The People, Appellant,v.Terrance L. Mack, Respondent.

Brief

N.Y.Sep 10, 2015

To Be Argued By: AMANDA L. HOULE Time Requested: 15 Minutes APL-2014-00175 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, Respondent. _______________________ __________________________________________________________________ BRIEF FOR RESPONDENT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Respondent David R. Juergens, Esq. BY: SULLIVAN & CROMWELL LLP Of Counsel AMANDA L. HOULE, ESQ. 125 Broad Street New York, NY 10004 Tel: (212) 558-4443 Fax: (212) 291-9904 Date Completed: December 15, 2014 _________________________________________________________________ -i- TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................................... i-vi QUESTIONS PRESENTED .........................................................................................................1 PRELIMINARY STATEMENT ..................................................................................................2 STATEMENT OF FACTS ...........................................................................................................5 Jury Selection ..............................................................................................................9 Megan Torres’s Trial Testimony ..............................................................................12 Testimony Regarding the Photo Identification .........................................................14 Remaining Witnesses for the People ........................................................................16 Witnesses for the Defense .........................................................................................17 Closing Arguments and Jury Charge ........................................................................19 Jury Deliberations .....................................................................................................20 Post-Trial Motion ......................................................................................................24 ARGUMENT ..............................................................................................................................26 Point I. This Court Should Affirm the Appellate Division’s Decision as the Trial Court’s Failure to Meet Its Core Responsibility Under NY CPL 310.30 Constituted a Mode of Proceedings Error..........................................................................................................26 A. The Trial Court Failed to Provide a Meaningful Response to the Jury’s Requests under NY CPL 310.30 ........................................................................................27 B. The Jury Did Not Withdraw Its Requests .........................................................29 -ii- C. The Trial Court Failed to Provide Meaningful Notice of the Jury’s Requests under NY CPL 310.30 ........................................................................33 D. Defense Counsel Could Not Have Cured the Court’s Errors by Consent ..........37 Point II. This Court Should Affirm the Appellate Division’s Decision as Mr. Mack Was Provided Ineffective Assistance of Counsel at Trial...............................................39 A. Failure to Request a Response to the Jury Requests ...........................................41 B. Prejudicial Errors Related to Introduction of the Photo Identification and Array ...........................................................................................................43 1. Defense Counsel Provided Ineffective Representation When He Opened the Door to Prejudicial Testimony Regarding the Prior Photo Identification of Mr. Mack ............................................................................................44 2. Defense Counsel Also Provided Ineffective Representation When He Failed to Object to the Prejudicial Admission of the Photo Array ..........45 3. Defense Counsel Failed to Object to the Prejudicial Negative Identification Testimony ...............................................................................................48 C. Failure to Seek an Unbiased Jury .......................................................................49 D. Defense Counsel’s Errors Cumulatively Amount to Ineffective Assistance of Counsel ..............................................................................................................55 CONCLUSION ..........................................................................................................................56 TABLE OF AUTHORITIES CASES Page(s) Grebow v. City of New York, 173 Misc. 2d 473 (N.Y. Sup. Ct. N.Y. Cnty. 1997)....................................................... 5 Hughes v. United States, 258 F.3d 453 (6th Cir. 2001) ............................................................................ 53, 54, 55 Johnson v. Armontrout, 961 F.2d 748 (8th Cir. 1992) ........................................................................................ 53 People v. Agosto, 73 N.Y.2d 963 (1989) .............................................................................................. 30-31 People v. Albanese, 45 A.D.3d 691 (N.Y. App. Div. 2d Dep’t 2007) .......................................................... 31 People v. Alcide, 21 N.Y.3d 687 (2013) ................................................................................................... 39 People v. Baldi, 54 N.Y.2d 137 (1981) ....................................................................................... 40, 55, 56 People v. Becoats, 17 N.Y.3d 643 (2011) ................................................................................................... 37 People v. Benevento, 91 N.Y.2d 708 (1998) ................................................................................................ 40-41 People v. Berroa, 99 N.Y.2d 134 (2002) ................................................................................................... 40 People v. Bolden, 58 N.Y.2d 741 (1982) ................................................................................................... 46 People v. Bonaparte, 78 N.Y.2d 26 (1991) ..................................................................................................... 29 People v. Boss, 261 A.D.2d 1 (N.Y. App. Div. 1st Dep’t 1999) ....................................................... 50-51 TABLE OF AUTHORITIES (continued) Page(s) -ii- People v. Boudin, 90 A.D.2d 253 (N.Y. App. Div. 2d Dep’t 1982) ............................................... 49-50, 51 People v. Brensic, 136 A.D.2d 169 (N.Y. App. Div. 2d Dep’t 1988) ............................................. 51, 52-53 People v. Caban, 5 N.Y.3d 143 (2005) ..................................................................................................... 41 People v. Cahill, 2 N.Y.3d 14 (2003) ....................................................................................................... 54 People v. Caserta, 19 N.Y.2d 18 (1966) ................................................................................................ 46-47 People v. Cruz, 14 N.Y.3d 814 (2010) ............................................................................................. 28, 43 People v. Culhane, 33 N.Y.2d 90 (1973) ..................................................................................................... 51 People v. DeRosario, 81 N.Y.2d 801 (1993) ................................................................................................... 39 People v. Gonzalez, 293 N.Y. 259 (1994) ..................................................................................................... 27 People v. Hagedorny, 272 A.D. 830 (N.Y. App. Div. 2d Dep’t 1947) ....................................................... 43-44 People v. Ippolito, 20 N.Y.3d 615 (2013) ................................................................................................... 39 People v. Jones, 73 N.Y.2d 427 (1989) ..................................................................................................... 5 People v. Kadarko, 14 N.Y.3d 426 (2010) ................................................................................................... 39 People v. Karamanites, 104 A.D.2d 899 (N.Y. App. Div. 2d Dep’t 1984) ........................................................ 47 TABLE OF AUTHORITIES (continued) Page(s) -iii- People v. Kisoon, 8 N.Y.3d 129 (2007) .................................................................................... 27-28, 41-42 People v. Lindsay, 42 N.Y.2d 9 (1977) ....................................................................................................... 44 People v. Lourido, 70 N.Y.2d 428 (1987) .............................................................................................. 31-32 People v. Mack, 117 A.D.3d 1450 (N.Y. App. Div. 4th Dep’t 2014) ..................................................... 25 People v. Malloy, 55 N.Y.2d 296 (1982) ................................................................................................... 27 People v. Oathout, 21 N.Y.3d 127 (2013) ................................................................................................... 56 People v. O’Rama, 78 N.Y.2d 270 (1991) ............................................................................................ passim People v. Perkins, 15 N.Y.3d 200 (2010) ................................................................................................... 44 People v. Porco 30 A.D.3d 543 (N.Y. App. Div. 2d Dep’t 2006) .......................................................... 51 People v. Rivera, 23 N.Y.3d 827 (2014) ........................................................................................ 28, 38-39 People v. Santi, 3 N.Y.3d 234 (2004) ..................................................................................................... 27 People v. Silva, Nos. 208, 209, 2014 N.Y. LEXIS 3345 ...................................................... 26, 28, 30, 35 People v. Smith, 62 A.D.2d 1043 (N.Y. App. Div. 2d Dep’t 1978) .......................................................... 5 People v. Sorrell, 108 A.D.3d 787 (N.Y. App. Div. 3d Dep’t 2013) ........................................................ 31 TABLE OF AUTHORITIES (continued) Page(s) -iv- People v. Starling, 85 N.Y.2d 509 (1995) .....................................................................................................39 People v. Trowbridge, 305 N.Y. 471 (1953) ................................................................................................. 46-47 People v. Turner, 5 N.Y.3d 476 (2005) .......................................................................................................40 People v. Valerio, 141 A.D.2d 585 (N.Y. App. Div. 2d Dep’t 1988) ..........................................................33 People v. Walston, 23 N.Y.3d 986 (2014) ...............................................................................................36, 37 People v. Weinberg, 83 N.Y.2d 262 (1994) ................................................................................................... 27 People v. Wilder, 93 N.Y.2d 352 (1999) ................................................................................................... 48 People v. Winston, 134 A.D.2d 546 (N.Y. App. Div. 2d Dep’t 1987) ........................................................ 47 People v. Wrotten, 60 A.D.3d 165 (N.Y. App. Div. 1st Dep’t 2008) .......................................................... 36 Persky v. Bank of Am. Nat’l Ass’n, 261 N.Y. 212 (1933) ..................................................................................................... 36 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES U.S. CONST. amend. VI ............................................................................................................. 40 N.Y. CONST. art. I, § 6 .............................................................................................................. 40 N.Y. C.P.L. § 230.20 ............................................................................................................... 50 N.Y. C.P.L. § 310.30 ........................................................................................................ passim N.Y. C.P.L. § 330.30 ................................................................................................................ 24 N.Y. C.P.L. § 470.35 ..................................................................................................... 36, 39-40 TABLE OF AUTHORITIES (continued) Page(s) -v- N.Y. PENAL LAW § 120.07 .......................................................................................................... 9 OTHER AUTHORITIES Arthur Krager, THE POWERS OF THE NEW YORK COURT OF APPEALS (3d ed. 2005) ................................................................................................................ 36 Transcript of Oral Argument, People v. Silva, Nos. 208, 209, 2014 N.Y. LEXIS 3345 (Nov. 24, 2014) ............................................. 30 Claudia Vargas, Witnesses to Slaying Sought, DEMOCRAT & CHRONICLE (Oct. 1, 2007) ....................................................................... 