The People, Respondent,v.Patrick Morgan, Appellant.BriefN.Y.November 16, 2016CENTER FOR APPELLATE LITIGATION 120 WALL STREET - 28TH FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535 ATTORNEY-IN-CHARGE SENIOR LITIGATION SPECIALIST ROBERT S. DEAN SUSAN H. SALOMON MANAGING ATTORNEY ELAINE E. FRIEDMAN (212) 577-2523 EXT. 518 SENIOR SUPERVISING ATTORNEY ssalomon@cfal.org MARK W. ZENO SUPERVISING ATTORNEYS ABIGAIL EVERETT BARBARA ZOLOT July 6, 2015 VIA EXPRESS MAIL Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Re: People v Morgan (Patrick) APL-2015-00123 Your Honors: Pursuant to Rule 500.11(e) (“SSM” review), appellant Patrick Morgan respectfully requests the Court to accept the proposed reply, below, to respondent’s letter submission [hereinafter “RL”]. The original and two copies of this proposed reply letter, with proof of service of one copy on respondent, are enclosed. 1 REPLY ARGUMENT POINT I CONTRARY TO RESPONDENT’S ASSORTED CLAIMS, APPELLANT’S ARGUMENT THAT THE CHARGE WAS COERCIVE IS PRESERVED, REVIEWABLE ON THIS RECORD, AND POSSESSES MERIT (replying to RL at 5-12). Respondent contends that procedural deficiencies prevent this Court from reaching the merits of appellant’s argument regarding the charge. In the alternative, respondent argues that there was nothing coercive about the charge. Respondent is wrong on all counts. Citing the Appellate Division’s observation that counsel “did not actually request any particular instruction,” respondent asserts that counsel’s protest to the charge did not preserve the coercion claim for this Court’s review. See RL at 5-6. The majority’s observation did not signify 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.” Appellant’s Appendix [hereinafter “A”] at 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 — who might believe that “the only way that things ever[] come[] to an end is if they follow to the will of the other ten.” A231-32. This surely communicated counsel’s desire for an instruction that would remind the minority jurors of their right to stick to 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, “[w]e don’t have that witness here,” sufficed to preserve a federal constitutional confrontation claim). Respondent seeks to erect another procedural barrier to this Court’s review: appellant’s failure to prove, “from the instant record, whether the court’s charge had any impact on the minority jurors or on the defendant’s verdict.” See RL at 10-12. In respondent’s opinion, the law obliged appellant to elicit the nature of the disagreement between the majority and minority jurors. Respondent cites nothing that would permit such intrusion into the jury’s deliberations. In fact, except for claims involving outside influences or improper conduct, the law precludes it. See, e.g., People v. DeLucia, 20 N.Y.2d 275, 279-80 (1967); C.P.L. § 330.30(2). 2 As to the merits, respondent claims that United States v. McDonald, 759 F.3d 220 (2d Cir. 2014), not only undercuts Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999), but “encourages the very type of charge issued by the court in the instant case.” See RL at 8-9. Respondent misapprehends McDonald. It reaffirmed Smalls’s framework requiring that review of supplemental instructions to a divided jury must “adopt the viewpoint of a juror in the minority position.” 759 F.3d at 223. And the charge in McDonald — delivered after polling revealed at least one minority juror — stood in stark contrast to that delivered to appellant’s jury. The court told McDonald’s jurors 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. This charge, the Second Circuit found, 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.” Id. at 224. While the charge to appellant’s jurors included the words “attempt to reach a unanimous verdict,” it was not inviting of disagreements. Set out at 14 of appellant’s opening letter, the charge repeatedly emphasized the requirement of a unanimous verdict, one where “all 12 jurors must agree,” and 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.” What is more, the McDonald charge’s explicit reference to the trial court’s prior instructions — including those urging jurors “to hold fast to their conscientiously held beliefs” — “further supported” the reviewing court’s conclusion that the charge was not coercive. 759 F.3d at 224. Appellant’s jurors heard no such reference. 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. On the matter of the jury’s continued deliberations following the charge, respondent invokes First Department cases for the proposition that “additional deliberations” “undermine” a coercion claim. See RL at 6. These cases do not explain how additional deliberations can cure a coercive charge; they may merely signify the fortitude of particular jurors laboring under coercion — who, in the end, after all, have rendered the verdict of conviction on appeal. More, respondent does not acknowledge this Court’s observation that the timing of a verdict is “not dispositive.” People v. Aponte, 2 N.Y.3d 304, 309 (2004). Last, respondent stays silent on People v. Kisoon, 8 N.Y.3d 129 (2007), which, as appellant discussed, recognized the heightened judicial sensitivity required to address a deliberating jury that has revealed the nature of its split. In the context of that case, this Court described as “intelligent” a potential defense request for a charge that jurors not surrender conscientiously held beliefs. See id. at 135. Here, counsel sought such a mitigating instruction. The court’s refusal to give one requires reversal. 