The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016To be argued by Sus¿,w H. S¡.loMoN (15 MrNurrs nrqunsren) [,outt of Øppo&[ø St¡te of 9eb Porh THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2015 -00123 PATRICK MORGAN, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation L20 Walt Street New York, NY 10005 Phone Qlz) 577-2523 Fax (212) 577-2535 ssalomon@cfal.org Sus¡,N H. S¡¡owroN Of Counsel October 30,2015 TABLE OF CONTENTS TABLE OF AUTHOzuTIES PRELIMINARY STATEMENT JURISDICTIONAL STATEMENT QUESTIONS PRESENTED STATT]TE INVOLVED INTRODUCTION AND SUMMARY OF ARGUMENT STATEMENT OF FACTS The trial . . The prosecution's case The court agrees to charge on circumstantial evidence and grants the defense request to charge second-degree manslaughter as a lesser included offense Summations . 2 a J 4 4 7 7 7 111 I I7 24 26 18 Deliberations and judgment The Appellate Division decision 20 ARGIJMENT.. I POINT I AFTER THE PREVIOUSLY DEADLOCKED JURY RENDERED A DEFECTIVE VERDICT THAT REVEALED ITS NUMERICAL SPLIT AND THE IDENTITIES OF THE TWO JURORS IN THE MINORITY, TFM COURT, \MHEN ORDERING THE JURY TO RESUME DELIBERATIONS AND REMINDING IT THAT ITS VERDICT HAD TO BE UNANIMOUS, WRONGFULLY REFUSED TO INCLUDE ANY LANGUAGE CONVEYING THAT JURORS WERE NOT TO SURRENDER CONSCIENTIOUS BELIEFS SOLELY TO ACHIEVE UNANIMITY - AN OMISSION THAT RENDERED THEINSTRUCTION FATALLY COERCIVE. 26 POINT II BY REFUSING TO GRANT THE DELIBERATING JURY'S REQUEST TO REHEAR THE DEFENSE SUMMATION SIMPLY BECAUSE IT WAS NOT "EVIDENCE:'THE COURT ERRONEOUSLY FAILED TO EXERCISE ITS DISCRETION; AND BY ENDORSING THE COURT'S WRONGFUL AND PREJUDICIAL RULING, DEFENSE COUNSEL RENDERED APPELLANT INEFFECTIVE ASSISTANCE. 36 A. The trial court erred in categorically rejecting the jury's request to rehear the defense summation simply because it was not "evidence." 37 B Defense counsel rendered ineffective assistance by happily accepting the court's unqualified denial of the jury's readback request CONCLUSION 47 40 ll TABLE OF AUTHORITIES FEDERAL CASES Herring v. New York,422 U.S. 853 (1975) Smalls v. Batista, I9I F.3d 272 (2d Cir. 1999) . . Strickland v. \Mashington,466 U.S. 668 (1984) People v. Alvarez, 86 N.Y.2d761 (1995) People v. Aleman, 12 N.Y.3d 806 (2009) People v. Aponte, 2 N.Y.3d 304 (2004) People v. Baker, 14 N.Y.3d266 (2010) People v. Baldi, 54 N.Y.2d 137 (1981) People v. Benevento,9l N.Y.2d708 (1998) People v. Bonilla,225 A.D.2d 330 (lst Dept. 1996) People v. Cannon , 236 A.D.2d 294 (Lst Dept. 1997) People v. Clariot, 188 A.D.zd 281 (1st Dept. 1992) People v. Clermont, 22 N.Y.3d931 (2013) People v. Cronin, 60 N.Y.2d 430 (1983) People v. Delucia, 20 N.Y.2d275 (1967) People v. Fisher, 18 N.Y.3d964 (2012) People v. Garcia, 25 N.Y.3d77 (2015) People v. Heidæn, 22 N.Y.3d259 (2013) Pçople v. Howard, 22 N.Y.3d 388 (2013) 36 29,3r,32,33,34 41,47 United States v. Baldeo, _ Federal Appx. _,2015 WL 5023999 (2dCir.2015) . . 29,34 United States v. McDonald,759 F.3d 220 (2d Cir. 2014) STATE CASES 3r,32 2,27,34 42 28 27 4t 34 38 4l 35 45 40,47 34 2,38,39 3,42 31 4r,44 People v. Keschner,25 N.Y.3d704 (2015) 44 People v. Kisoon, 8 N.Y.3 d 129 (2007) People v. McGee,20 N.Y.3d 513 (2013) People v. Morgan,I24 A.D.3d 406 (1st Dept. 2015) People v. Pagan, 45 N.Y.2d725 (1978) People v. Santiago, 22 N.Y.3d740 (2014) People v. Stultz, 2 N.Y.3 d277 (2004) People v. Sullivan, 160 A.D.2d 161 (lstDept. 1990) People v. Thompson, 21 N.Y.3d 555 (2013) People v. Turner, 5 N.Y.3 d 476 (2005) People v. Velasco, 77 N.Y.2d 469 (1991) People v. Wright, 25 N.Y.3d 7 69 (201 5) People v. Williams, 56 N.Y.2d236 (1982) STATE STATUTES c.P.L. $ 310.30 c.P.L.$330.30(2).. c.P.L. $ 440.10 c.P.L. $ 4s0.e0(1) U.S. Const., amends. VI, XIV; N.Y. Const., art.I, $$ 2, 6 U.S. Const., amends. VI, XIV; N.Y. Const., art.I, $ 6 . . 28,46 42 I 28 44 4I 38 44,45 41,42 2,37,38,43 4r,42 37,39 4,36,37,38,39,43 35 24,44 2 27 36 1V COURT OF APPEALS :*::::1)1Y::Y ._._.x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PATRICK MORGAN, Defendant-Appellant. PRELIMINARY STATEMENT By permission of Hon. Sallie Manzanet-Daniels, Justice of the Appellate Division, First Department, entered May 7,2015 (A 1),1 appellant appeals from aJanuary 6,2015, order of the Appellate Division, First Department (A 2-7), People v. Morgan, 124 A.D.3d 406 (1't Dept. 2015), which affirmed 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, rNumbers preceded by "A" refer to pages in appellant's Appendix 1 J., at suppression hearing,trial, and sentencing). On June 4,2015, this Court granted appellant's motion to assign Robert S. Dean, Center for Appellate Litigation, as counsel on this appeal This Court has jurisdiction to entertain this appeal and to review the questions involved. See C.P.L. $ 450.90(1). Specifically, Point I argues that the trial court's charge in response to the jury's delivery of a defective, non-unanimous verdict was coercive towards the two identified jurors in the minority. Counsel duly protested the charge (A 231-32). Claims concerning the propriety of a trial court's instructions to a deadlocked or non-unanimous jury come within this Court's jurisdictional purview. See, e.g., People v. Aponte, 2 N.Y.3d 304 (2004). Point II has, as its backdrop, whether the court's refusal to grant the deliberating jury's request for a readback of the defense summation constituted elror, where it based its refusal not on an exercise of discretion but because the request did not involve "evidence." Such a refusal falls within the Court's power to review. See, e.g., People v. Velasco ,77 N.Y .2d 469 (1991); People v. Cronin, 60 N.Y.2d 430,433 (1983). But the matter requires preservation; and, here, counsel expressly acceded to the court's ruling (A248). Counsel's I 2 dereliction in failing to protest