6 Greg Livadas & Claudia Vargas, We Are in a Crisis, DEMOCRAT & CHRONICLE (Oct. 2, 2007) ............................................................... 5, 6, 7 Nicole Lee, Prayer Service Targets Violence, DEMOCRAT & CHRONICLE (Oct. 4, 2007) ....................................................................... 6 Nicole Lee, Prayer Service Includes Call for Peace, DEMOCRAT & CHRONICLE (Oct. 5. 2007) ...................................................................... 6 Claudia Vargas, Victim Remembered as Ever-Smiling Face, DEMOCRAT & CHRONICLE (Oct. 6, 2007) ......................................................... 5, 6, 7, 49 Mark Hare, Latasha Shaw’s Killing Is a Symptom of a Sickness, DEMOCRAT & CHRONICLE (Oct. 7, 2007) ....................................................................... 6 News Beat, UR Has Vigil for Slain Woman, DEMOCRAT & CHRONICLE (Oct. 11, 2007) ..................................................................... 6 Steve Orr & Claudia Vargas, Murder by a Mob: Attacked with Sticks, Hammers and Knives, DEMOCRAT & CHRONICLE (Oct. 28, 2007) ............................................................... 6, 49 Opinion, Citizens Rallying, DEMOCRAT & CHRONICLE (Nov. 1, 2007) ............................................................ 5, 6, 49 Brian Sharp, McFadden Pledges to Guard Witnesses, DEMOCRAT & CHRONICLE (Nov. 13, 2007) .................................................................... 6 Mark Hare, Insisting on Justice, No Matter How Long it Takes, DEMOCRAT & CHRONICLE (Dec. 2, 2007) ....................................................................... 6 Bennett J. Loudon, Award Honors Slain Woman, DEMOCRAT & CHRONICLE (Dec. 17, 2007) ..................................................................... 6 Stephanie Veale, Somebody Out There Knows Who Killed Latasha Shaw, DEMOCRAT & CHRONICLE (Dec. 20, 2007) ..................................................................... 6 TABLE OF AUTHORITIES (continued) Page(s) -vi- Opinion, The Faces of Homicide, DEMOCRAT & CHRONICLE (Jan. 2, 2008) ........................................................................ 6 Alan Morrell, Lens Focuses in on Life and Loss in Rochester, DEMOCRAT & CHRONICLE (Jan. 16, 2008) ...................................................................... 6 Stephanie Veale, No Arrests in Teen Murders, DEMOCRAT & CHRONICLE (Mar. 24, 2008) ................................................................... 6 Claudia Vargas, Police Puzzled by Latest Slaying, DEMOCRAT & CHRONICLE (Mar. 27, 2008) .................................................................... 6 Opinion, Standing Tall, DEMOCRAT & CHRONICLE (June 13, 2008) ..................................................................... 6 Claudia Vargas, Fatal Stabbing by Mob Still Haunts Rochester, DEMOCRAT & CHRONICLE (Sept. 26, 2008) .......................................................... 6, 7, 49 Alan Morrell, Slain Mom Remembered, DEMOCRAT & CHRONICLE (Sept. 30, 2008) .......................................................... 6, 7, 49 Opinion, Too Little Progress, DEMOCRAT & CHRONICLE (Sept. 30, 2008) .................................................................... 6 David Moore, Police Chief, Keep Politics Out of City Police Probes, DEMOCRAT & CHRONICLE (Oct. 2, 2008) ....................................................................... 7 Adam McFadden, Official’s Duty Is to Aid Murder Probe, DEMOCRAT & CHRONICLE (Oct. 3, 2008) ....................................................................... 7 Claudia Vargas & Victoria Freile, Arrest Made in Shaw Slaying, DEMOCRAT & CHRONICLE (Nov. 6, 2008) ................................................................ 8, 49 Opinion, Solid Police Work, DEMOCRAT & CHRONICLE (Nov. 7, 2008) ...................................................................... 8 Claudia Vargas & Victoria Freile, New Arrest in Stabbing Case, DEMOCRAT & CHRONICLE (Nov. 7, 2008) ................................................................ 8, 49 Michael Zeigler, Two Cousins Indicted in Slaying of City Mom, DEMOCRAT & CHRONICLE (Nov. 11, 2008) .................................................................... 8 Michael Zeigler, Elmira Man Indicted in Fatal Stabbing of Rochester Woman, DEMOCRAT & CHRONICLE (Nov. 11, 2008) .................................................................... 8 Michael Zeigler, Two Indicted in Shaw Slaying, DEMOCRAT & CHRONICLE (Nov. 26, 2008) .................................................................... 8 Michael Zeigler, Cousins Deny Attacking Shaw, DEMOCRAT & CHRONICLE (Dec. 3, 2008) ...................................................................... 8 Michael Zeigler, ID Offer May Free Suspect in Shaw Slaying, DEMOCRAT & CHRONICLE (Apr. 10, 2009) ..................................................................... 8 QUESTIONS PRESENTED 1. Did the trial court commit reversible error when it failed to provide meaningful notice or a response to three substantive jury requests regarding the meaning of reasonable doubt, the importance of a single witness in a case, and a readback of that single witness’s testimony? Answer of the trial court: Not addressed. Answer of the Appellate Division: Yes. The Appellate Division held that the court’s failure to provide a response to the jury’s three substantive requests constituted a mode of proceedings error. The Appellate Division held that the failure to respond to the two requests for instructions of law seriously prejudiced Mr. Mack, and required reversal. The Appellate Division did not address whether meaningful notice of the notes was provided. 2. Should the trial court’s judgment be reversed due to the ineffective assistance of counsel provided to defendant at trial when defense counsel (i) failed to request a response to the outstanding jury requests before delivery of the verdict, (ii) opened the door, and then failed to object, to inadmissible identification testimony and evidence, and (iii) failed to seek an unbiased jury? Answer of the trial court: Not addressed. Answer of the Appellate Division. No. The Appellate Division reversed the trial court on the basis of the mode of proceedings error, and did not accept defendant’s remaining arguments. While the Appellate Division considered Mr. Mack’s ineffective of assistance of counsel claim, it did not consider the precise ground that counsel’s representation was defective for failure to seek an unbiased jury. -2- PRELIMINARY STATEMENT In September 2007, a fight broke out in Rochester, New York, during which Latasha Shaw was killed. Ms. Shaw’s death became a feature of news coverage, as did the community’s call for someone to be held accountable. For thirteen months, the celebration of Ms. Shaw’s legacy and the community’s demand for an arrest were broadcast through vigils, marches, news coverage, and addresses by public officials. In October 2008, the public cries for an arrest were answered as Terrance Mack was taken into custody on charges of gang assault. News of Mr. Mack’s arrest, the facts alleged, and his history were covered in Rochester media. In May 2009, Mr. Mack stood trial for gang assault in the first degree in a proceeding that violated the fundamental requirements of procedural fairness and Mr. Mack’s right to meaningful representation. The jury verdict delivered at Mr. Mack’s trial cannot stand. Due to the constitutionally deficient representation provided Mr. Mack at trial, the jury included individuals who had been exposed to the news coverage of Ms. Shaw’s death and Mr. Mack’s case, at least one of whom was never asked to confirm that she could evaluate the evidence without the bias potentially infected by that press coverage. Moreover, again due to the ineffective assistance of Mr. Mack’s counsel, -3- the jury was exposed throughout trial to improper and prejudicial identification evidence. Finally, the jury delivered its verdict despite having open questions that went unanswered by the trial court. These questions went to the core factual and legal matters at issue in Mr. Mack’s case. On a Friday evening, after deliberating for nearly six hours, and while it was trying to work through a deadlock, the jury requested from the court an instruction on the meaning of reasonable doubt, a readback of the testimony of the single eye-witness who identified Mr. Mack at the scene of the incident, and an instruction on the extent to which the jury could rely on that witness’s testimony. Unbeknownst to the jury, the judge had left the bench for a 108-minute dinner break. After waiting 94 minutes for an instruction on its questions of law, and 75 minutes for the requested eye-witness’s testimony, the jury delivered its verdict. The court never responded to the jury’s requests, advised counsel how long the jury had been waiting for a response to those critical questions, acknowledged the requests in the presence of the jury, or asked whether the requested information was still needed. For all of these reasons, the decision of the Appellate Division should be upheld and the trial court order should be reversed. This relief is grounded in the well-settled law of this Court. For more than two decades, this Court has consistently held that, when faced with a substantive jury question, courts must -4- provide meaningful notice and a meaningful response. Failure to provide notice of or a response to a substantive jury question so compromises the fundamental fairness of a trial that it constitutes reversible error that need not be preserved. Because the trial court here failed to provide either meaningful notice or a response to the three substantive jury requests, its order must be reversed. Alternatively, this Court may affirm the Appellate Division’s decision on the basis of the categorically ineffective representation provided to Mr. Mack by his trial counsel. Counsel’s failure to object to the taking of the verdict despite the outstanding jury notes, opening the door and later failing to object to inadmissible identification testimony and evidence, and failure to seek an unbiased jury deprived Mr. Mack of the meaningful representation to which he is constitutionally entitled. For all of these reasons, the trial court’s order should be reversed. Mr. Mack should be awarded the relief afforded by the Appellate Division, to which he is entitled under the relevant law, and for which he has waited, in prison, for more than five and a half years. * * * -5- STATEMENT OF FACTS On September 29, 2007, a fight took place in Rochester, New York, at approximately 7:30 pm, reportedly involving as many as 20-30 people. During this fight, Latasha Shaw was killed. Two days after Ms. Shaw’s death, more than 600 people gathered near the site of the fight for a rally to “take back the community.”1 Crowds of people drew together again for Ms. Shaw’s funeral, at which many speeches were given, including by city officials and the Mayor of Rochester. 2 For weeks after Ms. Shaw’s death, “nightly citizen marches” were held to encourage residents to cooperate with police to assist in making arrests.3 Three months after Ms. Shaw’s 1 Greg Livadas & Claudia Vargas, We Are in a Crisis, DEMOCRAT & CHRONICLE, Oct. 2, 2007, at 1A. (SA 499-502) While the cited newspaper articles were not raised in the trial court or in front of the Appellate Division, this court may take judicial notice of the fact of their publication. See People v. Jones, 73 N.Y.2d 427, 431-32 (1989) (“To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.” (internal quotation marks and citations omitted)); People v. Smith, 62 A.D.2d 1043, 1043 (N.Y. App. Div. 2d Dep’t 1978) (citing Hunter v. N.Y., Ont. & W. R.R. Co., 116 N.Y. 615 (1889)). In New York, “[t]he court may take judicial notice of newspaper publications.” Grebow v. City of New York, 173 Misc. 2d 473, 479 (N.Y. Sup. Ct. N.Y. Cnty. 1997). In any event, the record is clear that the September 29 incident received “a lot of media attention,” including newspaper articles, television coverage, and commentary by public officials. (SA 252); see also (SA 194) (court noting the “extensive publicity in the matter”) 2 Claudia Vargas, Victim Remembered as Ever-Smiling Face, DEMOCRAT & CHRONICLE, Oct. 6, 2007, at 1B. (SA 507-09) 3 Opinion, Citizens Rallying, DEMOCRAT & CHRONICLE, Nov. 1, 2007, at A8. (SA 523-24) -6- death, the Police Chief held a news conference where he reported that no arrests had been made.4 Throughout the year following the September 29 incident, a local newspaper published at least 20 pieces discussing Ms. Shaw’s death and emphasizing the fact that no arrests had been made.5 As noted by the People at trial, the incident received “a lot of media attention” and “[t]here were a lot of accounts in the paper, a lot of accounts on television . . . . [and a] lot of public officials [spoke] about the case.” (SA 252); see also (A 375-76) (testimony that the incident was reported on an Elmira television station) Many of these media 4 Stephanie Veale, Somebody Out There Knows Who Killed Latasha Shaw, DEMOCRAT & CHRONICLE, Dec. 20, 2007, at 1A. (SA 532-33) 5 Claudia Vargas, Witnesses to Slaying Sought, DEMOCRAT & CHRONICLE, Oct. 1, 2007, at 1B (SA 496-98); Livadas & Vargas, supra note 1; Nicole Lee, Prayer Service Targets Violence, DEMOCRAT & CHRONICLE, Oct. 4, 2007, at B3 (SA 503-04); Nicole Lee, Prayer Service Includes Call for Peace, DEMOCRAT & CHRONICLE, Oct. 5. 