3 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 (replying to RL at 12-17). In arguments that, among other things, ascribe motives and reasoning to defense counsel and the trial court at odds with the record, respondent seeks to undermine appellant’s ineffective-assistance argument regarding counsel’s response to the jury’s defense-summation readback request. Respondent’s arguments collapse on inspection. By way of a prelude, respondent criticizes appellant for even making the ineffectiveness 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. See RL at 12-13. Although respondent concludes this introductory section with the acknowledgment that “no rule of appellate practice prohibits such transfiguration,” RL at 13,1 respondent’s comments require a response. 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- of-justice jurisdiction for unpreserved error should hardly merit suspicion. In seeking such relief, appellate counsel necessarily must demonstrate — more, emphasize — 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-of-counsel analysis. Last, such counsel can — 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 1 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 “regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court.” C.P.L. § 470.35(1). 4 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 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.2d 210, 215 (1976) (“The mere emphasis of one prong of attack over another or a shift in theory on appeal, will not constitute a failure to preserve.”). 2 Turning to the ineffectiveness argument, 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 for the court to reject the request out of some calculation regarding the jury’s deliberative process. See RL at 13-14. Respondent cites no case — and appellant has found none — to support its implicit claim that a defense counsel’s explicit on-the-record explanation for his conduct still requires a § 440.10 motion. In any case, 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 “liked.” Next, respondent proposes that the trial court rejected the jury’s readback request because of an “implicit finding . . . that the summation would not be helpful to the jury.” Thus, respondent continues, the court did not err under Velasco because it exercised discretion in denying the request — and, because it did not err, counsel was not ineffective. See RL at 15. Respondent would put words in the court’s mouth that it never uttered or remotely suggested. This exercise — like its attempt to put ideas in defense counsel’s head — warrants peremptory rejection. 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 A6-7. Respondent’s effort to read the dissenter’s mind — suggesting that she “did not view [appellant’s] ineffective assistance of counsel claim as particularly meritorious” — thus strikes another wrong note. 5 Last, respondent argues, even assuming that the court’s “declination to read back the summation presents a closer question, and that an objection by counsel, if raised, ‘would have been successful,’” counsel’s omission did not amount to ineffectiveness. RL at 15. In support, respondent says that counsel merely failed to object “to the court’s discretionary response to one of many notes from the jury,” and that counsel’s “decision to acquiesce in the court’s decision not to read back the summation may have been the result of a legitimate trial strategy.” RL at 16-17. As discussed above, however, the court rendered no such response and defense counsel expressed only ignorance of the law, not strategy. Invoking People v. Keschner, _ N.Y.3d _, 2015 N.Y. Slip Op. 05596 (6/30/15), respondent also claims that the Appellate Division majority’s finding no error as to the readback denial signified that the issue was not clear-cut and counsel’s lack of objection, therefore, not ineffective. In a similar vein, respondent 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. See RL at 17. 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 — 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 that misstate or ignore clear law emanating from this Court, let alone to use them to insulate counsel from an ineffectiveness finding. 6 CONCLUSION FOR THE REASONS STATED IN APPELLANT’S OPENING SUBMISSION AND THOSE HEREIN, THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Dated: New York, New York July 6, 2015 Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 (212) 577-2523 By ____________________ Susan H. Salomon Of Counsel 7