the court's ruling thus constitutes the ultimate basis of this Point - an ineffective-assistance-of counsel claim well within the Court's jurisdiction. See, e.g., People v. Fisher, 18 N.Y.3 d 964 (2012). Whether, after the previously deadlocked jury rendered a defective verdict that revealed its numerical split and the identities of the two jurors in the minority, the court, when ordering the jury to resume deliberations and reminding it that its verdict had to be unanimous, wrongfully refused to include any language conveying that jurors were not to surrender conscientious beliefs solely to achieve unanimity - and whether that omission rendered the instruction fxal|y coercive. Whether, by refusing to grant the deliberating jury's request to rehear the defense summation simply because it was not "evidence," the court wrongfully failed to exercise its discretion; and whether counsel's endorsement of the court's refusal constituted ineffective assistance of counsel. 1 2 3 STATUTE INVOLVED C.P.L. $ 310.30 provides, in relevantpart: 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, affer 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. 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. 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 D 4 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 readily submitted 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 fairness of the jury's deliberations and the reliability of the ultimate outcome. Deliberations were protracted and produced one outright declaration that the jury was "hung." As Point I notes, in response to the "hung" announcement, the court properly encouraged the jurors to reach agreement"if that can be done without surrendering individual judgment." But the jury then announced a verdict, which, on polling, identified two jurors who disagreed with it. The Point argues that, in sending the jury back for further deliberations following the defective verdict, the court erred in simply reminding the jurors that their verdict required unanimity. Despite defense objection that this charge risked coercing the two in the minority to accede to the will of the other ten, the court refused to include any language conveying that no juror should surrender conscientiously held beliefs solely to 5 achieve unanimity As this Court and others have recognized, where, as here, a court has learned of a deadlocked jrry's split, it should take particular care in guarding against coercion. The actual identification ofjurors in the minority only heightens that duty. As the dissent below properly concluded, the trial court here failed to exercise the requisite solicitude. The majority's decision upholding the court's charge, appellant contends, cannot withstand analysis The majority's primary defense of the court - its employment of cautionary language in response to the initial deadlock declaration - fails because its charge in response to the defective verdict nowhere referenced it. Point II argues that unfairness otherwise marked the deliberations following the defective verdict because the court, with defense counsel's seriously misguided acquiescence, refused the jury's repeated request, made during this period, to rehear the defense summation. Contrary to the view of the majority below, the trial court's categorical reason - that summations were not evidence - constituted patent effor. So did counsel's agreement with the court's position. In fact, the controlling statute, as interpreted by this Court, required the trial court to exercise discretion regarding the request. Cataloguing the many and complex reasons for rejecting the People's case, 6 counsel's summation, if reread, may have helped defense-favorable jurors in persuading their colleagues during this delicate stage of the case. By abetting the court's wrongful ruling, counsel prejudiced his client and may have cost him a more favorable verdict. In sum, this Point contends, counsel rendered ineffective assistance. STATEMENT OF FACTS The trial 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 of Edenwald 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 II: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 â.ffi., to report that he had been killed. As far as she knew, he did not own a gun (12-3Ð.2 2 Numerical references without prefix are to the trial minutes. 7 Shortly after midnight, on April 3d, Police Officer Robert Konner, out of-J9)L 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 amuzzle 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 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 -3 4, 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' 10", 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).3 But when Konner radioed a description, including to a marked police car 3 By contrast, an anonymous 911 caller, at I2:I7 a.m., reported a man running (290,573; People's exhibit 52). I 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 235rh St. and White Plains Rd. There, he saw the man who had walked past him holding the gun 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 aman 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 made in-court identifications of appellant as 9 the man (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, aphotograph) on the "pathway" to 4305 Furman (320-22). At noon that day, he found a gun, a Glock (People's exhibit 47), onthe 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 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 (33e-40). On hearing a radio run about the shooting at 12:16 â.ffi., Detective Dimitri Kalinin responded to the scene of the shooting -r(¡þs 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-s2). When Detective Bruce Kapp, of the Crime Scene Unit, arrived at2:50 10 â.ffi., 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 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,I47-48,176). On examining the Glock found at 4305 Furman, Kupp 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 of Folkes'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 11 experience, he attributed to the improper holding of a firearm (174, lI7 , 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. 