2007, at B3 (SA 505-06); Vargas, supra note 2; Mark Hare, Latasha Shaw’s Killing Is a Symptom of a Sickness, DEMOCRAT & CHRONICLE, Oct. 7, 2007, at B1 (SA 510-12); News Beat, UR Has Vigil for Slain Woman, DEMOCRAT & CHRONICLE, Oct. 11, 2007, at B1 (SA 513-14); Steve Orr & Claudia Vargas, Murder by a Mob: Attacked with Sticks, Hammers and Knives, DEMOCRAT & CHRONICLE, Oct. 28, 2007, at 1A (SA 515-22); Opinion, Citizens Rallying, supra note 3; Brian Sharp, McFadden Pledges to Guard Witnesses, DEMOCRAT & CHRONICLE, Nov. 13, 2008, at 1A (SA 525-26); Mark Hare, Insisting on Justice, No Matter How Long it Takes, DEMOCRAT & CHRONICLE, Dec. 2, 2007, at B1 (SA 527-29); Bennett J. Loudon, Award Honors Slain Woman, DEMOCRAT & CHRONICLE, Dec. 17, 2007, at B1 (SA 530-31); Veale, supra note 4; Opinion, The Faces of Homicide, DEMOCRAT & CHRONICLE, Jan. 2, 2008, at A6 (SA 534-35); Alan Morrell, Lens Focuses in on Life and Loss in Rochester, DEMOCRAT & CHRONICLE, Jan. 16, 2008, at B1 (SA 536-37); Stephanie Veale, No Arrests in Teen Murders, DEMOCRAT & CHRONICLE, Mar. 24, 2008, at B1 (SA 538-39); Claudia Vargas, Police Puzzled by Latest Slaying, DEMOCRAT & CHRONICLE, Mar. 27, 2008, at 1B (SA 540-42); Opinion, Standing Tall, DEMOCRAT & CHRONICLE, June 13, 2008, at A12 (SA 543-44); Claudia Vargas, Fatal Stabbing by Mob Still Haunts Rochester, DEMOCRAT & CHRONICLE, Sept. 26, 2008, at 1A (SA 545-48); Alan Morrell, Slain Mom Remembered, DEMOCRAT & CHRONICLE, Sept. 30, 2008, at 1B (SA 549-50); Opinion, Too Little Progress, DEMOCRAT & CHRONICLE, Sept. 30, 2008, at A10 (SA 551-52). -7- accounts celebrated Ms. Shaw’s life as a mother, union leader, and beloved member of the community.6 On the one-year anniversary of Ms. Shaw’s death, approximately 300 people gathered to honor Ms. Shaw, many expressing frustration that the police had made no arrests. 7 At that rally, Rochester Councilman Adam McFadden announced that he had written a letter to the State Attorney General’s Office, pleading for help with the investigation into Ms. Shaw’s death. 8 In an essay published in a local newspaper shortly after the rally, Mr. McFadden stated that he would continue to speak out until “Ms. Shaw’s killers are arrested, convicted and incarcerated . . . . We owe it to Ms. Shaw, her family and all law-abiding Rochester citizens to bring the murderers to justice.”9 David Moore, Rochester Police Chief, also published an essay after the rally, writing to the community to assure them that Ms. Shaw’s case would be solved through the police’s “long, hard hours of investigation and in building a solid case to hand to the district attorney.”10 6 See, e.g., Livadas & Vargas, supra note 1; Vargas, supra note 2; Vargas, Fatal Stabbing by Mob Still Haunts Rochester, supra note 5. 7 Morrell, Slain Mom Remembered, supra note 5. 8 Id. 9 Adam McFadden, Official’s Duty Is to Aid Murder Probe, DEMOCRAT & CHRONICLE, Oct. 3, 2008, at A13. (SA 555-57) 10 David Moore, Police Chief, Keep Politics Out of City Police Probes, DEMOCRAT & CHRONICLE, Oct. 2, 2008, at A9. (SA 553-54) -8- A month later, which was thirteen months after the September 29, 2007 incident, Mr. Mack and another individual were arrested. (SA 6-7) Upon the announcement of the arrests, a local newspaper published a piece stating that, with the arrests, “[a] huge sigh of relief could be heard throughout the Rochester region.” 11 Certain articles referenced statements by law enforcement officials attributing the arrests to “good old-fashioned police work” and touting the police’s efforts to sort through extensive evidence and information in advance of the arrests.12 The press also covered Mr. Mack’s indictment and pre-trial proceedings. 13 That coverage included descriptions of the charge against 11 Opinion, Solid Police Work, DEMOCRAT & CHRONICLE, Nov. 7, 2008, at A10 (describing Shaw’s stabbing, noting that the Police Chief insisted all along that “the killer would be found,” and stating that, while the suspects are innocent until proven guilty, the Police Chief “has insisted for months that he didn’t want to risk arresting suspects prematurely, resulting in their release”). (SA 561-62) 12 Claudia Vargas & Victoria Freile, New Arrest in Stabbing Case, DEMOCRAT & CHRONICLE, Nov. 7, 2008, at 1A (noting law enforcement officials’ comments that police had been working on the investigation leading to the arrests for a while, that “police officers had many piles of information that had to be sorted through,” and that arrests must be based on “facts, evidence and witnesses”) (SA 563-65); Michael Zeigler, Two Cousins Indicted in Slaying of City Mom, DEMOCRAT & CHRONICLE, Nov. 11, 2008, at B3 (noting that the Police Chief credited “‘good old-fashioned police work’ for the arrests”). (SA 566-67) 13 See, e.g., Claudia Vargas & Victoria Freile, Arrest Made in Shaw Slaying, DEMOCRAT & CHRONICLE, Nov. 6, 2008, at 1B (noting that Mr. Mack was accused of striking Ms. Shaw with a bottle) (SA 558-60); Michael Ziegler, Elmira Man Indicted in Fatal Stabbing of Rochester Woman, DEMOCRAT & CHRONICLE, Nov. 11, 2008, at C2 (SA 568-69); Michael Zeigler, Two Indicted in Shaw Slaying, DEMOCRAT & CHRONICLE, Nov. 26, 2008, at B3 (SA 570-71); Michael Zeigler, Cousins Deny Attacking Shaw, DEMOCRAT & CHRONICLE, Dec. 3, 2008, at B1 (noting Mr. Mack’s “two previous criminal convictions for selling drugs and illegally possessing a weapon”) (SA 572-74); Michael Zeigler, ID Offer May Free Suspect in Shaw Slaying, DEMOCRAT & CHRONICLE, Apr. 10, 2009, at 1B. (SA 575-76) -9- Mr. Mack, the underlying facts alleged, and information regarding Mr. Mack’s two prior convictions for drug possession and possession of a weapon.14 Mr. Mack stood trial from May 4, 2009 through May 8, 2009, for a charge of gang assault in the first degree under N.Y. Penal Law § 120.07 before the Honorable Frank P. Geraci, Jr., in Monroe County Court in Rochester, New York. (SA 577) The record indicates that press coverage continued throughout the trial by local newspapers, television stations, and radio stations. (A 114-15) From his arrest more than a year after the incident, when he waived his Miranda rights and voluntarily spoke with the police, through his volunteering to stand for a line-up the month before trial, through the present, Mr. Mack has unequivocally asserted his innocence. (SA 6-7, 143) A description of relevant portions of the trial and related proceedings follows. Jury Selection Not surprisingly, many prospective jurors were well aware of the circumstances of Ms. Shaw’s death through media coverage. During jury selection, the court and the People asked the pool of prospective jurors generally to indicate if any juror had heard or knew anything about the case. (SA 195, 198-99, 219, 252-53, 278, 295-96, 338) Eleven prospective jurors15 expressly stated that they 14 See supra note 3. 15 (SA 209); (SA 213-15); (SA 215-16); (SA 252); (SA 252-53); (SA 282); Redacted Redacted Redacted Redacted Redacted Redacted Redacted -10- had prior knowledge of the case through press reports, with at least three prospective jurors noting that there had been press coverage that very morning (SA 282, 296, 302-03). The record indicates that other prospective jurors may have had prior knowledge as well: after noting that the September 29 incident had received significant media attention, the People asked “Are bells going off for anyone else? A few people are nodding.” The record does not indicate who, or how many people, nodded. (SA 253) It seems, based on the People’s comments on the record, that at least Juror nodded in response to the question, making it, at a minimum, twelve prospective jurors with prior media exposure to the case. (SA 253) Of the twelve prospective jurors with prior knowledge of the case, four were selected to sit on the jury. (SA 357) These four jurors made varying statements as to their level of exposure to press regarding the case and whether they could evaluate the evidence without bias.  Juror said that she had heard about the case on television and in the paper, and heard about Mr. Mack in particular. (SA 213-14) The Court and the People questioned Juror about whether she could disregard what she had heard about the case and be (SA 296); (SA 298); (SA 299-300); (SA 301); (SA 302-03). Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted -11- fair to Mr. Mack, and she said she could. (SA 213-14) When prompted by the Court, defense counsel stated that he had no questions for Juror on this issue. (SA 214)  Juror stated that she had heard through press coverage about Ms. Shaw being “beaten,” and was “sad that it happened to her.” (SA 301) Juror was questioned by the Court about whether she could put aside what she heard and be fair, and she said yes. (SA 302) When prompted by the Court, defense counsel stated that he had no questions for Juror on this issue. (SA 302)  As noted, Juror appears to have nodded his head when asked if he knew about the case. (SA 253) The People put a broad question to the jury generally about whether they could put aside what they heard on television and then asked, “ , are you okay with that?” He replied, “yes.” (SA 253) Defense counsel asked no questions of regarding the specifics of his exposure or whether he could evaluate the evidence without bias.  Juror said she was familiar with the incident from the news. (SA 252) Juror was not asked a single question by the Court, the People or defense counsel regarding the specifics of her knowledge of the Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted -12- incident. Moreover, Juror was never asked if she could put aside what she had heard in the media and be unbiased. Ultimately, no jurors—prospective or chosen—were questioned by defense counsel on the issue of media exposure, and defense counsel did not move to strike for cause any jurors who expressed prior knowledge about the case. (SA 274-75, 352) During the course of jury selection, the court indicated that it expected the jurors to complete their service by Friday. (T 28, T 122 (stating that a juror scheduled to travel on Sunday could serve because “we will be done by Friday”)) The People also noted to the jury, in response to a comment regarding a juror’s Sunday scheduling conflict, that, while it was possible the jurors could be required to serve for longer, “we are anticipating that it will conclude this week by Friday.” (SA 259-60) Further, at the start of jury selection (SA 200), and later in the jury charge (SA 579), the court noted the possibility that the jury could be sequestered once it began its deliberations. The day after the jury was selected, trial proceedings began. (SA 366) Megan Torres’s Trial Testimony At trial, the People presented no physical evidence linking Mr. Mack to the September 29, 2007 incident. Despite police testimony that there were potentially one hundred eye witnesses at the scene of the incident (A 413-14), the Redacted -13- People presented a single eye witness, Megan Torres, who identified Mr. Mack as having been involved (A 143). Notably, on the night of the incident, Ms. Torres told a police investigator that she could not identify any of the participants. (A 158) It was not until nearly a month later that she contacted the police regarding the incident. (A 163) The police met with Ms. Torres on October 24, 2007, and showed her six photo arrays. (A 219) One photo array contained a picture of Mr. Mack, whom Ms. Torres identified as being involved in the fight on September 29. (A 160, 190) At trial, Ms. Torres testified that she saw someone she believed to be Mr. Mack at the location of the incident at around noon that day and then saw him involved in the fight at approximately 7:30 pm, during which time she claimed he hit Ms. Shaw on the head with a bottle. (A 144, 171-72) When pressed on cross- examination, Ms. Torres did not dispute that her story had changed: she testified that she initially told police that Ms. Shaw was hit on the head by an unidentifiable female; that she later told the Grand Jury that it was a male—Mr. Mack—who hit Ms. Shaw on the head; and that, at trial, she claimed that there was both a male and a female who struck Ms. Shaw on the head with a bottle. (A 161-62) Ms. Torres further testified that the bottle shattered (A 160-61) While one other witness for the People testified to seeing broken glass (A 61), the responding police officer did not recall seeing broken glass (A 84), no broken glass -14- was identified at the scene of the incident by the civilian evidence collection technicians (A 113-14) or the police evidence technician (A 129), and no glass was found on Ms. Shaw (A 291-92). Ms. Torres further testified that it was getting dark at the time of the incident and that she was 150 feet from the incident as it occurred. (A 164) Finally, Ms. Torres testified that Ms. Shaw was her friend’s mother’s best friend. (A 150) Testimony Regarding the Photo Identification There was substantial discussion at trial regarding Ms. Torres’s prior identification of Mr. Mack through a photo array. In advance of trial, defense counsel made a motion to