The People, Appellant,v.Terrance L. Mack, Respondent.BriefN.Y.September 10, 2015Brief Completed: March 17, 2016 To Be Argued By: Geoffrey Kaeuper Time Requested: 15 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, Defendant-Respondent. SUPPLEMENTAL BRIEF FOR APPELLANT APL-2014-00175 SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 POINT I CONCLUSION TABLE OF CONTENTS The court did not commit a mode of proceedings error by taking the verdict that the jury reached after it sent out requests that the court had yet to answer. + 1 I 5 TABLE OF AUTHORITIES CASES People v Ahmed, 66 NY2d 307 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Albanese, 45 AD3d 691 (2d Dept 2007), lv denied 10 NY3d 761 (2008) . . . . . . . . . . . 1 People v Dekle, 56 NY2d 835 (1982) .............................................. 4 People v Fuentes, 246 AD2d 474 (1st Dept 1998), lv denied91 NY2d 941 (1998) .......... 1 People v Kisoon, 8 NY3d 129 (2007) .............................................. 2 People v Louido, 70 NY2d 428 ( 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Middleton, 54 NY2d 42 (1981) ....... . ................................. .. 4 People v 0 'Rama, 78 NY2d 270 (1991) .. . .. .. . . .. . . .. . .. .. .. .. . . .. . . . .. . . .. .. . .. .. 1 People v Silva, 24 NY3d 294 (2014) .............................................. 2 People v Sorrell, 108 AD3d 787 (3d Dept 2013), lv denied23 NY3d 1025 (2014) . . ..... .. . 1 .. -u- POINT I The court did not commit a mode of proceedings error by taking the verdict that the jury reached after it sent out requests that the court had yet to answer. In his supplemental brief, defendant presents the question now before this Court as though it is a matter of settled law: to disagree with his position would be "tantamount to overruling" People v O'Rama (78 NY2d 270 [1991]) or indeed would "overrule 0 tRama" (Supp Br, 3-4, 1 0). In truth, although this Court has not previously addressed the mode of proceedings question here, before this case the Appellate Divisions were consistent in holding that it is not a mode of proceedings error to take a jury verdict in these circumstances (People v Sorrell, 108 AD 3d 787, 793 [3d Dept 2013], lv denied23 NY3d 1025 [2014]; People v Albanese, 45 AD3d 691, 692 [2d Dept 2007], lv denied 10 NY3d 761 (2008]; People v Fuentes, 246 AD2d 474,475 [1st Dept 1998], lv denied91 NY2d 941 [1998]). In fact, the Appellate Divisions had found that it was not error at all (Sorrell, 108 AD3d at 793; Albanese, 45 AD3d at 692; Fuentes, 246 AD2d at 475). Thus, hyperbolic claims about overruling O'Rama cannot advance defendant's legal argument here. Defendant claims that a clear line of cases from this Court has found mode of proceedings errors from failure to respond to juror notes (Supp Br, 8), but he cites no case finding a mode of proceedings error except where there was a lack of l notice (see People v Silva, 24 NY3d 294 [2014]; People v Kisoon, 8 NY3d 129 [2007]). 1 The one case he cites that involved a comparable factual situation, People v Lourido (10 NY2d 428 [1987]), did not, as defendant suggests, apply the mode of proceedings doctrine. In Lourido, a pre-0 'Rama case, the defense did object to taking the verdict without first asking the jurors if they wanted to hear answers to the previous notes (id. at 432). This Court found, under those circumstances, that it was error not to accede to the defense's request (id. at 435). Thus, Lourido cannot be the basis for finding a mode of proceedings error here. Defendant further claims that notice becomes "meaningless" if the court accepts the jury verdict in a case like this because notice is intended to ensure an opportunity to be heard before the court responds (App Br, 10). But it is beyond dispute here that defense counsel had an opportunity to be heard after receiving notice of the exact contents of the note and before the court took any further action. Defense counsel was not blind-sided by the court. He had a full opportunity to make a strategic decision about whether it would be in defendant's interest to ask to the jurors to hear responses to the previous requests and then reconsider their verdict, and counsel made such a decision. That strategic decision 1 To the extent defendant now appears to claim an Ahmed error (Supp Br, 6, 8; see People v Ahmed, 66 NY2d 307 [ 1985]), that claim must be based on a novel theory that defendant leaves unexplained. Ahmed held that it is a mode of proceedings error for the court to delegate its substantive duties. Nothing comparable happened here. 2 by trial counsel should not be converted into an automatic reversal on appeal. Defendant's arguments about overturning 0 'Rama all gloss over the explicit reasoning in 0 'Rama as to the mode of proceedings error found there. The notice violation was held to be a mode of proceedings error specifically because it "had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial" ( 0 'Rama, 78 NY2d at 279). Counsel cannot object if he or she has no notice, so the preservation rule would be nonsensical in that circumstance. But that reasoning does not apply here, and O'Rama gives no other basis for its finding of mode of proceedings error. Thus, 0 'Rama counsels against finding a mode of proceedings error in a circumstance such as this, where the defense had an opportunity for input and made a strategic choice. Defendant contends that the strategic decision by counsel is "irrelevant" because the court was obligated to provide an answer (Supp Br, 12). That may be some argument for error, 2 but it says nothing about whether any error was a mode of proceedings error. This Court has never held that counsel is relieved of 2 Defendant is wrong, however, that the court is invariably required to answer every note a jury sends out, regardless of what happens afterward. The jury can certainly withdraw a request - indeed, that also happened in this case (R 531 ), and there has been no claim that it was an error not to respond in that circumstance. As to error, the issue is whether- in the absence of any objection by the defense- the court has discretion to treat a jury note indicating that the jury has reached a unanimous verdict as a withdrawal of any previous requests. But this Court need not reach that question because, even if there was an error here, it was not a mode of proceedings error. 3 preservation requirements whenever a court fails to fulfill its statutory obligations. The very real prospect of gamesmanship here is a legitimate concern in detennining whether an error should be deemed to affect the mode of proceedings (see People v Dekle, 56 NY2d 835, 837 [1982]; People v Middleton, 54 NY2d 42, 49 [1981]). Indeed, allowing such gamesmanship here would have an effect opposite to O'Rama's goal of maximizing participation. There is, therefore, no reason to expand the "very narrow" exception to the preservation requirement in this case. 4 CONCLUSION The order of the Appellate Division should be reversed, and the judgment of conviction should be reinstated. Dated: March 17, 2016 5 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney ~£.- ~ BY:GE0 KAEUPEo/" Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614