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.4 While Ho developed a DNA profile for the major donor, she was unable to determine one for any of the other contributors (382-83,392). Having received an oral DNA swab from appellant, Ho prepared his a The gun's magazine contained an insufficient amount of DNA for testing (403). 12 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 of them (382-83, 387-88, 392). In her opinion, the absence of Folkes'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 (415-17). One entrance wound - distinguished, from an exit wound, by its circular or oval shape 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 "gtaze" 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 l3 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" thatthe two wounds to the back of Folkes's body were consistent with his having been shot from behind (425) Asked about the distance between Folkes and the shooter - ((v¿¡vgs 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. Counsel elicited as well that the buttock wound took a three-inch downward trajectory (435 -42). The downwardtrajectory patterns, the doctor acknowledged, could be t4 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 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 the front lower part of the left leg; 15 and the third on the upper portion of the back of the left side (468,481,487) 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 "patterÍr" 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(456,469-7I). 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 (47I-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) l6 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 (A25). 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. Rebuffi ng 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" (A 19-20,26-28). That reasonable view, the court ruled, included the injuries appellant sustained, and the location and downward trajectory of Folkes's wounds, which seemed "unlikely" if the shooter stood ten feet away (A26-28). Last, the court determined to submit second-degree weapon-possession based on possession outside the home or place of business (A 118-20). l7 Summations In summation, counsel urged why the evidence showed that Folkes had died over a struggle for the gun, 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 "hait" trigger - also raised a substantial doubt about intent to seriously injure, much less kill. So, by counsel's analysis, did the "random" location of Folkes'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 (A 55-60). Moreover, the 911 caller, who reported amaîrunning 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 hole" on the "right front" of Folkes's jeans, counsel argued that 18 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 (A 3e-60). 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 (A 37,46-47). According to the prosecutor's summation, appellant "chose death" when he "extended his arms and pulled that trigger, again and again . . ." (A 7l). h, too, addressed the DNA and GSR evidence - from the People's perspective - to urge that the evidence refuted counsel's position (see, e.g., A 8l-87 ,92) That appellant had run from the police on seeing the marked car also "screamfed] out" that he was guilty (A75-76) t9 Deliberations and judgment The jury was given the case at II:30 a.m. on January 20,2012 (a Friday) (A 149). 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 (A 140-41). 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" (A 150; court exhibit 3). After complying with these requests, the court next heard from the jury al2:47 P.ffi., when it asked for a rereading of the three homicide charges and to see all the photographs in evidence (A 162; court exhibit 4). The court honored these requests, after which deliberations resumed from 3:20 p.m. to 4:15 p.-., at which point the court sent the jury home for the weekend (A 170-71). At 1 1:05 a.m. on January 23d (Monday), the jury sent a request, clarified at 12:25 p.ffi., to rehear Officer Rodriguez's testimony "about the part when he found the hoody," and for definitions of the homicide charges (A 177,186; court exhibits 5 8. 6). The court responded from 12:50 p.m. until 1:20 p.m. (A 194-200). At I:45, the jury asked for the homicide definitions in written form 20 (A 201 ; court exhibit 7). The court provided the relevant portion of its instructions (A 205). At 3:30, the jury sent a note stating "'We the jury, hung j,rry" (A 205-06; 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 (A 208). Shortly after 10:30 the next morning, the court, with the parties' agreement, told the jury that it had been deliberating for about 8 % 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 fhe or she] wantfs] the trial to end or [is] outvoted" (A2I4,219). At l2:t7 p.m., the jury announced that it had reached a verdict (A223). 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 (A225-26). But when polled, at counsel's 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?" (A227-28). 2l 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 arn 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 aII L2jurors agree as to any count submitted to you (A 230). 