The People, Appellant,v.Terrance L. Mack, Respondent.BriefN.Y.September 10, 2015Brief Completed: January 9, 2015 To Be Argued By: Geoffrey Kaeuper Time Requested: 15 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, Defendant-Respondent. REPLY BRIEF FOR APPELLANT APL-2014-00175 SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 POINT I POINT II CONCLUSION TABLE OF CONTENTS The trial court did not commit a mode of proceedings error by accepting the jury verdict. Defendant received meaningful representation. 1 1 4 8 TABLE OF AUTHORITIES CASES People v Alcide, 21 NY3d 687 (2013) . .. .. ... .. .... ... .. ..... .. .... ... .... ... . ... . People v Baldi, 54 NY2d 137 (1981) ..... .. ...... .. .. . . . . . .. .. ... . . .. . ...... .... . . 4 People v Benevento, 91 NY2d 708 ( 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v Brown, 1 7 NY 3d 863 (20 1 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v Caserta, 19 NY2d 18 ( 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v Cummings, 16 NY2d 784 (20 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v DeRosario, 81 NY2d 801 (1993) . . .. . . .. .. ..... .. . . ....... ... .. . ......... . People v Henry, 95 NY2d 563 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v Ippolito, 20 NY3d 615 .. . ..... . ... . . . ......... ... ..... .. .... . .. . .. . . . .. . People v Kadarko, 14 NY3d 426 (2010) . . . ...... .. .. ..... .. . .. . . . . .... .. ... ..... . . People v O 'Rama, 78 NY2d 270 (1991) . . .... . . . ....... . .. . . . . .. .. . . .. ....... . . .. .. 3 People v Satterfield, 66 NY2d 796 (1985) . . .. . . . . . . . . . .. . .. . . . . . .. . .. . .. . .. . . . . .. . . 5 People v Silva, _ NY3d _ , 2014 NY Slip Op 08215 (Nov. 24, 2014) ... ... ... .. . . ... . 1, 2 People v Starling, 85 NY2d 509 ( 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1 People v Williams, 21 NY3d 932 (2013) . . ........ . . . ...... . . .. ... . .. . .. . . ... ... ... 3 11 STATUTES CPL 310.30 ..... . ..... .. .... .. .... ... ... .. .... ... .... ... ... .... .. .. .. . . .... 1, 2 CPL 440 .. .. .. . .. ... .. .... ... ... .. .... . ................... . ... .. ..... . .... 3, 6 MISCELLANEOUS Transcript of Oral Argument in People v Silva (Nos. 208 & 209; Oct. 23, 2014) at 38 ... ... . 2 POINT I The trial court did not commit a mode of proceedings error by accepting the jury verdict. The trial court did not commit a mode of proceedings error by accepting the jury verdict. Defense counsel had knowledge of the precise content of the notes and of the action the court intended to take and raised no objection. No case from this Court has held that a mode of proceedings error was committed when defense counsel had that knowledge (cf People v Alcide, 21 NY3d 687, 693-694 [2013]; People v Ippolito, 20 NY3d 615, 625 [2013]; People v Kadarko, 14 NY3d 426, 429-430 [2010]; People v Starling, 85 NY2d 509, 516 (1995]; People v DeRosario, 81 NY2d 801, 803 (1993]). In support of his mode of proceedings argument, defendant cites this Court's recent decision in People v Silva L NY3d _, 2014 NY Slip Op 08215 [Nov. 24, 2014]). But Silva does not help defendant here. The decision in Silva addressed two cases in which deliberating juries sent out notes which the record failed to demonstrate were ever shown to defense counsel (id. at *2). The decision reiterated that, "[ a]lthough not every violation of CPL 310.30 is immune from normal preservation, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL l 310.30 and qualifies as a mode of proceedings error" (id. at *3-4 [citations omitted]). Because compliance cannot be inferred from a silent record, reversal was required in both cases (id. at *4-5). Thus, Silva says nothing about whether preservation would be required if the trial court had apprised counsel of the specific contents of the notes. As to that, in fact, at oral argument, one of the defense attorneys acknowledged the "very clear and precise rule" for jury notes: "Every case where counsel had notice that there was a violation going on, you said preservation required, and in every case where counsel had no reason to know that there was a violation, you said mode of proceedings" (Transcript of Oral Argument in People v Silva [Nos. 208 & 209; Oct. 23, 2014] at 38). Silva did not change that rule. To the extent defendant now attempts to find a new mode of proceedings error, other than the one found by the Appellate Division, his claim should be rejected. Defendant now complains that counsel was not told when the notes were received and the notes were not read aloud to the jurors (Resp Br, 34-36). But this Court has never held that informing counsel of the timing of a jury note is a requirement, let alone that failure to do so is a mode of proceedings error. Although reading the notes aloud to the jury before responding is indeed part of the preferred procedure, rigid adherence to that procedure is not mandated and the 2 point of the procedure is to permit participation by defense counsel (People v O'Rama, 78 NY2d 270, 278 [1991]). So long as defense counsel had notice of the jury's note, an objection is required at a time when the court can cure the alleged error (see People v Williams, 21 NY3d 932, 934-935 [2013]). Expanding the class of mode of proceedings errors in the way defendant advocates, therefore, is unnecessary and would result in floods of CPL article 440 motions and motions for writs of error coram nobis. Instead, this Court should reaffirm the "very clear and precise rule" that has guided its previous 0 'Rama decisions. When defense counsel is apprised of the specific content of a substantive note and the court's intended response, a claim of error in the court's handling of the note requires preservation. The very reason for applying the mode of proceedings concept in the jury note situation is that "failing to disclose the contents of the note ha[s] the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represente[ s] a significant departure from the organization of the court or the mode of proceedings prescribed by law" ( 0 'Rama, 78 NY2d at 279 [internal quotation marks and citations omitted]). Where counsel is not thus thwarted, there is no reason for any alleged error to be immune from ordinary preservation requirements. 