preclude any in-court identification of Mr. Mack by Ms. Torres. (SA 23) Defense counsel argued that the initial photo array presented to Ms. Torres was “unnecessarily and unduly suggestive,” and thus any in-court identification flowing from that photo array should be suppressed. (SA 23) The trial court held a hearing on the matter, during which John Penkitis, a police investigator for the Rochester Police Department, was questioned on his presentation of the photo array to Ms. Torres. (SA 146-73) At the hearing, Mr. Penkitis testified that Ms. Torres circled the number above Mr. Mack’s picture on the photo array and wrote her initials next to it. (SA 159) Mr. Penkitis further testified that Ms. Torres said “That’s the guy,” which Mr. Penkitis wrote on the lower right-hand corner of the array. (SA 159) After hearing Mr. Penkitis’s -15- testimony and arguments from defense counsel and the People, the court denied the motion to suppress. (SA 178) Despite his pre-trial motion arguing that the photo array was unduly suggestive, defense counsel opened the door at trial to testimony regarding the photo identification. When cross-examining Ms. Torres, defense counsel asked about Ms. Torres’s communications with the police investigators, asking in particular if they had shown her pictures, and prompting her to confirm that she had identified Mr. Mack in those pictures. (A 160) After defense counsel’s questioning of Ms. Torres, the People confirmed on the record that defense counsel had opened the door to questioning Ms. Torres regarding the photo array identification. (A 182) The People then proceeded to question Ms. Torres regarding the identification, including by asking her to confirm that she had identified Mr. Mack out of approximately six pictures, and that it was the same person whom she identified in court that day. (A 189-90) Defense counsel again questioned Ms. Torres regarding her identification of Mr. Mack in the photo array on his re-cross-examination. (A 198) During this re-cross-examination, Ms. Torres testified that Mr. Mack was the only person she identified through the photo array process. (A 198) Mr. Penkitis was then called to testify by both the People and defense counsel regarding Ms. Torres’s photo identification of Mr. Mack. (A 214, -16- 396) During the course of questioning Mr. Penkitis on direct examination, the People moved to enter as an exhibit the photo array through which Mr. Mack was identified. (A 222) Defense counsel stated that he had “no objection” to admission of the photo array into evidence. (A 222) Aside from testifying to the procedure for the photo identification, Mr. Penkitis testified that Ms. Torres viewed five other photo arrays of six pictures each. (A 219) In response to questions on cross-examination by the People, Mr. Penkitis further confirmed that Mr. Mack was “developed as a suspect during the course of [Mr. Penkitis’s] investigation and [his] conversations with seventy-five to one hundred people.” (A 417) Remaining Witnesses for the People In addition to Ms. Torres, the People presented two eyewitnesses from the scene of the incident: Charnette Grayson (Ms. Shaw’s sister) and (Ms. Shaw’s daughter). Neither Ms. Grayson nor identified Mr. Mack at the scene. In fact, testified that, standing only twelve feet away, she saw only females involved in the altercation. (A 19-21, 25) The People also presented Rolando Donald, who was at the time of the trial incarcerated and seeking a “violent felony override” to reduce his prison sentence based on his testimony. (A 227-28, 240) He testified to being high school friends with Ms. Shaw’s brother and aware of Mr. Mack’s arrest relating to Redacted Redacted Redacted -17- the September 29 incident through media reports. (A 242-43) Mr. Donald testified that he had not seen Mr. Mack for two years until they encountered each other in the reception area of the Monroe County jail on April 22, 2009. (A 229, 243-44) Mr. Donald testified that, on that date, which was two weeks before Mr. Mack’s trial—and, notably, the day after Mr. Donald was sentenced to five years in prison for robbery in the first degree—Mr. Mack told him that he had been involved in the September 29 incident. (A 224-50) The People did not introduce any audio recording of the conversation, and Mr. Mack testified that he did not tell Mr. Donald any such thing. (A 451-52) The People’s remaining witnesses were comprised of police, an investigator, a 911 operator, telephone company employees, and medical professionals largely discussing evidence of the incident—none of whom provided any testimony linking Mr. Mack to the scene of the incident. (R. Hickey, A 70-85; L. Janicki, A 85-114; G. Mac Cracken, A 116-34; M. Terrill, A 199-211; J. Penkitis, A 214-23, 396-419; J. Preston, A 250-68; C. Dignan, A 269-92; M.J. Evans, A 305-10; R. Siersma, A 310-18; C. Facteau, A 318-41) Witnesses for the Defense Mr. Mack testified in his defense that he was not at the scene of the incident in Rochester, New York, on September 29, 2007, but instead was in Elmira, New York. (A 448-49) Mr. Mack testified that he was watching his -18- daughter while his girlfriend, Jessica Smith, was working from 7:00 am to 7:30 pm. (A 448-49, 461, 471) Mr. Mack testified that he also went to a clothing store, spent time with his friend Christopher White, and visited his aunt, Precious Scott. (A 462-64, 472)16 Mr. Mack also said he believed, but was not sure, that he stopped by McDonald’s to pick up an employee uniform. (A 470-71) Elements of Mr. Mack’s testimony were corroborated by Ms. Smith, who testified that she worked from 6:57 am to 7:19 pm, and that Mr. Mack watched their daughter during that time. (A 384) Ms. Smith testified that, when she returned home at around 7:30 pm, Mr. Mack was home. (A 385) Ms. Scott also testified to seeing Mr. Mack on the date of the incident. She testified that Mr. Mack and “Travis” (presumably Christopher Travis White) visited her at her home in Elmira, New York, at around 11:00 am or 12:00 pm and brought her food from McDonald’s. (A 368) Ms. Scott further testified that she spoke with Mr. Mack during the course of the day, and that he was in Elmira, not in Rochester. (A 369) The defense additionally presented three witnesses to the September 29 incident in Rochester, New York: Kionna Speed, Carolyn Kenesha McHenry, 16 Mr. Mack also stated that he saw and spoke to “fiens” when he was out that day—which he described as people who deal drugs or smoke marijuana. (A 463) The People construed this in summation as Mr. Mack spending time with these individuals, though Mr. Mack did not say that in his testimony. (SA 393) -19- and , all of whom testified that Mr. Mack was not present at the scene. (A 347-50, 359-60, 420-21,428, 438-40) Closing Arguments and Jury Charge On May 8, 2009, the People and defense counsel made closing arguments to the jury. Each emphasized the photo identification by Ms. Torres. Defense counsel suggested that Ms. Torres had identified Mr. Mack because he was the only person in the array whom she recognized. (SA 374-75) The People noted that, reviewing six photo arrays containing pictures of 36 people in total, Ms. Torres identified Mr. Mack, saying “that’s the guy.” (SA 401) The People emphasized that this identification took place 25 days after the incident, while the in-court identification took place on May 5, 2009. (SA 401) The People added that Mr. Mack had been placed in the photo array after the police investigators knocked on doors, made phone calls, tried to find anyone with information, and interviewed 75-100 people. (SA 401) Additionally, of note, the People told the jury that Judge Geraci would soon instruct them on the law. The People noted that two of the “most important” instructions Judge Geraci would deliver were the instruction on reasonable doubt (SA 390) and the instruction on relying upon an identification in a one-witness case (SA 397). The People then reminded the jury three times that, if they could not remember what a witness said, they could have the testimony read back. (SA Redacted -20- 404-06) After closing arguments, the court delivered the jury charge, reminding the jury once again that they could have any testimony read back at their request and that, if they had any questions on the law, they should “simply ask, and [the court would] reread [its] instructions.” (A 525) Jury Deliberations At 12:30 pm on Friday, May 8, 2009, the jury began its deliberations. (A 527) At approximately 2:20 pm, the jury sent a note requesting (i) a cigarette break, (ii) all of Ms. Torres’s testimony, (iii) a 911 tape from Ms. Shaw’s cell phone, (iv) the direct testimony of Rolando Donald, (v) all of Charnette Grayson’s testimony, and (vi) the crime scene evidence of a bat. (A 528-29; SA 132) Within minutes,17 the court reconvened, read the note into the record, entered it as an exhibit, discussed it with counsel, and then brought out the jury. (A 528-29) The court then read the note again in the presence of the jury. (A 529-30) The court then advised the jury of the plan for the cigarette break, and directed the court reporter to read back the testimony of Ms. Torres, which the court reporter did. (A 530-31) 17 There seems to be some minor inconsistency between the time recorded by the jury and the court reporter here. The jury note indicates it was sent at 2:20 pm (SA 132), while the transcript indicates that the court reconvened in response to the note at 2:19 pm (A 528). Presumably, the inconsistency is due to the jury and the court reporter using different clocks. In any event, it is more than clear that the court reconvened immediately after receiving the note. -21- Following the reading of Ms. Torres’s testimony, the court took a brief recess. (A 531) During that recess, the jury sent a note “amend[ing]” its previous request for Mr. Donald’s testimony to request just the conversation between Mr. Donald and Mr. Mack regarding “why he was in custody and what happened in this situation,” and “rescind[ing]” its request for Ms. Grayson’s testimony. (A 531; SA 133) Within minutes, the court reconvened, read the note into the record, entered it as an exhibit, discussed it with counsel, and then brought out the jury. (A 531-32; SA 133) The court then read the note again in the presence of the jury. (A 533) The court then advised the jury that the testimony of Ms. Grayson would not be read back due to the rescission of the request and that the whole of Mr. Donald’s direct examination testimony would be read back. (A 533-34) The requested testimony was read by the court reporter, the requested 911 tape was played, the requested evidence of the bat was provided, and the requested cigarette break was provided. (A 534-35) They jury then went back into deliberations. (A 535) At 5:42 pm, the jury sent a note stating: “1. How late are we allowed to deliberate tonight? 2. What is protocol for a deadlock? Problem: We are deadlocked” (A 537; SA 135) -22- Once again, within minutes, the court reconvened, read the note into the record, entered it as an exhibit, discussed it with counsel, and then brought out the jury. (A 537-38) The court read the note again in the presence of the jury. (A 538-39) The court advised the jury that its verdict needed to be unanimous, and to reach a unanimous verdict, the jury needed to discuss the evidence, listen to one another, and give each other’s views careful consideration together with the evidence. (A 539) As to the question of the time limit, the court noted, “[T]here is no time limit. I don’t want you to feel there is a time limit for your deliberations. You need to give this case as much time as it needs.” (A 539-40) The court indicated that it would send in dinner menus and then the jury would resume deliberations. (A 539-40) At 6:02 pm, the jury resumed deliberations. (A 539-40) The court then took a 108-minute break without advising the jury that it would do so. (A 540) The court stated to counsel, but not the jury, that it did not intend to respond to any jury questions until after the break. (S 540) During the course of that break, the jury sent three notes that went unanswered:  At 6:20 pm, 18 minutes into resuming deliberations to resolve the deadlock, the jury sent a note requesting “instructions regarding the importance of a single witness in a case versus multiple witnesses and the instructions about the meaning of reasonable doubt read back to us.” (SA 136) -23-  Twenty-three minutes later, at 6:43 pm, the jury sent a note requesting to “hear Megan Torres testimony regarding Terrance Mack’s leaving of the crime scene” and “more jury request sheets.” (SA 137)  Four minutes later, at 6:47 pm, the jury sent a note requesting a cigarette break. (SA 138) At 7:51 pm, the court finally returned in session. (A 540) The court marked the notes as exhibits, read them into the record, and began discussing them with counsel. (A 540-42) The court did not expressly advise counsel of the timing of any of the jury’s notes. (A 540-42) At 7:54 pm, having waited 94 minutes for a response to its request for instructions on the meaning of reasonable doubt and the importance of a single witness in a case, and 75 minutes for a response on its request for Ms. Torres’s