactic behind counsel's behavior, his explicit on-the-record and legally misguided statements would render it irrelevant. Specifically, in People v. Nesbitt, 20 N.Y.3d 1080 (2013), involving counsel's failure to request a lesser- included offense, this Court observed that, " [i]n many cases, there may be strategic reasons for a lawyer's choice not to request [one] . . . ." Id. at 1081. But Nesbitt's lawyer had stated on the record that he had not a requested one because he had T7 thought his client had no defense to the charge at issue. Finding counsel's belief "mistaken" - ¿s an "open issue" existed on the meaning of the elements of the crime - the Court found counsel ineffective in overlooking it. Id. at 1082. Cf. People v. Hogan, _ N.Y.3d _, 2016 WL 633920 (2016) (citing Nesbitt in finding that counsel's on-the-record statement revealed a legitimate strategy regarding why he decided that his client would not testiff in the grand jury, which defeated an ineffectiveness fînding). Here, uttered on the heels of the court's and prosecutor's incorrect statements of the law - that the jury's request should be denied because summations were not evide counsel's statement echoed them and "so" added his "happy" acquiescence to whatever the court "like[d]." A 248. Like Nesbitt's attorney, appellant's was legally "mistaken" - 6n lþs record C. Counsel rendered ineffective assistance. 1 The trial court committed clear legal error in denying the iury's request. Finally addressing the merits of appellant's ineffectiveness claim, respondent counters that the trial court committed no error. First, respondent claims, the court "implicitly" exercised its discretion in denying the request. Second, respondent argues, even if the court denied the request simply because summations are not evidence, that suffrced under Velasco. The first claim finds 18 no record support; Velasco refutes the second. According to respondent, the court's rejection ofthe jury's readback request reflected an "implicit" exercise of discretion, which satisfied Velasco. RB at 52. As evidence of this "implicit" exercise, respondent points to the court's granting of other of the jury's requests. RB at 53. How this demonstrated any exercise of discretion regarding the summation request remains unexplained Respondent also offers up that the court asked for the parties' views before answering the jury's summation-readback request. RB at 53. That, however, manifested no more than the court's mandated compliance with People v. O'Rama, 78 N.Y.2d270 (1991) - which requires courts to solicit the views of counsel before responding to jury notes. See id. at 277. Next, respondent suggests that the court might have declined the request because the readback would have prejudiced the People. RB at 53-54 n.16. The court, however, never so much as hinted at this idea.3 More, the case respondent cites to support this proposition, People v. Sullivan, 160 A.D.zd 161 (lst Dept. 1990), wrongly declared, pre-Velasco, that summations do not fall within C.P.L. $ 310.30's 3 Put to the side that jury requests for information may frequently favor one side, which necessarily and appropriately circumscribes the court's response - to the other side's detriment. See, e.g., People v. Ross,205 A.D.2d 646,646 (2d Dept. 1994) (where the jury requested to rehear the definition of murder, the court did not err by only charging the elements of the crime and denying defense counsel's request to also recharge on the affirmative defense of extreme emotional disturbance). t9 category of "other matter pertinent to the jrrry's consideration of the case." Id. at 163. Last, respondent says that the court did not "provide a full explanation for its denial of the jury's request," but that its use of the word "decline" in its colloquy with the parties somehow manifested an exercise of discretion. So, along the same lines, did the court's disagreeing with the prosecutor about telling the jury the reason for denying the request. RB at 55-56. In fact, the court's use of "decline" was in ans\ryer to the prosecutor's request that the court tell the jury that summations are not evidence. See A 247-48. In any event, the court's not explaining the reason for its denial to the jury did nothing to show an exercise of discretion as informing the denial. In summary of its position, respondent repeats appellant's contention that the court's on-the-record statement reflected the absence of any considered, judicial, judgment. Using hedging language, respondent replies that "[t]his 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 assume otherwise in the absence of a pellucid record." RB at 53 n.15. Apparently, respondent would be satisfied had the court expressly declared that it was not exercising arly discretion in denying the jury's request. Respondent cites no 20 authority requiring such a statement. Still, the court's actual exchange with the prosecutor and counsel spoke with equivalent - and legally mistaken - clarity. Cf. People v. Negron, 26 N.Y.3d262,269 (2015) (finding that the "face of the record" did not support the trial court's "retrospect[ive]" declaration that it had applied the correct - balancing - test in precluding the defendant's proffer of third-party evidence of guilt). In the alternative, respondent contends that Velasco would deem, as an exercise of discretion, a court's denial of a jury's summation-readback request "even when it is based on the factthat summations are not evidence." RB at 58 Velasco does not say that. Velasco determined that, under C.P.L. $ 310.30, "the jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations . . . ." 