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 verdi ct, . .. [that] the only way that things everf] comef] to an end is if they follow to the will of the other ten" (A 231-32). The court declined to charge anything more, stating that its instructions earlier that morning had noted lhat averdict was not required and that nothing suggested the jurors had not understood them (A232-33). Shortly after 4:15 p.m., the court sent the jury home for the day, no verdict having been reached (A239-40). At 11 :04 a.m.,the next morning (January 25tn),the jury asked to rehear selected testimony of the medical examiner and "criminalist" and also asked for a reading of the defense summation (A245-48; 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 22 criminalists" and also noted "And please read the closing statement by the defense attorney" (A251; court exhibit 12). The court honored the requests for the readback of testimony (A249,258). 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" (A257). 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 (A2a7). 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" (A248). At 1:36 p.ffi., the jury asked to hear additional portions of Berger's testimony (A260-61; court exhibit 13). The rereading concluded at3 15 p.m., at which point deliberations resumed (A 262). 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 (A263-66). 23 The Aooellate Division decision Affirming the judgment, the Appellate Division majority found no coercion or due-process violation in the court's instructions in response to the defective verdict. The absence of any language reminding jurors not to surrender conscientiously held beliefs, the majority opined, did not matter. Its absence could not have pressured the two jurors identified as in the minority because the court had included the cautionary language in the charge two hours earlier, when the jury had previously reported itself deadlocked. That the jury did not announce the ultimate verdict until the day after the "disputed charge" further established its lack of coercion (A 2-3). As for appellant's claim that the court had wrongfully rejected the jury's readback request for the defense summation, the majority declared that such a refusal does not constitute an abuse of discretion. Noting, also, that defense counsel had failed to preserve and indeed waived any attack regarding the refusal, the majority rebuffed - as unreviewable for lack of a C.P.L. $ 440.10 motion or, in any case, as without merit - appellant's argument that counsel had thereby rendered ineffective assistance (A 3-4). The dissenter found the charge in response to the non-unanimous verdict "unduly coercive." The trial court's awareness of the jnry's split, the dissent 24 found, had imposed the duty of "particular care," which the court had failed to exercise. This "deadlock charge," unlike the court's initial one, impermissibly failed to include the type of cautionary language that defense counsel had obviously wanted in "registering his objection to the chargs" - language that would have communicated to the two identified minority jurors that they need not "'follow to the will of the other ten"' (A 5-6). Though premising its vote to reverse on the coercive charge, the dissent also faulted the court in its treatment of the jrrry's readback request. The dissent found that the request may have issued from the minority jurors, who, if they favored the defense position, may have viewed the court's rejection of the request as a sign ofjudicial disapproval of the defense. In effect, the dissent concluded, the readback refusal probably exacerbated the coerciveness of the deadlock charge (A 6-7). 25 ARGUMENT POINT I AFTER THE PREVIOUSLY DEADLOCKED JURY RENDERED A DEFECTIVE VERDICT THAT REVEALED ITS NUMERICAL SPLIT AND THE IDENTITIES OF THE TWO JURORS IN THE, MINORITY, THE COURT, WHEN ORDERING THE JURY TO RESUME DELIBERATIONS AND REMINDING IT THAT ITS VERDICT HAD TO BE UNANIMOUS, WRONGFULLY REFUSED TO INCLUDE ANY LANGUAGE CONVEYING THAT JURORS WERE NOT TO SURRENDER CONSCIENTIOUS BELIEFS SOLELY TO ACHIEVE UNANIMITY - AN OMISSION THAT RE,NDEREDTHE 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. Ninety minutes after receiving this 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. Polling, however, revealed that two of the jurors disagreed with it. 26 Though this defective verdict effectively constituted another deadlock declaration, the court's response bore no resemblance to its earlier one. Solely and explicitly referencing its "final instructions" requiring a unanimous verdict, the court directed the jury simply to "resume [its] deliberations in an attempt to reach a unanimous verdict,that is where alI I2jurors 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.3 d304,308 (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 27 violate his or her conscience, or 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."); e.g., People v. Alvarez, 86 N.Y.2d761,763 (1995) (approving charge that told jurors to "'stick to ftheir] guns"' if convinced of the "'righteousness' of their positions") A court aware of the nature of the jury's split must exercise particular care in its response. See People v. Pagan,45 N.Y.2d725,727 (1978) (observing that jurors may not be "impermissibly singled out for noncompliance with the majority"). In People v. Kisoon, 8 N.Y.3d 129 (2007), this Court recognized the heightened judicial sensitivity required to address such a situation. There, the Court found that the trial court had reversibly erred in not reading a jury deadlock-note verbatim to the parties, thus not revealing to counsel the jury's disclosure of a 10-2 split for conviction. The lack of disclosure, the Court determined, was "inherently prejudicial," in that it "deprived counsel of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response. Counsel