testimony, the jury sent a note indicating that it had reached a verdict. (SA 139; A 542-43) After receiving the jury note regarding a verdict, the court held an off- the-record discussion with counsel. (A 542) The court then marked the note as an exhibit and took a 16-minute recess before calling the jury into the courtroom. (A 542) The jury foreperson announced the verdict of guilty. (A 543-44) The court never read the unanswered notes into the record in the presence of the jury, questioned the jury about its notes, or provided a response to any of them. -24- Post-Trial Motion Following trial, defense counsel made a Motion to Set Aside and Vacate the Conviction under NY CPL 330.30. Defense counsel’s motion and the attached documents indicate that, on May 7, 2009, the day before the jury delivered its verdict in Mr. Mack’s case, Christopher Travis White was released from a shock incarceration facility in New York. (SA 112-13, 118-19, 125) Mr. White submitted a sworn statement indicating that, on May 9, 2009, he learned that Mr. Mack had been convicted, and he called Mr. Mack’s mother to say that— consistent with Mr. Mack’s and Ms. Scott’s statements at trial—he had been with Mr. Mack at the time of the incident and that Mr. Mack had been caring for his daughter that day in Elmira, New York. (SA 125; A 448-49, 464, 368) Mr. White was listed on a December 30, 2008 list of alibi witnesses submitted to the court by defense counsel. (SA 10-11) In the motion, defense counsel stated that, despite the efforts of a private investigator, Mr. White could not be located before trial. (SA 119) Defense counsel further stated in the motion that the verdict should be set aside because “the jury did not give this case its fair and complete consideration.” (SA 124) Working under an apparent misimpression of the timing of the jury requests, defense counsel stated that: “Approximately at 6:00 P.M., [the jury] indicated that they were deadlocked, and wanted to know how long they had -25- to deliberate and five minutes prior to sending a note out that they had a verdict, requested additional instruction on the law of reasonable doubt and single witness identification.” (SA 124) Defense counsel’s motion to set aside the verdict was denied by the court. (SA 413) Mr. Mack appealed to the Appellate Division, Fourth Department, which issued a 4-1 decision on May 2, 2014, reversing the judgment against Mr. Mack and granting a new trial. People v. Mack, 117 A.D.3d 1450 (N.Y. App. Div. 4th Dep’t 2014). The Appellate Division concluded that the court’s failure to respond to the three outstanding jury requests constituted a mode of proceedings error, and that Mr. Mack had been seriously prejudiced by at least the court’s failure to respond to the requests for instruction on the law. The court dismissed without comment Mr. Mack’s remaining arguments, including an argument that the assistance of his trial counsel was ineffective. Id. at 1451-52. 18 Justice 18 The People mischaracterize the Appellate Division’s decision as holding that failure to respond to the two requests for instruction on the law qualified as a mode of proceedings error, while the request for a readback of testimony did not, because the latter involved a factual question that the jury may have resolved on its own. (Appellant Br. at 1, 9) To the contrary, the Appellate Division expressly held that all three requests triggered the core requirements of NY CPL 310.30, and that failure to provide a meaningful response constituted a mode of proceedings error. Mack, 117 A.D.3d at 1451. The Appellate Division’s discussion of factual questions, as distinguished from legal ones, came in its consideration of whether Mr. Mack had suffered serious prejudice, which it concluded he had. Id. -26- Lindley dissented from the majority’s holding and granted the People leave to appeal to this Court. (R 4) * * * ARGUMENT Point I: This Court Should Affirm the Appellate Division’s Decision as the Trial Court’s Failure to Meet Its Core Responsibility Under NY CPL 310.30 Constituted a Mode of Proceedings Error In People v. O’Rama, 78 N.Y.2d 270, 276 (1991), this Court held that New York Criminal Procedure Law Section 310.30 (“NY CPL 310.30”), which governs requests for information during jury deliberations, imposes two duties on courts: the duty to provide meaningful notice of a substantive jury request and the duty to provide a meaningful response. Just last month, this Court unequivocally held that (1) both of these duties make up the “core responsibility” under NY CPL 310.30 and (2) failure to fulfil this core responsibility by neglecting either of these duties constitutes a mode of proceedings error for which preservation is not required. People v. Silva, Nos. 208, 209, 2014 N.Y. LEXIS 3345, at *3-4 (Nov. 24, 2014) (SA 491-95). Here, the court failed to meet either of those duties as it did not provide any response to the jury’s requests before accepting a verdict and did not carry out the proper notice procedures under O’Rama, including providing defense counsel with sufficiently meaningful notice of the timing of the jury requests. -27- A. The Trial Court Failed to Provide a Meaningful Response to the Jury’s Requests under NY CPL 310.30 NY CPL 310.30 defines three categories of jury requests to which trial courts must respond: requests “for further instruction or information with respect to the law,” requests “with respect to the content or substance of any trial evidence,” and requests “with respect to any other matter pertinent to the jury’s consideration of the case.” Trial courts have no discretion as to whether to answer such requests from the jury, even when the information requested by the jury was previously provided in the charge. People v. Santi, 3 N.Y.3d 234, 248 (2004) (noting that “[t]he court does not have discretion in deciding whether to respond” to a “jury’s request for clarification”). In People v. Gonzalez, this Court noted that responding to jury questions is a “positive and absolute” requirement, and “an integral part of the structure of an adequate trial.” 293 N.Y. 259, 263 (1944) (discussing the predecessor to NY CPL 310.30, section 427 of the Code of Criminal Procedure). Indeed, not only must courts respond to jury inquiries, but that response must be “meaningful.” People v. Weinberg, 83 N.Y.2d 262, 267-68 (1994) (“[A] trial court is obliged to respond meaningfully to the jury’s inquiries . . . .”); People v. Malloy, 55 N.Y.2d 296, 301-02 (1982). Providing a meaningful response to a jury inquiry is part of the court’s core responsibility under NY CPL 310.30. People v. Kisoon, 8 N.Y.3d 129, 134 (2007) (“As we made clear in People v. O’Rama, the trial court’s core -28- responsibility under [NY CPL 310.30] is both to give meaningful notice to counsel of the specific content of the jurors’ request . . . and to provide a meaningful response to the jury.”) (internal citations omitted); Silva, 2014 N.Y. LEXIS 3345, at *4; People v. Cruz, 14 N.Y.3d 814, 820 (2010) (Lippman, J., concurring). This Court has made clear that this core responsibility is so essential to the validity of the criminal process that a failure to discharge it qualifies as “a mode of proceedings error,” requiring a new trial, for which preservation is not required. Kisoon, 8 N.Y.3d at 135 (“Although we have recognized that some departures from the procedures outlined in O’Rama may be subject to rules of preservation . . . a failure to fulfil the court’s core responsibility is not.”); Silva, 2014 N.Y. LEXIS 3345, at *5 (“A trial court’s failure to fulfill the ‘core responsibility’ under O’Rama is treated as a mode of proceedings error.”). Indeed, while “[t]ypically, preservation is a prerequisite to . . . appellate review, . . . [i]n criminal cases, . . . [the Court has] long applied a ‘very narrow’ exception . . . with respect to a limited class of errors that go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.” People v. Rivera, 23 N.Y.3d 827, 831 (2014) (internal quotation marks and citations omitted). -29- Here, the jury made three substantive19 requests to which the court never responded: a request for a readback of the instructions regarding the meaning of reasonable doubt, a request for a readback of the instructions on the “importance of a single witness in a case,” and a request for the readback of Ms. Torres’s testimony regarding Mr. Mack’s “leaving of the crime scene.” (SA 136-37) The court was required under NY CPL 310.30 to provide meaningful responses to these requests but failed to do so. O’Rama, 78 N.Y.2d at 276. This failure constitutes a mode of proceedings error, for which no preservation was required. Id. at 279. On this basis, this Court should affirm the Appellate Division’s grant of a new trial. B. The Jury Did Not Withdraw Its Requests The People argue that courts may be relieved of the core responsibility under O’Rama to provide a meaningful response to a jury request where a jury “impliedly” withdraws an outstanding request by announcing a verdict. (Appellant Br. at 7-10) This Court has never recognized any such exception to O’Rama. To the contrary, last month, this Court considered and rejected such an argument. 19 The jury also requested a cigarette break, which would likely be deemed under the case law as a “ministerial” request, not covered by the three categories of requests to which courts must respond under NY CPL 310.30. See People v. Bonaparte, 78 N.Y.2d 26, 30-31 (1991). -30- In People v. Silva, the New York County and Kings County District Attorney’s Offices argued that, where two separate juries had issued requests and then returned verdicts approximately an hour later, the earlier requests were withdrawn and O’Rama should not apply. Transcript of Oral Argument, Silva, 2014 N.Y. LEXIS 3345 (SA 428-90). This Court rejected that argument, applying O’Rama and finding a mode of proceedings error based on the trial courts’ failure to affirmatively acknowledge or respond to the jury requests. Silva, 2014 N.Y. LEXIS 3345, at *5-7. The People’s argument here should likewise be rejected.20 Even if this Court were to apply the standard urged by the People, affirmance of the Appellate Division’s decision is nevertheless appropriate. The People cite to, or rely upon cases citing to, People v. Lourido, 70 N.Y.2d 428 (1987) and People v. Agosto, 73 N.Y.2d 963 (1989), which held that failure to respond to a jury note requires reversal only where the defendant suffered serious prejudice. In Silva, this Court held that the serious prejudice standard in relation to jury note questions was no longer applicable after O’Rama. Silva, 2014 N.Y. LEXIS 3345, at *6 n.1 (“Nor are we persuaded by the dissent’s reliance on pre- O’Rama cases that imposed a ‘serious prejudice’ requirement.” (citing Agosto, 73 20 Moreover, there is no basis on this record to assume that, had the jury wished to rescind its prior requests, it would have done so implicitly. Here, the jury expressly rescinded an earlier request for a readback of Charnette Grayson’s testimony. (SA 133) Thus, had the jury wished to rescind the unanswered notes, the record suggests that it knew how to do so explicitly. -31- N.Y.2d at 966 and Lourido 70 N.Y.2d at 435)). Even under a serious prejudice standard, however, reversal of the trial court verdict is warranted here. In the cases relied upon by the People, the question of serious prejudice centered on whether the delay in responding to the unanswered note may have pressured the jury into delivering a verdict. See People v. Albanese, 45 A.D.3d 691, 692 (N.Y. App. Div. 2d Dep’t 2007) (considering whether there was “undue delay” in responding to the jury note and whether the verdict was the result of “any error or perceived pressure on the court’s part”); People v. Sorrell, 108 A.D.3d 787, 793 (N.Y. App. Div. 3d Dep’t 2013) (considering whether the verdict was “the product of undue delay”). In addressing this question in Agosto, this Court considered (i) whether the note “concern[ed] the crimes charged or the evidence in the case” or “any key issue”; (ii) whether the jury, in light of its experience with previous communications with the court, could have attached any significance to the delay; and (iii) if so, whether any belief by the jury that it was being ignored could have “had an effect on their deliberations.” 