The People, Appellant,v.Terrance L. Mack, Respondent.BriefN.Y.September 10, 2015Brief Completed: September 29, 2014 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, -vs- TERRANCE L. MACK, Appellant, Defendant-Respondent. BRIEF FOR APPELLANT 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 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED STATEMENT OF FACTS POINT I CONCLUSION It is not a mode of proceedings error to accept a verdict after the jurors impliedly rescind a previous request by stating that they have reached a verdict. A. B. The court did not err in taking the verdict. Even if it was error to take the verdict, it was not a mode of proceedings error that evades the preservation rule. - i - ii 1 2 7 7 10 15 TABLE OF AUTHORITIES CASES People v Albanese, 45 AD3d 691 (2d Dept 2007), lv denied 10 NY3d 761 (2008) ........ 8, 10 People v Alcide, 21 NY3d 687 (2013) .......... . .............................. 12, 13 People v Aleman, 12 NY3d 806 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 People v DeRosario, 81 NY2d 801 (1993) ......................................... 12 People v Dekle, 56 NY2d 835 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v Fuentes, 246 AD2d 474 (1st Dept 1998), lv denied91 NY2d 941 (1998) .. .. .. . 8, 10 People v Ippolito, 20 NY3d 615 (2013) ........................................... 12 People v Kadarko, 14 NY3d 426 (20 1 0) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v Lourido, 70 NY2d 428 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v Mack, 117 AD3d 1450 (4th Dept 2014) .................................... 6 People v Middleton, 54 NY2d 42 (1981) .. .. . .. .. . . . .. . . . . . . . .. . .. .. . .. . . . .. . .. .. . 13 People v O'Rama, 78 NY3d 270 (1991) .......... .... .......... ....... ......... 11, 12 People v Ramirez, 15 NY3d 824 (2010) ........................................... 12 People v Sorrell, 108 AD3d 787 (3d Dept 2013), /v denied_NY3d_ (June 10, 2014) ... 8, 10 People v Starling, 85 NY2d 509 ( 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 STATUTES CPL 310.30 . . .... ......................... . .. .. ............ .... ....... . ... 7, 11 Penal Law § 120.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 -11- 1. Question: Answer of the Trial Court: Answer of the QUESTIONS PRESENTED When a jury has sent out a note indicating that it has reached a verdict, is the court required to respond to any previous requests that are outstanding before accepting the jury's verdict even if the defense has no objection to accepting the verdict? No. The trial court accepted the verdict. Appellate Division: Yes. The Appellate Division held that it was error not to respond to requests for reinstruction on reasonable double and on the importance of one versus multiple witnesses. 2. Question: Does the preservation rule apply to a claim that the trial court erred in accepting a jury verdict without first responding to prior requests that have been impliedly withdrawn by the note indicating that the jury has reached a verdict? Answer of the Trial Court: Not addressed. Answer of the Appellate Division: No. The Appellate Division found that this constituted a "mode of proceedings" error that does not require preservation. 1 STATEMENT OF FACTS Defendant Terrance L. Mack was convicted, upon a jury verdict rendered on May 8, 2009, of gang assault in the first degree (Penal Law§ 120.07) in Monroe County Court (Hon. Frank P. Geraci, J.) (Record [hereinafter "R"] 544). The trial evidence showed that Latasha Shaw was beaten and stabbed to death by a large group of people. Megan Torres identified defendant as a participant in the attack and testified to seeing him hit the victim with a bottle (R 143-144). Ronaldo Donald, a fellow inmate, testified to incriminating statements defendant made to him (R 230-231 ). In his defense, defendant presented testimony from various witnesses claiming that defendant was not present for the attack. The nature and strength of the trial evidence is not in issue before this Court. Jury Deliberations The jury began its deliberations at 12:30 P.M. (R 527). At 2:19P.M., the court reconvened with counsel and defendant present and read a note from the jury (R 528-529). The note requested: "1. Smoke break for Juror Number 2 and Juror Number 1 0; 2. Megan's testimony- all; 3. 911 tape from Latasha' s cell phone; 4. Ronaldo's testimony- direct; 5. Chamette Grayson's testimony- all; 6. Crime scene - actual evidence of bat" (R 529). 