77 N.Y.2d at 47 4. This Court then said that whether a summation should be read to the jury "under the circumstances" of the case is a "matter within the trial court's discretion." Id. Denying a request because summations are not evidence improperly reads out this Court's ruling that summations constitute a category of material cognizable under $ 310.30, apart from evidence. Such a blanket denial reflects pure and patent legal error, not an exercise of discretion. Respondent thus misplaces reliance on the majority's finding that the 2l court's readback refusal did not constitute effor which preceded its determination that counsel had not rendered ineffective assistance. Invoking People v. Keschner, 25 N.Y.3 d704 (2015),respondent continues that the decision below, plus other appellate decisions finding no effor as to a summation-readback denial, signified that the issue was not clear-cut and counsel's lack of objection, therefore, not ineffective. In a similar vein, respondent misguidedly invokes appellant's leave-application to the dissenter at the Appellate Division, in which appellant cited the confusion in the Appellate Division summation-readback decisions as a reason to grant leave. RB at 57-58. By contrast to the nuanced or debatable analysis that the charge issue presented in Keschner - where the charge contained correct and incorrect iterations of the law, which the jury might have sorted out, and where defense counsel was, accordingly, not found ineffective for having failed to object to the charge's errors, see 25 N.Y.3d at723-24 - the readback issue in this case was clear-cut. The applicable law - Velasco - was not debatable. Nor is it open to question that defense counsel, like the trial court, demonstrated ignorance of it. To be sure, several lower appellate courts have gotten it wrong - including the majority in appellant's case - or have been sloppy in their analysis or writing. But appellant does not read Keschner to endorse incorrect lower-court decisions 22 that misstate or ignore clear law emanating from this Court, let alone to use them to insulate counsel from an ineffectiveness finding 2 Counsel's dereliction tainted his representation and the trial's fairness. Respondent asserts that, even had counsel objected to the court's ruling, appellant "cites no basis for his claim that an objection 'might well have' caused the court to deliver the read back." RB at 59. Here, respondent has overlooked appellant's arguments detailing how an assessment ofrelevant factors would have supported the readback, see AB at 39. These included: the summation contained no improprieties; given the jury's requests for readbacks of discrete testimony, the summation would not have detracted the jury from its own recollection of the facts; instead, the summation culled inferences from the evidence - itself complex - arguing, among other things, that the shooting had not been intentional; and that the request came after five days of labored deliberati likely making the summation's detailed interpretation of the evidence very difficult to recall. Conversely, had the court denied the readback following a proper protest, appellant would have had the issue preserved for appellate review - its absence a cognizable form of prejudice, which respondent does not acknowledge. See, e.g., Keschner,25 N.Y.3dat 723; People v. Thompson,2l N.Y.3d 555,560 23 (2013). As for the impact the lack of the readback may have had on the jury, appellant would emphasize: this Court's observation in People v. Kisoon, 8 N.Y.3d 129,134-35 (2007),that a jury's request during deliberations "may well determine whether a verdict will be reached, and what that verdict will be" (internal quotation marks and citations omitted); that the denial of the readback occurred only a few hours before the verdict was rendered; and the dissent's observation that the denial deprived any defense-favorable jurors of analytic ammunition that might have persuaded their colleagues, A 7 observation that respondent effectively echoes, complaining elsewherea that the "reasons why reading the summation would have benefitted defendant . . . also serve to show how a read back would have prejudiced the People." RB at 54 n.I6. 4 Albeit without proper legal basis - see ante at 19-20 &, n.3. 24 CONCLUSION FOR THE REASONS STATED IN APPELLANT'S OPENING BRIEF AND THOSE HEREIN, THE JUDGMENT SHOULD BE REVERSED AND A NE\M TRIAL GRANTED. Dated: New York, New York March 8,2016 By ,+ Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 (2r2) s77-2s23 Susan H. Salomon Of Counsel 25