73 N.Y.2d at 966. Here, consideration of these factors amply demonstrates serious prejudice. The notes here related to the central evidence and legal issues in the case. It is hard to imagine what questions could be more important in a single- witness criminal case than those relating to the meaning of reasonable doubt, what that single witness said, and the weight that may be attributed to that witness’s -32- testimony—all of the points at issue in the jury notes here.21 (SA 136-37) Indeed, in closing arguments at trial, the People characterized the instructions on reasonable doubt and relying upon a single witness’s testimony as two of the “most important” instructions the court would provide. (SA 390, 397) There is also strong evidence that the jury felt pressured to reach a verdict that night. They jury’s three unanswered questions followed within an hour of the jury’s indication that it was deadlocked. Prior to the 94-minute delay, the court had responded to all other jury requests within a matter of minutes. (A 529, 531-33, 537-38) What is more, this 94-minute delay immediately followed the court’s instruction that the jury should work through its deadlock and its indication that there was no time limit for deliberations—suggesting that the jury might be required to deliberate late into the night. (A 538-40) Finally, the jurors had been told that their service was expected to end on Friday and that they were facing the prospect of being sequestered if they did not complete their deliberations that evening. (SA 200, 259-60, 579) These circumstances all strongly suggest that at least some jurors’ doubts concerning the testimony of Ms. Torres, the single witness charge, and the reasonable doubt standard were overcome not by the 21 As the Appellate Division noted, “[T]he request for a readback of the instruction on reasonable doubt, the determination of which is the crux of a jury’s function, and for a readback of the instruction regarding ‘the importance a single witness in a case versus multiple witnesses,’ ‘demonstrates the confusion and doubt that existed in the minds of the jury with respect to . . . crucial issue[s] . . . . The jury is entitled to the guidance of the court and may not be relegated to its own unfettered course of procedure.’” Mack, 117 A.D.3d at 1451 (alterations in original) (citations omitted). -33- weight of the evidence, but rather by the belief that answers to those questions would not be forthcoming and by the prospect of deliberating all night and into the weekend. The crucial nature of the jury’s requests, the court’s prior pattern of immediate response, the substantial length of the court’s silence, and the jury’s prior deadlock, all suggest that the jury’s verdict was a result of the court’s failure to respond to the jury requests, causing the defendant serious prejudice. See, e.g., People v. Valerio, 141 A.D.2d 585 (N.Y. App. Div. 2d Dep’t 1988) (holding that, after eight hours of deliberations, the court’s 80-minute failure to respond to a jury note regarding a deadlock resulted in “at least a reasonable inference that the verdict was the result of the court’s failure to properly instruct the jury”). Accordingly, even if this Court were to apply the serious-prejudice standard replaced by O’Rama, affirmance of the Appellate Division’s order of a new trial is warranted. C. The Trial Court Failed to Provide Meaningful Notice of the Jury’s Requests under NY CPL 310.30 As set out above, responding to substantive jury requests is one of the two duties comprising the court’s “core responsibility” under NY CPL 310.30. The other duty is to provide meaningful notice of the jury request. O’Rama, 78 N.Y.2d at 277. This Court has held that meaningful notice is notice that allows -34- counsel to “participate effectively” and “adequately protect the defendant’s rights.” Id. As discussed below, because the court failed to inform the parties of the timing of the jury requests and failed to return the jury to the courtroom to read the unanswered notes in open court, meaningful notice was not provided and a reversal of the trial court’s judgment is required. In O’Rama, this Court outlined a suggested procedure for responding to juror inquiries. O’Rama advises that courts should receive juror inquiries in writing, and then: (i) mark the inquiry as an exhibit, (ii) read the inquiry into the record in the presence of counsel, (iii) afford counsel an opportunity to suggest appropriate responses, (iv) inform counsel of the Court’s intended instruction so counsel has a chance to respond, (v) return the jury to the courtroom, and (vi) read the communication in open court so that the individual jurors can correct any inaccuracies. O’Rama, 78 N.Y.2d at 277-78. Here, the trial court failed to complete the O’Rama steps, resulting in inadequate notice. First, while the trial court read the contents of the 6:20 pm request for instructions on the meaning of reasonable doubt and the importance of a single witness and the 6:43 pm request for Ms. Torres’s testimony regarding Mr. Mack’s allegedly leaving the crime scene into the record in the presence of counsel, it apparently did not communicate the time stamps written on the requests. In this case, the timing of those notes was critical, as it ultimately showed that the jury -35- had waited 94 minutes without word from the court on its initial request before returning a verdict. Indeed, the failure of the court to provide counsel the timing of the requests appears to have left defense counsel under the misimpression that the jury submitted those requests just minutes before delivering its verdict. Defense counsel’s affidavit in support of a post-trial motion to set aside the verdict reflected this confusion. In it, he stated that, “five minutes prior to sending a note out that they had a verdict, [the jury] requested additional instruction on the law of reasonable doubt and single witness identification.” (SA 124) While, for the reasons set out above, no preservation was required in light of the fundamental nature of the court’s duty to abide by NY CPL 310.30, defense counsel would have nonetheless better understood the reasons for objecting or requesting a jury poll had it been advised that the jury had been waiting 94 minutes for a response that it likely assumed was never going to come. 22 While notice cases under O’Rama generally go to ensuring that the court conveyed the 22 Indeed, the People’s characterization of the court’s O’Rama obligations only highlights the need for defense counsel to have been advised of the timing of the notes for the notice to have been meaningful. Under the line of cases cited by the People—contrary as they are to this Court’s holdings in O’Rama and Silva—courts need not respond to outstanding jury requests when a jury returns a verdict, provided that the verdict is not the product of undue delay or other pressure. See supra Section I.B. Thus, notice of the timing of the jury notes would have been essential to any argument made by defense counsel as to why a response to the jury was necessary. Consequently, acceptance of the People’s argument as to the appropriate standard for addressing jury requests would nonetheless demand reversal here, where, under the People’s own reasoning, meaningful notice was not provided. -36- substance of the jury’s request, here the timing of the jury’s notes was equally as important. Second, the court failed to follow O’Rama’s notice procedure of returning the jury to the courtroom and reading the communication in open court so that the individual jurors could correct any inaccuracies. O’Rama, 78 N.Y.2d at 277-78; see also People v. Walston, 23 N.Y.3d 986, 989 (2014). The importance of returning the jury to the courtroom and reading the request in open court is evidenced here. Had the trial court read the notes and indicated that it was deeming the jury’s final note to be a withdrawal of the prior three unanswered notes, the jury could have confirmed or rejected that interpretation. 23 23 This Court may consider the trial court’s failure to provide adequate notice despite the fact this precise argument was not presented to the Appellate Division. Mr. Mack argued strenuously before the Appellate Division that the trial court’s failure to comply with O’Rama constituted a mode of proceedings error for which reversal was required. Mr. Mack cited extensively to O’Rama and its progeny, noting throughout his brief that O’Rama requires both notice of the requests and a meaningful response, and that part of the required O’Rama procedure is returning the jury to the courtroom. (Brief for Appellant Terrance L. Mack, Mack, 117 A.D.3d, at 24-35) While Mr. Mack did not highlight the notice argument articulated above on his appeal, the facts and authorities relied upon now are the same as those before the Appellate Division and the question of law considered is the same. See generally Persky v. Bank of Am. Nat’l Ass’n, 261 N.Y. 212, 218 (1933) (appellate courts review questions of law and are not confined to consideration of the specific arguments presented). Regardless, pursuant to NY CPL 470.35(2), this Court may, in criminal cases, consider arguments by the respondent that were not raised before the intermediate appellate court. Arthur Krager, THE POWERS OF THE NEW YORK COURT OF APPEALS § 21:13 (3d ed. 2005); People v. Wrotten, 60 A.D.3d 165, 186-87 (N.Y. App. Div. 1st Dep’t 2008) (noting that the Court of Appeals may consider questions of law not raised before the intermediate appellate court under 470.35(1),(2)(a)(b)), rev’d on other grounds, 14 N.Y.3d 33 (2009); see also O’Rama, 78 N.Y.2d at 279 (mode of proceedings error is a “question of law” appropriate for appellate review). -37- D. Defense Counsel Could Not Have Cured the Court’s Errors by Consent The People argue—inconsistently—both that defense counsel cured the court’s errors by consenting to taking the verdict in an off-the-record conversation with the court and yet also purposefully did not consent or object to the taking of the verdict so as to “game” the system. (Appellant Br. at 10, 13-14) This Court held in Walston that, “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to.” 23 N.Y.3d at 990 (citation omitted). More importantly, no off-the-record conversation with counsel could have cured this error. This Court has made clear that “‘[a] defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings pr[e]scribed by law.’” People v. Becoats, 17 N.Y.3d 643, 650-51 (2011) (alteration in original) (quoting People v. Patterson, 39 N.Y.2d 288, 294-95 (1976)). Thus, it does not matter what defense counsel did or did not say during the off-the-record conversation, because he could not have consented to the court’s error. Defense counsel did not have the authority to relieve the trial court of its core responsibility to give notice and respond to the jury notes. Indeed, as set out above, the court has no discretion in this regard. -38- As to the People’s concern that the Appellate Division’s holding will permit gamesmanship, this Court has recently noted in a related context under NY CPL 310.30, that adherence to O’Rama in fact reduces the risk of gamesmanship. Rivera, 23 N.Y.3d at 833 n.1. Had the trial court here discharged its core responsibility to notify the parties of the timing and substance of the jury’s questions, to acknowledge the notes in the jury’s presence, and to provide meaningful responses, there would have been no room to argue now whether the jury impliedly withdrew its questions or whether defense counsel consented to the court’s failure to answer the jury’s questions during an off-the-record discussion. A bright-line rule—not the standard that the People offer—is the solution to the problem of gamesmanship. Moreover, while the People argue a theoretical risk of gamesmanship regarding whether a defendant chooses to object to an apparent O’Rama error (Appellant Br. at 12-14), that risk could exist for any error under the law for which preservation is not required. Nonetheless, this Court has ruled that there are certain types of errors that are so egregious that they undermine the fundamental fairness and validity of a trial and so they may be raised on appeal regardless of whether an objection was lodged below. See Rivera, 23 N.Y.3d at 831. Indeed, even the dissenting opinion in Rivera acknowledged that such potential gamesmanship “sometimes may be a tolerable side effect of the protection of defendants’ most -39- basic rights.” Id. at 838 (Abdus-Salaam, J., dissenting). That is certainly the case here, where the trial court failed to fulfil its core responsibility under O’Rama by neglecting to provide either meaningful notice or any response to the jury requests. Notably, to the contrary, in all of the cases cited by the People on this point, the court, while perhaps departing from the procedures outlined in O’Rama, met its core responsibility of providing both notice and a response to the jury request.24 Finally, even accepting all of the People’s theoretical arguments on this issue, there is no evidence in the record of any actual gamesmanship here. Point II: This Court Should Affirm the Appellate Division’s Decision as Mr. Mack Was Provided Ineffective Assistance of Counsel at Trial For all of the reasons set forth above, this Court should affirm the Appellate Division’s decision to order a new trial in light of the trial court’s mode of proceedings error. This Court may, alternatively, affirm the Appellate Division’s decision on the basis of “[a]ny other question of law involving alleged or possible error or defect in the criminal court proceedings resulting in the original judgment . . . which may have adversely affected the party who was appellant in 24 See People v. Alcide, 21 N.Y.3d 687, 694 (2013) (court provided notice of jury requests and responded); People v. Ippolito, 20 N.Y.3d 615, 624-25 (2013) (juror question was made in open court and responded to by the court); People v. Kadarko, 14 N.Y.3d 426, 428-29 (2010) (court provided notice of jury request and responded); People v. Starling, 85 N.Y.2d 509, 516 (1995) (court provided notice of jury request and