2 The court proposed to provide read backs of the requested testimony, to play the 911 tape, to provide a photograph of the bat to the jury, and to give a smoke break after the readbacks (R 529). Both attorneys agreed to that proposal, and the jury was brought out (R 529-530). After reading the note for the jury, the Court Reporter began to read the testimony (R 530). At approximately 3:50P.M., at defense counsel's request, the Court took a break to "give the Reporter a chance to catch her breath" (R 531 ). When the Court, counsel, and defendant reconvened at 4:13P.M., the Court explained that the jury had sent out another note and then read its contents (R 531 ). The note requested: "1. Amend previous request ofRonaldo Donald to readjust the conversation between Mack and Donald about why he was in custody and what happened in this situation only; 2. Rescind request for Charnette Grayson's testimony" (R 531). The Court expressed an intention to honor the second request and, as to the first, to read the entire direct testimony of Donald (R 531-532). The attorneys agreed to that proposal (R 532). After further discussion of the earlier request for evidence of the bat, the Court agreed to provide the jury with the actual pieces of the bat (R 533). The jury then returned to the courtroom, the Court read the 3 second note, and the Court Reporter proceeded with the readbacks (R 533-534). After the 911 tape was played, the Court provided a smoke break (R 534-535). The Court thereafter reconvened to address a note from one of the alternate jurors (R 535). The alternate jurors were released (R 536-537). At 5:42P.M., the court received a third note from the deliberating jurors. The note posed two questions: "1. How late are we allowed to deliberate tonight? 2. What is protocol for a deadlock? Problem: We are deadlocked" (R 53 7). The court proposed to tell the jury that there was no time limit on deliberations and to "simply reread the charge I read earlier regarding deliberations that they are to discuss the matter with each other" (R 538). "My plan would be at this point to read that to them again and to have them order dinner. We will take a break, and then we will come back. I would expect to hold them to approximately nine o'clock tonight, because then they have been here almost twelve hours, and at that point break for the evening, sequester the jury and resume tomorrow morning" (R 538). Both counsel agreed to that procedure (R 538). When the jury returned to the courtroom, the court read the note and then responded as it had proposed (R 539-540). The jury returned to deliberations at 6:02P.M. (R 540). 4 The court then informed counsel: "With this being a Friday night, it is going to take some t ime possibly to get them their dinner. I would expect that we could stand in recess until at least 7:30. So, Counsel can remain unavailable until 7:30 p.m. We will reconvene at 7:30. If they come out with any questions or concerns between now and then, we will address them at 7:30" (R 540). The proceedings reconvened at 7:51 P.M., at which time three notes were marked as court exhibits (R 540). The first note asked for the "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" (R 541 ). The second note asked "[t]o hear Megan Torres' testimony regarding [defendant] leaving of the crime scene" and asked for more request sheets (R 541 ). The third note requested a smoke break (R 541 ). The court proposed to reread the two requested instructions and to inform the jury that there was no testimony from Torres (R 542). While the court was proposing responses to the three notes, the Court Deputy handed up another note (R 542). The court asked counsel to approach, and then took a recess from 7:54 to 8:10P.M. (R 542). When the proceedings resumed, the court stated that "[t]he jury has indicated they have reached a verdict, so we will bring the jury out shortly to have them announce the verdict" (R 543). The 5 defense voiced no objection to doing so. Verdict & Sentencine When the jury reentered the courtroom, it returned a verdict of guilty (R 544). The jury was then poled, and all jurors agreed with that verdict (R 544-545). Defendant was thereafter sentenced to a determinate term of incarceration of 25 years with 5 years of post-release supervision. The Decision of the Appellate Division By a vote of four to one, the Appellate Division, Fourth Department, reversed defendant's conviction and granted a new trial. The Appellate Division found that County Court erred in accepting the jury's verdict without first responding to three notes that had been sent out prior to the note in which the jury announced that it had reached a unanimous verdict (People v Mack, 117 AD3d 1450 [4th Dept 2014]). Notwithstanding that no objection was raised in the trial court, the Appellate Division reached its conclusion as a matter of law on the ground that County Court's action constituted an error affecting the mode of proceedings for which preservation is not required. The dissenting Justice at the Appellate Division granted the People leave to appeal to the Court of Appeals (R 4). 6 POINT I It is not a mode of proceedings error to accept a verdict after the jurors impliedly rescind a previous request by stating that they have reached a verdict. In the absence of any objection by the defense, it was not reversible error for the trial court to accept the verdict. The jury, by stating that it had reached a verdict before the court responded to the outstanding requests, impliedly withdrew those requests. The court, therefore, had discretion to accept that implied withdrawal and take the verdict without further instruction or inquiry. But even if the court lacked that discretion, the defense needed to object to the court's proposed action in order to preserve the issue as a matter of law. The exception to the preservation requirement for errors that affect the mode of proceedings proscribed by law does not apply here. A. The court did not err in taking