might have requested, for example, an Allen charge stressing the importance of individual jurors not surrendering conscientiously held views merely for the purpose of returning a verdict." Id. at I35 (internal quotation 28 marks and citation omitted) Directly addressing the issue in the context of a deadlock charge, where the jury had revealed an 11-1 split, Smalls v. Batista, I9l F.3d 272 (2dCir. |999), "highlighted" the "necessity" for "cautionary fdo-not-abandon consciously held beliefs] language" in such circumstances and affirmed the grarÍ of Smalls's habeas petition for the lack of any balancing instructions. A "suspect charge," the Second Circuit observed, is analyzed "from the position of a minority juror," who, if "fearfully incline d, may presumably suspect a disgruntled judge can find them out." Id. at 280 (internal quotation marks and citation omitted). Consonant with these principles, the Second Circuit endorsed the instructions that were delivered to a selÊdeclared "'struggling"' 1 1-1 jury in United States v. Baldeo, _ Fed. Appx. _,201.5 \ryL 5023999 (2d Cir. 2015). They 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."' Id. at * 1. Cf., e.g., United States v. Sanders ,232Fed. App". 42,43-44 (2d Cir.2007) (where the deadlocked jury was "'roughly split,"'the court's unobjected-to charge to "'proceed following reason and common sense"'was deemed balanced, though it omitted the admonishment not to surrender conscientious beliefs). 29 Here, the trial 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 fwould] everf] comef] to an end is if they follow to the will of the other ten." The Appellate Division majority's observation that counsel "did not actually request any particular instruction" did not signiff that it found the coercion argument unpreserved. Indeed, the majority rejected it on the merits, rebuffing appellant's argument that he was "deprived of due process by the absence . . . of language reminding the jurors not to surrender their conscientiously held beliefs." A 2, In any event, while counsel did not proffer specific language, he made clear to the trial court that he wanted "another instruction" because he was "concerned" about the two jurors in the minority. A23l-32. This surely communicated counsel's desire for an instruction that would remind the minority jurors of their right to stick to 30 their beliefs and his objection to the charge as it stood. Cf. People v. Garcia, 25 N.Y.3d 77,82,86 (2015) (defense counsel's objection, "lw]e don't have that witness here," sufficed to preserve a federal constitutional confrontation- claim). While endorsed by the Appellate Division majority, the rationale for the trial court's refusal - that its earlier instruction, delivered in response to the jury's declaration that it was "hung," sufficed - cannot withstand scrutiny Appellant has no quarrel with the majority's observation that jurors are presumed to follow the legal instructions they are given. See A 2-3. But that observation lacks force in the context of this case. That is because the court's instructions in response to the defective verdict specifically referenced only its unanimity instructions: "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." Not only did this instruction not resurrect any cautionary "stick-to-your-guns" language, but its absence may well have signaled that the minority jurors "had no other choice but to convince [the others] or surrender." Sm?lls, 191 F.3d at The charge thus stood in stark contrast to that approved in United States 280. 31 v. McDonald ,7 59 F.3d 220 (2d Cir. 2014), where polling revealed a juror's disagreement with the verdict. There, the trial court told the jurors (without objection) that it would "'send you back to continue to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions that I have given you."' Id. at 222. The explicitly incorporated prior instructions had declared each juror's right "to hold fast to . . . conscientiously held beliefs." Id. at224.s Reaffirming Smalls's framework that review of supplemental instructions to a divided jury must "adopt the viewpoint of a juror in the minority position," id. at 223, the Second Circuit found that the post-polling instruction did not suggest that the only just result was a verdict. Rather, "on its face, [it] left open the possibility that the jurors would have principled disagreements that would prevent them from reaching a unanimous verdict." 5 The post-polling instructions thus essentially included the principles found in the relevant model instruction for the federal courts, which provides: It appears from the answers given from the polling of the jury that your verdict is not unanimous. As I previously instructed you, the Court cannot accept a verdict of guilty or not guilty unless it is unanimous. I must therefore ask that you return to thejury room and continue your deliberations. The instructions which I previously gave still apply. Specifically I remind you that you should discuss and consider the evidence, listen to the arguments of your fellow jurors, present your individual views, and consult with one another. You should not hesitate to change your views if you are convinced they are erroneous. However, you should not surrender a conscientiously held conviction simply because you are outnumbered or merely in order to reach a verdict. 1-9 Leonard B. Sand et al., Modern Federal Jury Instructions - Criminal n9J2 (2014). 