responded); People v. DeRosario, 81 N.Y.2d 801, 802-03 (1993) (holding that notice and responses to written jury inquiries had been provided and finding error where notice was not provided); People v. Ramirez, 15 N.Y.3d 824, 825-26 (2010) (court provided notice of jury request and responded). -40- the intermediate appellate court.” NY CPL 470.35(2)(b). This Court is not precluded from considering such a question “by the circumstance that it was not considered or determined by the intermediate appellate court, or that it did not constitute a basis for such court’s reversal” of the trial court judgment. Id. Accordingly, for the reasons set out below, this Court may, in the alternative, affirm the Appellate Division’s decision because of the ineffective assistance of counsel provided to Mr. Mack at trial. The right to the effective assistance of counsel is guaranteed under the federal and New York Constitutions. U.S. CONST. amend. VI; N.Y. CONST. art. I, § 6. Under the New York Constitution, the right to effective assistance of counsel is satisfied if the “evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation,” demonstrate counsel’s “meaningful representation.” See People v. Baldi, 54 N.Y.2d 137, 147 (1981); People v. Berroa, 99 N.Y.2d 134, 138 (2002). Unlike the federal context, the New York standard does not require a showing that counsel’s performance prejudiced the defendant. See People v. Turner, 5 N.Y.3d 476, 480 (2005) (noting that the New York standard is “somewhat more favorable to defendants” than the federal standard). Nevertheless, under the New York standard, counsel’s prejudicial effect on the fairness of the proceeding remains a significant element in assessing the representation. People v. Benevento, 91 N.Y.2d 708, 714 (1998) (noting that -41- whether defendant would have been acquitted but for counsel’s errors is relevant, though not dispositive). Finally, to succeed on a claim of ineffective assistance of counsel, defendant must show that counsel’s alleged deficiency was not the result of strategic or other legitimate explanations. People v. Caban, 5 N.Y.3d 143, 152 (2005) (citing People v. Rivera, 71 N.Y.2d 705, 709 (1988)). Here, for the reasons detailed below, defense counsel did not provide the meaningful representation guaranteed to Mr. Mack under the law when counsel (i) failed to request a response to the outstanding jury requests before delivery of the verdict; (ii) opened the door, and then failed to object, to highly prejudicial evidence and testimony relating to the prior photo identification of Mr. Mack by Ms. Torres; and (iii) failed to make appropriate efforts to seek an unbiased jury given the substantial media attention on Mr. Mack’s case. These deficiencies deprived Mr. Mack of meaningful representation and, accordingly, the trial verdict must be vacated. A. Failure to Request a Response to the Jury Requests Defense counsel failed to provide Mr. Mack meaningful representation when counsel failed to object to the court’s taking of the jury’s verdict without responding to the outstanding, and essential, jury requests. As this Court has noted, there are “few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for -42- clarification of the law.” Kisoon, 8 N.Y.3d at 134. As set out above, the jury requests for an instruction on the law regarding the meaning of reasonable doubt and the importance of a single witness in a case, and request for the readback of Ms. Torres’s testimony regarding Mr. Mack’s “leaving of the crime scene,” went to the central points at issue in this case. Even though the court was required to respond to the notes, and the issue is reviewable as a mode of proceedings error regardless of defense counsel’s actions, defense counsel’s failure to object to an error undermining the very validity of the trial proceedings constitutes deficient representation for which Mr. Mack has surely suffered, sitting in prison for the last five and a half years awaiting a new trial. In addition to the jury’s confusion as to the fundamental standard of reasonable doubt and the extent to which it could rely upon one witness’s account in coming to a verdict, the jury was also under the incorrect impression that Ms. Torres had testified to Mr. Mack’s “leaving of the crime scene.” Before receiving the note announcing that the jury had reached a verdict, the court noted to counsel that no such testimony existed and indicated its intent to tell the jury as much—a clarification undoubtedly helpful to Mr. Mack’s case. (A 541-42) Even then, defense counsel did not object to the verdict despite his awareness of the jury’s misunderstanding of that critical point and the court’s intention to provide an instruction beneficial to Mr. Mack. -43- To the extent the People argue that there was some tactical advantage to not objecting, this argument should be rejected. There is no evidence in the record that this failure was anything but error by defense counsel. Moreover, with regard to the question of Ms. Torres’s testimony regarding Mr. Mack’s “leaving of the crime scene,” Mr. Mack only stood to benefit from the court’s instruction. As Chief Judge Lippman stated in his concurring opinion in an analogous context in People v. Cruz, 14 N.Y.3d at 820 (joined by Judges Ciparick and Jones), “[a]ny competent defense counsel, upon learning of such a request for an unadmitted, potentially inculpatory statement by his or her client, would at a minimum urgently request that the jury be instructed by the court that the statement was not in evidence.” B. Prejudicial Errors Related to Introduction of the Photo Identification and Array In addition to failing to object to the court’s taking of the verdict without responding to the jury requests, defense counsel failed to provide meaningful representation when it opened the door, and then failed to object, to testimony and evidence regarding Ms. Torres’s photo identification of Mr. Mack. It is well-settled that witnesses may not testify to prior identification of a defendant through a photo identification procedure and that photo arrays are generally inadmissible. People v. Hagedorny, 272 A.D. 830 (N.Y. App. Div. 2d Dep’t -44- 1947); People v. Lindsay, 42 N.Y.2d 9, 12-13 (1977). Nonetheless, when questioning Ms. Torres, defense counsel opened the door to the photo identification, resulting in the admission of highly prejudicial physical evidence and testimony. After defense counsel opened that door, the People seized the opportunity to question Ms. Torres on the identification; question the police investigator, Mr. Penkitis, on the procedure for the identification; and introduce the photo array into evidence—all, inexplicably, without objection from defense counsel. As set out below, these errors prejudiced Mr. Mack and deprived him of meaningful representation at trial. 1. Defense Counsel Provided Ineffective Representation When He Opened the Door to Prejudicial Testimony Regarding the Prior Photo Identification of Mr. Mack The law is clear that witnesses may not testify to pre-trial photo identifications. People v. Perkins, 15 N.Y.3d 200, 205 (2010). Nonetheless, defense counsel inexplicably invited Ms. Torres to provide otherwise inadmissible testimony regarding her prior photo identification of Mr. Mack (A 160), leading to the further testimony of Mr. Penkitis regarding the procedure for the identification (SA 219-22, 416-17). This had the prejudicial effects both of advising the jury that Mr. Mack had been previously identified by Ms. Torres and making that identification a focus throughout the trial through questioning of Ms. Torres and Mr. Penkitis (who testified twice about this issue). (A 214, 396) -45- Moreover, on cross-examination of Mr. Penkitis, after he was called to testify by defense counsel, the jury was told that Mr. Mack was “developed as a suspect during the course of [Mr. Penkitis’s] investigation and [his] conversation[s] with seventy-five to one hundred people.” (A 417). This was arguably the most damaging “evidence” offered by the People as, until that point, no information had been provided as to how Mr. Mack became a suspect, and, without the photo identification evidence, the only link between Mr. Mack and the scene of the incident would have been Ms. Torres’s in-court identification. Not surprisingly, the People seized on defense counsel’s error and emphasized in summation Ms. Torres’s photo identification and the fact that the police investigators’ “knock[ing] on doors,” “ma[king] phone calls,” and searching for “anyone with information,” led them to place Mr. Mack in the photo array. (SA 401) 2. Defense Counsel Also Provided Ineffective Representation When He Failed to Object to the Prejudicial Admission of the Photo Array Even if, as the People argued before the Appellate Division, defense counsel’s initial opening of the door regarding the photo identification was strategic—however misplaced—that does not explain his failure to object to the improper admission of the photo array or the improper bolstering testimony regarding Ms. Torres’s negative identifications discussed below. The photo array admitted into evidence contained six mug shots of black males and bore -46- Mr. Penkitis’s notation of Ms. Torres’s alleged statement during the identification, “THAT’S THE GUY,” in all capital letters on the bottom right corner of the photo array. (SA 130, 159, 738) As set out below, admission of the photo array was entirely improper and prejudicial, demanding strong objection from defense counsel, which counsel failed to provide. First, the photo array, containing a mug shot of Mr. Mack, was prejudicial in that it emphasized for the jury that Mr. Mack had a prior criminal record. See generally People v. Bolden, 58 N.Y.2d 741, 746 n.3 (1982); People v. Caserta, 19 N.Y.2d 18, 21 (1966). There was no need for the People to put the photo array into evidence as Ms. Torres had already testified to the identification and Mr. Penkitis had testified to the procedure. (A 160, 214-21) Second, Mr. Penkitis’s inscription on the photo “THAT’S THE GUY” and the circling of the number above Mr. Mack’s picture with Ms. Torres’s initials, when considered in combination with Mr. Penkitis’s testimony immediately prior to admission of the array that Ms. Torres had made an identification from the array, improperly bolstered Ms. Torres’s in-court identification of Mr. Mack. Under this Court’s opinion in People v. Trowbridge, 305 N.Y. 471 (1953), testimony by a police officer as to a previous identification of the defendant by another witness is inadmissible. Such bolstering of an out-of-court identification “tends to give the -47- idea to a jury that there is an impressive amount of testimony to identification when such is really not the fact.” Caserta, 19 N.Y.2d at 21. For these reasons, admission of the photo array was improper and clearly prejudiced Mr. Mack. Defense counsel’s failure to object to the array, or at the very least to request redaction of the handwritten note, constitutes ineffective assistance of counsel. People v. Karamanites, 104 A.D.2d 899, 900 (N.Y. App. Div. 2d Dep’t 1984) (finding defense counsel’s failure to object to Trowbridge testimony, among other errors, “has repeatedly been deemed evidence of ineffective assistance of counsel”); Caserta, 19 N.Y.2d at 21 (Trowbridge errors cannot be ignored in cases where evidence of defendant’s identification is not “so strong that there [was] no serious issue upon the point”). There was no conceivable strategic reason for not objecting to admission of the photo array. See People v. Winston, 134 A.D.2d 546, 547 (N.Y. App. Div. 2d Dep’t 1987) (finding that “no possible tactical reason” justified defense counsel’s failure to object to a detective’s Trowbridge testimony regarding a prior photo identification of defendant, and ultimately reversing defendant’s conviction based on ineffective assistance of counsel). The People’s only evidence linking Mr. Mack to the scene of the incident was the testimony of Ms. Torres. Thus, there is no possible strategic or other legitimate reason for counsel’s failure -48- to object to testimony or evidence that might improperly bolster Ms. Torres’s identification. 3. Defense Counsel Failed to Object to the Prejudicial Negative Identification Testimony In addition to opening the door to the photo identification testimony and failing to object to admission of the photo array, defense counsel permitted further improper bolstering testimony by failing to object to testimony on the negative identifications by Ms. Torres of 35 other individuals included in the photo arrays. (A 198, 219-21) Such negative identifications may be admissible to demonstrate the reliability of an identification by showing that “‘the eyewitness possessed the ability to distinguish the particular features of the perpetrator.’” People v. Wilder, 93 N.Y.2d 352, 356 (1999) (quoting Bolden, 58 N.Y.2d at 744). Here, however, defense counsel had not put Ms. Torres’s ability to distinguish Mr. Mack from the other individuals in the array at issue—instead, he suggested that she selected Mr. Mack because he was the only person in the array she recognized from the neighborhood. (A 160; SA 374-75) Because the negative identifications had the prejudicial effect of bolstering Ms. Torres’s prior photo identification, defense counsel should have objected to their reference at trial. The weight of this error was compounded when the People again referenced the negative identifications in summation—again without objection by defense -49- counsel—thus ensuring that the jury would have this prejudicial testimony in mind during deliberations. (SA 401) C. Failure to Seek an Unbiased Jury The media coverage in the Rochester area of Ms. Shaw’s death and of Mr. Mack’s case was extensive and prejudicial. The coverage made Ms. Shaw a symbol of senseless violence and created an intense sense of urgency within the community to hold someone accountable for her death.25 The coverage became more prejudicial once Mr. Mack was arrested as the media provided specific details of not only the alleged facts and evidence in his case, but also information regarding Mr. Mack’s two prior convictions. 