the verdict. When the jury requests information, the trial court must give "such requested information or instruction as the court deems proper" (CPL 31 0.30). Thus, the statute vests the court with a measure of discretion in its response, which "must be tailored to the circumstances at hand" (People v Aleman, 12 NY3d 806 [2009]). Under the circumstances here, where the earlier requests were impliedly withdrawn by the announcement of a unanimous verdict, the court did not abuse 7 its discretion in accepting the verdict. Just as a court need not respond to a request that the jury has explicitly withdrawn, so it need not respond to a note that has been impliedly withdrawn by the jury reaching a unanimous verdict. Had the defense raised any objection to accepting the verdict, it might have been error to overrule the objection. In People v Lourido (70 NY2d 428 [ 1987]), after requesting a read back of certain cross-examination testimony but before the readback could be provided, the jury announced that it had reached a verdict (id. at 432). The trial court denied the defense's request that the court "inquire whether the jury wanted the requested sections of cross-examination testimony read before delivering a verdict" (id. ). The jury then returned a verdict convicting the defendant of some charges and acquitting him of others (id. at 433). This Court found that to be error (id. at 435). But here there was no objection to the court accepting the verdict. In similar circumstances, the First, Second, and Third Departments of the Appellate Division have each held that a jury can impliedly withdraw outstanding requests by sending out a note stating that it has reached a verdict (People v Sorrell, 108 AD3d 787,793 [3d Dept 2013], lv denied_NY3d _[Jun. 10, 2014]; People v Albanese, 45 AD3d 691, 692 [2d Dept 2007], lv denied 10 NY3d 761 [2008]; People v Fuentes, 246 AD2d 474,475 [1st Dept 1998], lv denied 91 NY2d 941 8 [1998]). In each ofthose cases, where the defense raised no objections, there was no reversible error in the courts accepting jury verdicts without responding to impliedly withdrawn jury notes. The Fourth Department here likewise accepted the principle that a jury can impliedly withdraw some requests for information. But it drew a novel distinction. It found that such implied withdrawal could apply only to "the factual issue" regarding the eyewitness testimony. That request for a readback could be resolved without further instruction. The Appellate Division, however, believed that the requests for read backs of the instructions on reasonable doubt and on the importance of single versus multiple witnesses demonstrated confusion about crucial issues that could not be resolved without guidance from the court (R 2). Thus, according to the Fourth Department, implied withdraw applies, but only to jury requests of a "factual" nature. But that distinction has no basis in logic and relies on blind speculation. There is no reason to believe a jury is any less able to resolve disputes about the law than they are disputes about the facts. And disagreements over facts are surely as important to the outcome of a trial as disagreements over law. Thus, there is no reason to treat differently the scope of the court's discretion in accepting the implied withdrawal of a jury request based upon the nature of the request. 9 Accordingly, in the absence of any objection by the defense, the court did not abuse its discretion in allowing the implied withdrawal without further inquiry and in accepting the jury's verdict. Allowing the implied withdrawal was an appropriate exercise of discretion here. B. Even if it was error to take the verdict, it was not a mode of proceedings error that evades the preservation rule. Even if it was error to take the verdict, it was not a mode of proceedings error that evades the preservation rule. The defense had full knowledge of the exact contents of the outstanding jury notes, as well as full knowledge of the court's proposed response to the note indicating that the jury had reached a verdict. Nevertheless, the defense did not object to the court taking the verdict without responding to those outstanding notes. Indeed, as the dissenter at the Appellate Division pointed out, there was an off-the-record sidebar discussion during which defense counsel "may well have consented" to the court's intended procedure (R 3). Therefore, because the defense had a meaningful opportunity for input into the court's responses, there could not have been any error affecting the mode of proceedings proscribed by law such as would evade the preservation rules.' The policy behind the "mode of proceedings" exception to preservation 1 The other Departments of the Appellate Division have held that preservation is required (People v Sorrell, 108 AD3d 787,793 [3d Dept 2013], lv denied _ NY3d _[Jun. 10, 2014]; People v Albanese, 45 AD3d 691,692 [2d Dept 2007], lv denied 10 NY3d 761 [2008]; People v 10 rules does not apply here. Moreover, to hold otherwise would encourage gamesmanship and deprive the trial court of the opportunity to address a claim of error when it could easily be corrected. When a deliberating jury requests further instruction or