32 Id. at 224. More, the instruction's explicit reference to the prior ones "further supported" the reviewing court's conclusion that the charge was not coercive rd. While the charge to appellant's jurors included the words "attempt to reach a unanimous verdi ct," itwas not inviting of disagreements. It repeatedly emphasized the requirement of a unanimous verdict, which therefore meant that the court was "not going to accept this verdict" and instead required the court to "order that the 12 jurors go back to the jury room." As for the absence of any reference to the prior instructions, from the viewpoint of the two jurors in the minority position - whose position counsel, by his protest, was seeking to protect -that omission may well have been telling. Put another way, circumstances here had changed between the "hung"- jury announcement - v¡þeps the court had no idea of the nature of the split - and the public outing of two holdouts, where the possibly "disgruntled judge . [found] them out." Smalls 191 F.3d at280. The latter circumstance warranted heightened protection against a coerced verdict - not the assumption that the minority jurors would summon language from an earlier charge delivered under different circumstances Last, by the majority's lights, that the jury did not announce the verdict JJ "until a full day after the disputed charge was given" established the charge's lack of coercion. A 3. This conclusion does not stand up either. While the First Department has voiced a similar view in other cases - see, e.g., People v. Bonilla, 225 A.D.2d330,330-31 (1st Dept. 1996); People v. Cannon,236 A.D.2d294,295 (1st Dept. 1997) - it has not explained how additional deliberations can cure a coercive charge. In fact, they may merely signi$i the fortitude of particular jurors laboring under coercion - but who, in the end, after all, have rendered the verdict of conviction on appeal. No wonder, then, that this Court has noted that the timing of a verdict is "not dispositive." Appnte, 2 N.Y.3d at309. The charge itself matters - whether it is correct or not, not the speed with which it produces results. See United States v. Hynes,424F2d754,758 (2d Cir 1970); e.g., Baldeo ,2015 WL 5023999 at * 1 (upon finding that the charge itself "did not encourage jurors to abandon their conscientiously held doubts without any principled reason," noting as well the "lengthy post- instruction" deliberations); Smalls, 191 F.3d at281 (observing that, while the length of deliberations may reinforce a non-coerciveness finding as to an "evenhanded" charge, it cannot save a coercive one). Here, the two minority 34 jurors labored under a coercive charge - until the verdict was reached.6 That verdict - with the two now joining the ten - must be reversed. 6 Of course the law did not require appellant to elicit the nature of the disagreement between the majority and minority jurors or to prove the impact of the charge on the minority jurors or on the verdict. Except for claims involving outside influences or improper conduct, the law precludes such intrusion into a jury's deliberations. See, e.g., People v. Delucia, 20 N.Y.2d 275,279-80 (1967); C.P.L. $ 330.30(2). 35 POINT II BY REFUSING TO GRANT THE DELIBERATING JURY'S REQUEST TO REHEAR THE DEFENSE SUMMATION SIMPLY BECAUSE IT WAS NOT "EVIDENCE," THE COURT ERRONEOUSLY FAILED TO EXERCISE ITS DISCRETION; AND BY ENDORSING THE COURT'S WRONGFUL AND PREJUDICIAL RULING, DEFENSE COUNSEL RENDERED APPELLANT INEFF'ECTIVE AS SISTANCE. During its labored deliberations, after declaring itself hung and then rendering a defective, non-unanimous, verdict, the jury twice asked to have the defense summation reread. V/ithout engaging in any analysis of, for example, competing interests or concerns about prejudice, the trial court rejected the request simply 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., arl.I, $ 6. Sç9 Herring v. New York, 422U.5. 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."). Counsel's utter acquiescence to and endorsement of the court's peremptory ruling also violated appellant's right to counsel - to the effective assistance of counsel under the Federal and State Constitutions. The judgment may not stand. 36 A. the defense summation simply because it was not "evidence." 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. Interpreting the statute, in People v. Velasco, 77 N.Y.2d 469 (1991), this Court recognized that the jury may request summations, as "material pertinent to its deliberations." Id, at 474. \lhether to grant such a request in a particular case, the Court found, falls within the trial court's discretion. See id. Where a court possesses discretion, it commits error by failing to exercise it - such as by issuing categorical rulings. In People v. Williams, 56 N.Y.2d 236 (1982), for example, this Court found that the trial court "abdicatefd] its responsibility" in basing its Sandoval rul\ng on only one factor - the defendant's willingness to place his interests above those of society. Id. at 237 . As the V/illiams Court put it, where an exercise of discretion is "left to the trial court," "it is . . . an exercise of discretion that should be perþrmedby the trial court." Id. at 240 (emphasis in original). A trial court also errs when it 37 wrongly perceives that it has no discretion to exercise. In People v. Cronin, 60 N.Y.2d 430 (19S3), for instance, the Court determined that the trial court, employing a wrong legal standard, improperly "felt constrained to draw the line" at a psychiatrist's expression of opinion concerning the defendant's intent. Id. at 433. Here, too, 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 "fo]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 for defense counsel, after echoing 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 any considered, judicial, judgment. Whether based on its misapprehension of the scope of $ 310.30 or unawareness of Velasco's explicit holding, the court's misguided and categorical ruling constituted error.T 7 Both the Appellate Division majority and respondent, in its brief below, misguidedly invoked People v. Clariot, 188 A.D.2d28l (1st Dept. 1992), to salvage the trial court's ruling. See A 4; Appellate Division Brief for Respondent [RB] at 25. Clariot's statement - "lilt is well settled that declining to read back a summation is notan abuse of discretion," 188 A.D.2d a|282 - cites for direct support People v. Sullivan, 160 A.D.2d 16l,163 (lst Dept. 1990), which þre-Velasco) declared that summations do (continued...) 