26 The media accounts further ascribed an unfounded credibility to the evidence against Mr. Mack, quoting the police officials’ praise for the investigation leading to Mr. Mack’s arrest and suggesting that the investigation had been thorough.27 While the media enjoys the constitutional right to publish such content, “it is well settled that [n]ewspapers . . . may not deprive accused persons of their right to a fair trial.” People v. Boudin, 90 A.D.2d 253, 259 (N.Y. App. Div. 2d Dep’t 1982) (alteration in original) (quotation 25 See, e.g., Vargas, supra note 2; Orr & Vargas, supra note 5; Citizens Rallying, supra note 3; Vargas, Fatal Stabbing by Mob Still Haunts Rochester, supra note 5; Morrell, Slain Mom Remembered, supra note 5. 26 See, e.g., supra note 11; Vargas & Freile, supra note 12; Vargas & Freile, supra note 13. 27 See supra notes 11-12. -50- marks omitted). Accordingly, given the level and nature of this media coverage, it was incumbent upon defense counsel to take proactive measures in seeking a jury unaffected by that publicity. In advance of trial, defense counsel should have made a motion to transfer venue to a county that was not saturated with news accounts venerating Ms. Shaw, demanding that someone be held accountable for her death, scrutinizing Mr. Mack, and suggesting strength of the evidence against him. More so, during voir dire, defense counsel should have ensured that jurors were questioned on their exposure to this media coverage and their ability to nonetheless be impartial. The failure of defense counsel to make any effort to seek a jury unbiased by the extensive media coverage of the incident deprived Mr. Mack of meaningful representation at trial.28 Defense counsel should have made a motion for a change of venue before trial. New York Criminal Procedure Law § 230.20, permits for a change of venue where either party shows “reasonable cause to believe that a fair and impartial trial cannot be had in such county.” While transfer of venue in advance of trial is reserved for exceptional cases, the level of publicity and “public passion” 28 Mr. Mack made extensive arguments before the Appellate Division that the trial court order should be reversed as he was provided ineffective assistance of counsel below. (Brief for Appellant Terrance L. Mack, supra note 23, at 48-60. As noted above, while Mr. Mack did not articulate the precise argument regarding counsel’s failure to seek an unbiased jury, this Court may properly consider this argument on appeal. See supra note 23. -51- at issue made this case an appropriate one for transfer. See People v. Boss, 261 A.D.2d 1, 3-4 (N.Y. App. Div. 1st Dep’t 1999) (granting pre-trial change of venue motion based in part on the “scale and intensity of the public clamor” preceding indictments, including, weeks of mass demonstrations in which high-ranking public officials participated); Boudin, 90 A.D.2d at 258 (granting pre-trial change of venue motion based in part on the “intensive, localized, continuing and prejudicial publicity surrounding [the defendant’s] prosecution”); see also People v. Culhane, 33 N.Y.2d 90, 110 (1973) (recommending transfer of venue for retrial “given the very localized and incessant nature of the prejudicial publicity surrounding [the] case”); People v. Porco, 30 A.D.3d 543 (N.Y. App. Div. 2d Dep’t 2006) (granting pre-trial change of venue due to the “intense, localized, and prejudicial pretrial publicity”). The regular media coverage of the case and apparent public demand for someone to be held accountable for Ms. Shaw’s death suggest an atmosphere in which jurors may have felt pressured to reach a verdict “demanded by public opinion” and thus defense counsel should have sought a change of venue. Boss, 261 A.D.2d at 6.29 29 Further, had defense counsel sought a public survey to test knowledge or preconceived notions about the case in the community, as has been done in other cases involving substantial publicity, the court may have had further cause to grant the motion. See, e.g., Boss, 261 A.D.2d at 6; People v. Brensic, 136 A.D.2d 169, 174 (N.Y. App. Div. 2d Dep’t 1988). -52- There is no apparent strategic justification for not at least seeking a change of venue. Indeed, New York courts have been careful to ensure that parties who seek such a venue change do not suffer unfair collateral consequences by, for example, ensuring that the new venue is placed in a community with similar demographics. See id. at 8. Even if, however, defense counsel had a strategic or otherwise reasonable justification for failing to make a motion for a change of venue, there is no justification for his complete failure to make any attempt during voir dire to discern the extent of media exposure on the jurors and whether the jurors could be impartial. Despite the substantial media attention surrounding this case, much of which provided a sympathetic picture of Ms. Shaw and demanded accountability by a wrongdoer, defense counsel did not ask a single question of the jurors regarding potential bias as a result of that coverage. This was not a situation where defense counsel could justifiably rely upon the questioning conducted by the court or the People, which was superficial, conclusory, and insufficiently searching. For example, Juror , after indicating that he had heard about the case, was not asked a single follow-up question regarding the specifics of his exposure. (SA 253) While Juror answered “yes” when asked by the People if he could put what he had heard aside, defense counsel had no way of evaluating that response without understanding the extent of Juror exposure. Indeed, “‘[n]o matter how solemnly given, a Redacted Redacted Redacted -53- juror’s statement that he has not been influenced by prejudicial publicity and is capable of affording the defendant a fair trial is not necessarily dispositive.’” Brensic, 136 A.D.2d at 175 (quoting Marshall v. United States, 360 U.S. 310, 312 (1959)). As a result, “the reality of . . . biased attitudes [from jurors] must be revealed by circumstantial evidence.” Hughes v. United States, 258 F.3d 453, 459 (6th Cir. 2001). Most egregious of all is the case of Juror , who, after stating that she was familiar with the incident from the news, was not asked a single question about her knowledge or asked whether she could be impartial. 30 (SA 252) Moreover, the record is unclear as to whether there may have been additional jurors who also indicated having seen media coverage of the case who were not questioned on that exposure or any bias. The People noted on the record that “a few” jurors nodded in recognition of having seen coverage of the incident, and it is not clear if each of those jurors was then questioned about that exposure. (SA 253) 30 To the extent the People argue that their generalized questions put to the jury regarding whether “anyone” would “have a problem” dismissing what they had heard or read in the paper and rendering a verdict based on the information provided in the courtroom (SA 253), or the court’s general instructions on impartiality (SA 195), may have been sufficient, this argument should be rejected. Given the extensive media attention surrounding Ms. Shaw’s death and Rochester’s search for culpable individuals, specific questioning of jurors regarding the extent of their media exposure and whether they could be unbiased was necessary. See Johnson v. Armontrout, 961 F.2d 748, 753-54 (8th Cir. 1992) (“We cannot say that an ambiguous silence by a large group of venire persons to a general question about bias is sufficient . . . [where] [t]he exceptional circumstances of this case warranted more aggressive questioning during voir dire.”). Redacted -54- Ultimately, then, where the potential for bias is apparent and counsel fails to ask any questions to elicit whether that bias is in fact present, counsel cannot be said to have provided effective representation. See Johnson, 961 F.2d at 755 (finding ineffective assistance of counsel where counsel failed to request removal of, or question, jurors about their impressions of defendant after they sat on a jury that convicted another person for taking part in the alleged offense); see also Hughes 258 F.3d at 462 (“When a venireperson expressly admits bias on voir dire, without a court response or follow-up, for counsel not to respond in turn is simply a failure ‘to exercise the customary skill and diligence that a reasonably competent attorney would provide.’” (quoting Johnson, 961 F.2d at 754)). 31 Defense counsel’s failure to question any of the potential jurors about bias in light of the substantial media coverage of the incident, and in particular his failure to ask a juror who indicated having seen press reports of the incident about the extent of her exposure and any potential bias, was a clear violation of Mr. Mack’s right to meaningful representation. 31 The failure to question any of the jurors about their potential bias based on media exposure not only prejudiced Mr. Mack’s right to an unbiased jury but further left no record on which a court might consider a post-voir dire motion for a change of venue—an option which may have been available had defense counsel’s representation been adequate. See, e.g., People v. Cahill, 2 N.Y.3d 14, 39-40 (2003) (Affirming denial of a post-voir dire change of venue motion, and noting that the proper inquiry is “whether [jurors’ knowledge based on pre-trial publicity] has shaped the jurors’ attitudes and predispositions.”). -55- There is no possible strategic reason for defense counsel’s failure here. While attorneys are generally accorded deference in conducting voir dire, that deference does not encompass the ability to effectively waive a criminal defendant’s right to an impartial jury. Hughes, 258 F.3d at 457, 463. A strategic reason may be imagined for defense counsel’s decision not to seek removal of jurors who were exposed to substantial media coverage of the case, but there is no rational justification for a complete failure to even ascertain the extent of that exposure or seek confirmation that a juror who admitted to exposure could be unbiased. D. Defense Counsel’s Errors Cumulatively Amount to Ineffective Assistance of Counsel As discussed above, each of defense counsel’s errors, on its own, provides a sufficient basis to affirm the Appellate Division’s grant of a new trial. To be sure, then, the cumulative effect of defense counsel’s errors deprived Mr. Mack of the effective assistance of counsel, and similarly provides a basis for affirmance. When evaluating whether counsel’s representation was constitutionally deficient, New York courts are concerned with the fairness of the process as a whole. Baldi, 54 N.Y.2d at 147 (the proper inquiry for ineffective assistance of counsel examines “the evidence, the law, and the circumstances of a particular case, viewed in totality”). -56- Accordingly, this court has found ineffective assistance of counsel where the “cumulative effect” of counsel’s errors deprived the defendant of meaningful assistance. See People v. Oathout, 21 N.Y.3d 127, 132 (2013). At trial, as Mr. Mack’s counsel made the series of errors described above, each inexplicable mistake worked to compound the prejudicial effects of the last. Accordingly, defense counsel’s failure to object to the court’s taking of the verdict without responding to the jury notes, opening the door to the photo identification testimony, failure to object to admission of the photo array, failure to object to the negative identification testimony, and failure to seek an unbiased jury, when taken together, deprived Mr. Mack of “meaningful representation,” and denied him a fair trial. See Baldi, 54 N.Y.2d 137. Accordingly, for that reason, too, the trial court verdict should be vacated and the order of the Appellate Division affirmed. * * * CONCLUSION The trial court failed to fulfil its core responsibility under NY CPL 310.30 when it did not provide meaningful notice of, or provide any response to, three substantive jury requests central to the matters at issue at trial. This failure constitutes a mode of proceedings error under O’Rama, requiring reversal of the trial court’s judgment. The trial court’s judgment further warrants reversal based on the woefully ineffective assistance of counsel provided defendant at trial in