3 POINT II Defendant received meaningful representation. Defendant received meaningful representation of counsel (see generally People v Baldi, 54 NY2d 137, 146-147 [1981]), and the Appellate Division properly rejected defendant's claim of ineffective assistance. Defendant now alleges three errors by counsel: (1) allowing the court to take the verdict while there were unanswered jury notes; (2) allowing evidence to come in of a prior photo identification of defendant; and (3) failing to deal adequately with the media coverage of the case. But these were not errors. By allowing the court to take the verdict, counsel took a calculated risk. Whatever difficulties the jurors had been having were resolved and they had reached an outcome. Giving them further instructions and inviting further deliberations might have no effect or it might lead to an opposite outcome. And they might be talked out of an acquittal and into a guilty verdict just as much as the other way around. Counsel, therefore, had to weigh whether defendant was more likely to be acquitted if the resolution without further instruction were accepted as opposed to if it were not. That presents a tactical decision for counsel to make and counsel made a legitimate decision here (see generally People v Benevento, 91 NY2d 708,712-713 [1998]). 4 Contrary to defendant's further contention, counsel also had a legitimate reason for bringing in Megan Torres's photo identification of defendant. Torres identified defendant in court as someone who stood in the front of the group during the attack and hit the victim on the head with a bottle (Appendix [hereinafter "A"]143-144, 165-166). Counsel could argue that Torres was mistaken but, given that she knew defendant and had a clear view of the crime (A 142, 144, 158), that argument would be difficult. Instead, counsel argued that Torres was biased by her connection to the victim's family and was intentionally lying about the identification (A 150-153; Supplementary Appendix [hereinafter "SA"] 373). Counsel argued that after initially telling the police that she could not make an identification, Torres decided to go to the police and make an identification of anyone she recognized that could be plausibly connected to the crime scene (SA 375). That argument was not impaired by the prior identification, and it required testimony about the procedure. Thus, regardless of whether one might in hindsight second-guess counsel's strategy, it was legitimate and is not grounds for reversal (see People v Satterfield, 66 NY2d 796, 799-800 [ 1985] ["It is not for this court to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation"]). 5 Moreover, the photo array testimony was not prejudicial to defendant. The reason a photo array identification is inadmissible in New York is that, because the array shows the police already had a photo of the defendant, "the inference to the jury is obvious that the person has been in trouble with the law before" (People v Caserta, 19 NY2d 18, 21 [ 1966]). But here, defendant testified on his own behalf and was naturally subject to cross-examination about some of his criminal history (A 449-450, 464-465). So the photo array testimony did not carry any of the normal criminal-history prejudice. Counsel knew that information would come out in any event when defendant testified. Defendant's further contention about media coverage cannot be considered on direct appeal because it involves matters outside of the record. Newspaper articles and the like are not properly part of the record on direct appeal, and any contention relying upon them must be made (if at all) by CPL article 440 motion (see e.g. People v Brown, 17 NY3d 863, 866 [2011]). If, however, this Court does consider the issue, defendant does not establish any actual failing by counsel, let alone one of constitutional magnitude. Counsel conducted a thorough voir dire, seeking an unbiased jury, and whether to ask jurors additional questions about media exposure was a matter of strategy. And there is nothing to suggest that the jury verdict was somehow swayed by publicity of some sort, so defendant cannot 6 establish any prejudice even if it were possible to conclude that counsel erred (see People v Cummings, 16 NY2d 784, 785 [20 II] ["in order to prevail on a claim of ineffective assistance of counsel based on a single error or omission, a defendant must demonstrate that the error was 'so egregious and prejudicial' as to deprive defendant of a fair trial"]). Accordingly, ineffective assistance of counsel does not provide a substitute ground for ordering a new trial. Defendant's disputes with trial counsel involve matters of legitimate strategy and not errors by counsel. Defendant "confuse[ s] true ineffectiveness with losing trial tactics or unsuccessful attempts to advance the best possible defense" (People v Henry, 95 NY2d 563, 565 [2000]). 7 CONCLUSION The order of the Appellate Division should be reversed, and the judgment of conviction should be reinstated. Dated: January 9, 2015 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Assistant istrict ttorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 8 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, AFFIDAVIT OF SERVICE BY MAIL Defendant-Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) Catherine Flaherty, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 9th day of January, 2015, deponent served three (3) copies ofthe Reply Brief for Appellant upon David R. Juergens, Esq., Assistant Public Defender, attorney for respondent in this action at I 0 N. Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Sworn to before me this 9th day of January, 2015. M£w.d12da!(j CATHERINE FLAHERT = JCAt.~NE T. HELLER ')TARV PUBLIC, Stale of}x:!t~ - 1 Commission Expires · \.~ STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, Defendant-Respondent. PDF CERTIFICATION I, GEOFFREY KAEUPER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: January 9, 2015