38 Appellant need not demonstrate that an actual exercise of discretion would have resulted in a rehearing of the summation. See Cronin, 60 N.Y.2d at 352-53 (suggesting that the trial court "could have found fthe testimony in questionl admissible"); Williams, 56 N.Y.2d at240 ("This is not to say that any particular conviction in this case should have been excluded or that cross- examination should have been limited to only a certain number of past convictions."). Still, an assessment of relevant factors surely "could have" supported granting the readback request: The summation contained no improprieties, as the trial court itself implicitly agreed, overruling each of the prosecutor's three objections during it (A 37,46-47). Nor, given the jury's numerous requests for readbacks of discrete testimony (".g., "Officer Rodriguez's testimony about the part when he found the hoody";the criminalists' and medical examiner's testimony), could the summation have distracted the jury from its own recollection of the facts - which, the court had repeatedly instructed, controlled. Rather, as detaile d ante at 1 8- 19, the defense summation contained counsel's extended analysis of the evidence, culling from it inferences that 7(...continued) not fall within $ 310.30's category of ooother matter pertinent to the jury's consideration of the case." Of course, this Court's contrary interpretation of C.P.L. $ 310.30 controls. 39 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 of Folkes'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., A 5 t, 57 -59). In short, the court's blanket refusal of the jury's request lacked legal basis and constituted an abdication of its judicial responsibility. As discussed below, defense counsel's input - ú(I do know it's not evidence. So I would be happy to do what you like." - 1¡v¿s derelict as well. Defense counsel rendered ineffective assistance by happily accepting the court's unqualified denial of the jury's readback request. B The Appellate Division ruled that, since defense counsel "expressly agreed" to the trial court's "proposal to deny the jury's request," he rendered the matter "unpreserved and waived." A 3. In fact, counsel's acquiescence to the court's clear-cut error did far greater damage to his client: It rendered ineffective as sistance. New York's standard for the effective assistance of counsel has long been whether the defendant was afforded "meaningful representation," People 40 v. Benevento, 91 N.Y.2d708,712 (1998), which requires assessing the representation in light of the law and the facts of the case, ordinarily viewed in their totality at the time of trial, see People v. Baldi, 54 N.Y.zd 137,147 (1981). Moreover, counsel's failure must have seriously compromised the defendant's right to a fair trial. See Benevento, 91 N.Y.2 d at 7I3 . The federal standard requires demonstration that the attorney's performance failed to meet an objective standard of reasonableness and that, but for counsel's deficiency, a reasonable probability exists that the result of the proceeding would have been different. See Strickland v. Washington,466 U.S. 668, 688-94 (1984). Essentially, in contrast to the federal test, this State's standard "is ultimately concerned with the fairness of the process as a whole rather than [the representation's] particular impact on the outcome of the case." People v. Wright, 25 N.Y.3 d769,779 (2015) (internal quotation marks and citation omitted); People v, Heidgen, 22 N.Y.3 d259,278 (201,3). Our State has thus "adopt[ed] a rule somewhat more favorable to defendants." People v. Turner, 5 N.Y.3d 476,480 (2005). See People v. Stultz, 2 N.Y.3d 277,284 (2004) (noting that, under the State test, "a defendant's showing of prejudice [is] a significant but not indispensfa]ble element in assessing meaningful representation"); accord People v. Clermont,22 N.Y.3d 931 ,934 (2013). 4l Both the nation's high court and this Court have also recognizedthat"a single fomission] in an otherwise competent performance fmay be] so egregious as to deprive a defendant of his constitutional right." Turner, 5 N.Y.3d at 480 (internal quotation marks and citations omitted); accord People v. McGee,20 N.Y.3d 513, 518 (2013); People v. Baker, 14 N.Y.3d266,270 (2010). Establishing such a claim requires showing the strength of the omitted tactic, see Turner, 5 N.Y.3d at 481, as well as the absence of a strategic or other legitimate explanation for the error, see McGee,20 N.Y.3d at 518; Baker, 14 N.Y.3d at 270-71. For example, counsel's failure to object to several improper remarks in the prosecutor's closing argument in People v. Fisher, 18 N.Y.3 d964 (2012), met the test. There, this Court found that the summation improprieties risked prejudicing the jury on witness credibility, on which the trial's "outcome turned entirely." Id. at 966. The summation, the Court found, "directed the jury's attention elsewhere - a circumstance that competent counsel should have sought to prevent." Id. Here, given the critical nature of counsel's dereliction - at the most critical juncture of the trial - counsel rendered ineffective assistance no matter the state or federal test applied. Cf. Wright, 25 N.Y.3 d at779-81 &, n.6 42 (observing that the type of ineffectiveness claim at issue there - the lack of challenge to the prosecutor'S Summation - .