information, "the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper" (CPL 31 0.30). Thus, CPL 310.30 "imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond" (People v O'Rama, 78 NY3d 270,276 [1991]). In 0 'Rama, this Court outlined the procedure to be followed in order for trial courts to fulfill these two duties. The jury's requests "must generally be submitted in writing," and, once received by the Judge, the written communication "should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel" (id. at 277-278). Next, "counsel should be afforded a full opportunity to suggest appropriate responses" (id. at 278). "Finally, when the jury is returned to the courtroom, the communication should be read in open court" before the Judge responds to it (id. ). Fuentes, 246 AD2d 474,475 [1st Dept 1998], lv denied91 NY2d 941 [1998]). 11 Where the trial court fails to give counsel notice of the specific content of the jury note, the general rule of preservation does not apply. Because failing to give such notice "ha[s] the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial," it constitutes a "mode of proceedings" error that presents a question of law notwithstanding the absence of objection from the defense (id. at 279). On the other hand, where counsel is made aware of the specific content of the note and has a meaningful opportunity for input as to how the court responds, preservation is required to raise an issue of law regarding the 0 'Rama procedure (see 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 such cases, the policy behind the "mode of proceedings" exception to preservation is not implicated as the defense is not prevented from meaningfully participating in the process. Here, the defense had knowledge of the contents of each outstanding note, had knowledge of the contents of the note indicating that a verdict had been reached, and had knowledge of the court's intention of taking the verdict without responding to the outstanding notes. The defense, however, "failed to object at that time, when the error could have been cured" (People v Ramirez, 15 NY3d 12 824, 826 [201 0]). "If defense counsel considered the judge's intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so, (Alcide, 21 NY3d at 694 [citation omitted]). Moreover, just as the policy behind the mode of proceedings exception is not implicated here, the policy behind the preservation rule applies with special force. The preservation rule serves, in part, to prevent gamesmanship in the trial process (see People v Dekle, 56 NY2d 835, 837 [1982]; People v Middleton, 54 NY2d 42, 49 [ 1981 ]). That danger is particularly acute here. If taking the verdict under these circumstances constituted a mode of proceedings error, the defense would have every incentive to take its chances with the verdict. With an acquittal, the defendant goes free; with a conviction, the defendant would get an automatic reversal. Inasmuch as the defense here had a full opportunity meaningfully to participate in the court's handling of the jury notes, the decision not to object to the court taking the verdict was clearly a matter of strategy. The defense made a calculation that the jury had likely resolved any difficulties it previously had in defendant's favor. Had the defense believed that responding to the outstanding notes would re-instill doubt in the minds of jurors who were then unanimous in a guilty verdict, the defense could have objected and asked that the court respond to 13 those notes. The defense chose instead not to object, with the hope that the jury had settled on an acquittal. Having made this strategic choice, the defense should not be heard to complain about it on appeal. 14 CONCLUSION The order of the Appellate Division should be reversed and the judgment of conviction reinstated. Dated: September 29, 2014 15 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Assistant Distri t Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Cynthia A. Bellucco , 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 29TH day of September, 20 14, deponent served three (3) copies of the Brief For Appellant and Appendix, upon Amanda L. Houle, Esq., attorney for Respondent in this action, at Sullivan and Cromwell, LLP , 125 Broad Street, New York, New York 10004-2498, by depositing true copies ofthe same, enclosed in a postpaid properly addressed wrapper, under the exclusive care and custody of Federal Express. CWfk·/l f6u/u.M iJ: CTHIA A. BELLUCCO Sworn to before me this 29th day of September, 2014. JEANNE T. HEllER •OTARY PUBLIC. St.ale ol N.Y 3 ~~ _ f commission Expwas D S\ · (A.J\ ~ STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- TERRANCE L. MACK, CPLR 2105 CERTIFICATION Defendant-Respondent. I, Geoffrey Kaeuper, ESQ., certify that I am an attorney admitted to practice in the State of New York, that I compared the documents contained in Appellant's Appendix to the identical records contained in the stipulated Appendix before the Fourth Department, and that they are true, accurate, and complete copies of the same. DATED: September 29, 2014 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- PDF CERTIFICATION TERRANCE L. MACK, Defendant-Respondent. 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: September 29, 2014