(preS€nts a unique set of considerations given the nature of closing statements generally" and questioning the dissent's focus on pigeonholing the ineffectiveness analysis into a single- or multiple-error category). To begin: the trial court's legally baseless ruling was not "debatable" because the applicable and controlling law - Velasco's interpretation of C.P.L. $ 310.30 - is not debatable. To be sure, several lower appellate courts have gotten the readback-issue wrong - including the majority in appellant's case - or have been sloppy in their analysis or writing. But appellant does not read this Court's ineffectiveness jurisprudence to endorse incorrect lower-court decisions that misstate or ignore clear law emanating from this Court, let alone to use them to insulate counsel from an ineffectiveness finding. 43 Counsel's dereliction in appellant's case thus sharply contrasts with conduct this Court has excused because it turned on a losing or close legal issue. Cf., e.g., People v. Keschner, 25 N.Y.3 d704,724 (2015) (finding that counsel was not ineffective for failing to object to the trial court's accomplice liability instructions, whose impropriety was "not clear-cut" under this Court's charge-as-a-whole analysis); People v. Santiago, 22 N.Y.3 d740,750 (2014) (deeming counsel not ineffective for failing to object to the prosecutor's use of slides during summation, where the record was not clear that the court would have been required to sustain an objection); Heidgen, 22 N.Y.3d at278-79 (counsel not found ineffective where, although he should have moved to dismiss the charge of depraved indifference murder, the motion would not have been granted); People v. Thompson, 21 N.Y.3d 555, 561 (2013) (counsel's failure to preserve a rejected for-cause challenge by not peremptorily striking the juror in question - an admitted friend of the prosecutor - was "questionable" but not ineffective, where the court's ruling on the cause challenge was "debatable"). Second, contrary to the Appellate Division's faulting appellant for the lack of a C.P.L. $ 440.10 motion, no trial tactic or any other legitimate explanation can explain, let alone excuse, counsel's expressed pleasure with 44 the court's blanket rejection of the jury's request. That the appellate panel did not suggest one does not surprise. Cf. Thompson, 21 N.Y.3d at 560 (opining that defense counsel may have liked the juror at issue). The defense could only have benefitted from a challenge to the court's failure to exercise its discretion. And it could only have benefitted had the court honored the jury's twice-voiced request. It is thus "possible from the trial record alone to reject all legitimate explanations" for counsel's dereliction. People v. Howard, 22 N.Y.3d 388, 401 (2013) (internal quotation marks and citation omitted). Defense counsel's explicit, on-the-record, statements simply betrayed ignorance of the law: All he "kn[e]w" was that summations did not constitute evidence Next, counsel's failure to preserve the issue for appeal itself caused appellant harm - assuming that the trial court would have persisted in refusing the jury's request. See Thompson, 21 N.Y.3d at 560 (recognizing as potential prejudice "the loss of a significant appellate argument") As matters stood, given the timing and nature of the deliberations preceding the readback request, the court's refusal itself risked grave prejudice to the defense. The very tenor of the deliberations signified that the jury viewed the prosecution's case as hardly overwhelming.s Not only had the I The court, too, apparently viewed the prosecution's case as far from compelling, (continued...) 45 deliberations extended over four days at the time of the request, but the jury't non-unanimous 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 a rebuff or signal ofjudicial disapproval directed to the defense position. At the same time, as the dissent below recognized, the denial deprived any defense-favorable jurors of analytic ammunition that might have persuaded their colleagues. See A 7. After all, by the time of the request, five days had passed since the jury had heard the summation - likely making its detailed interpretation of the evidence exceedingly difficult to recall. Most fundamental, the jrrry's very making of the request - indeed, making the request twice - manifested the importance it attached to the matter. Cf. People v. Kisoon, I N.Y.3d I29,134-35 (2007) (stressing that the court's response to a jury request for further instruction "may well determine 8(...continued) as it revealed during colloquy with the parties at the close of the evidence. Specifically, in agreeing to charge on circumstarftial evidence and to submit second-degree manslaughter, it told the parties that Konner was not a"teal" eyewitness; that the People had established no motive for the shooting; that Konner could not say who had uttered oooplease don't kill me"'; and that the evidence - including the downward trajectory of atleast 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 8-10'. In the court's opinion, allthis added up to a oÎery reasonable view of the evidence" that Folkes incurred his wounds in a struggle over the gun, "which would fall under the definition of reckless" (A 25-28). 46 whether a verdict will be reached, and what that verdict will be") (internal quotation marks and citations omitted). Had courisel properly protested, the court should have and might well have exercised its discretion in favor of granting the jury's request. As a consequence, appellant might well have received a more favorable verdict. Sçe Strickland,466 U.S. at 688-94. CONCLUSION THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Susan H. Salomon Of counsel October 30,2015 47