The People, Appellant,v.Kenneth Nealon, Respondent.

Brief

N.Y.September 10, 2015

To be argued by KENDRA L. HUTCHINSON (30 minutes) Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, Appellant, - against – KENNETH NEALON, Defendant- Respondent. BRIEF FOR DEFENDANT-RESPONDENT LYNN W. L. FAHEY KENDRA L. HUTCHINSON Attorneys for Defendant-Respondent 111 John Street, 9th Floor New York, N.Y. 10038 T: (212) 693-0085 F: (212) 693-0878 April 30, 2015 APL-2014-00219 i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT ..................................................................... 1 QUESTIONS PRESENTED ........................................................................... 2 SUMMARY OF ARGUMENT ....................................................................... 3 STATEMENT OF FACTS .............................................................................. 8 Introduction ........................................................................................... 8 The Trial Evidence ................................................................................ 9 The Jury Charge, Deliberations and Verdict ....................................... 10 The Appeal .......................................................................................... 14 ARGUMENT ................................................................................................. 21 POINT I AS THE APPELLATE DIVISION CORRECTLY HELD, THE TRIAL COURT’S FAILURE TO DISCLOSE THE CONTENTS OF SUBSTANTIVE NOTES REQUIRING COUNSEL’S INPUT OR TO AFFORD COUNSEL THE OPPORTUNITY TO PROVIDE INPUT ON THE RECORD, PRIOR TO ACTUALLY RESPONDING IN A MANNER THAT DID NOT REPEAT THE FINAL CHARGE WITH THE JURY ALREADY PRESENT, WAS A MODE OF PROCEEDINGS ERROR, FOR THIS PROCEDURE UNFAIRLY SURPRISED COUNSEL AND ENTIRELY PREVENTED MEANINGFUL PARTICIPATION ........................... 21 ii POINT II THE ISSUES OF RESETTLEMENT AND RECONSTRUCTION ARE UNAPPEALABLE AND UNREVIEWABLE IN THIS CASE; IN ANY EVENT, BECAUSE A TRIAL COURT IS OBLIGATED TO MAKE A CONTEMPORANEOUS RECORD OF ITS COMPLIANCE WITH O’RAMA, THE APPELLATE DIVISION ACTED WELL WITHIN ITS DISCRETION IN REFUSING TO CONSIDER THE UNTIMELY “RESETTLEMENT” FINDINGS OR “RECONSTRUCT” THE RECORD .................................................................................... 47 CONCLUSION .............................................................................................. 63 iii TABLE OF AUTHORITIES CASES Dalrymple v. Williams, 63 N.Y. 361 (1875) ................................................. 53 Krulewitch v. United States, 336 U.S. 440 (1949) ........................................ 30 People v. Adkinson, 88 N.Y.2d 561 (1996) ............................................. 54,57 People v. Alcide, 21 N.Y.3d 687 (2013) ................................................passim People v. Ciaccio, 47 N.Y.2d 431 (1979) ...................................................... 43 People v. Cona, 49 N.Y.2d 26 (1979) ........................................................... 46 People v. Cook, 85 N.Y.2d 928 (1995) ....................................... 5,25,29,39,41 People v. Cruz, 14 N.Y.3d 814 (2010) .............................................. 23,60-61 People v. DeRosario, 81 N.Y.2d 801 (1993) ................................................. 27 People v. Fenton, 105 A.D.3d 1057 (2d Dep’t 2013) ................................... 17 People v. Gallina, 66 N.Y.2d 52 (1985) ........................................................ 50 People v. Gammon, 19 N.Y.3d 893 (2012) ................................................... 53 People v. Gerrara, 88 A.D.3d 811 (2d Dep’t 2011) ...................................... 32 People v. Gruttola, 43 N.Y.2d 116 (1977) .................................................... 49 People v. Herman L., 83 N.Y.2d 958 (1994) ............................................. 2,51 People v. Ippolito, 20 N.Y.3d 615 (2013) ..................................................... 37 People v. Kisoon, 8 N.Y.3d 129 (2007) ...................................... 3,22,24,26,40 People v. LaSalle, 95 N.Y.2d 827 (2000) ................................................ 2,6,51 iv People v. Lockley, 84 A.D.3d 836 (2d Dep’t 2011) ................................ 18,32 People v. Mays, 20 N.Y.3d 969 (2012) .............................................. 3,5,27,37 People v. McRay, 51 N.Y.2d 594 (1980) ...................................................... 49 People v. Michalek, 82 N.Y.2d 906 (1994) ................................................ 7,59 People v. Minaya, 54 N.Y.2d 360 (1981) ................................................... 6,53 People v. Nealon, 116 A.D.3d 886 (2d Dep’t 2014) ..............................passim People v. Ochoa, 14 N.Y.3d 180 (2010) ....................................... 3,5,28,31,37 People v. O’Rama, 78 N.Y.2d 270 (1991) .............................................passim People v. Paz, 158 A.D.2d 1008 (4 th Dep’t 1990) ......................................... 51 People v. Powell, 101 A.D.3d 756 (2d Dep’t 2012) ...........16-18,54-55,57-58 People v. Ramirez, 15 N.Y.3d 824 (2010) ................................................. 5,36 People v. Richardson, 100 N.Y.2d 847 (2003) .......................... 7,47,53-54,57 People v. Santorelli, 95 N.Y.2d 412 (2000) .......................................... 6,51,59 People v. Silva, 24 N.Y.3d 294 (2014) ...................................................passim People v. Starling, 85 N.Y.2d 509 (1995) ............................................. 5,19,35 People v. Tabb, 13 N.Y.3d 852 (2009) ................................................ 24,38,39 People v. Thomas, 115 A.D.3d 995 (2d Dep’t 2014) .................................... 32 People v. Velasquez, 1 N.Y.3d 44 (2003) ........................................ 7,15,17,59 People v. Walston, 23 N.Y.3d 986 (2014) .............................................passim v People v. Williams, 21 N.Y.3d 932 (2013) ............................................passim People v. Wright, 56 N.Y.2d 613 (1982) ...................................................... 53 People ex rel. Hirschberg v. Orange Co. Court, 271 N.Y. 151 (1936) ......... 53 United States v. Ronder, 639 F.2d 931 (2d Cir. 1981) .................................. 24 Van Valkenburgh v. Bourne, 26 A.D.2d 727 (3d Dep’t 1966) ..................... 55 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. VI ................................................................................. 23 U.S. Const., Amend. XIV .............................................................................. 23 N.Y. Const., Art. I, § 6................................................................................... 23 N.Y. Const., Art. VI, § 39 ........................................................................ 2,6,48 STATUTES Civil Practice Law & Rules § 5525 .................................................. 6,14,15,52 Criminal Procedure Law § 310.30 .............................. 3,5,9,23,26,34,45,57,58 Criminal Procedure Law § 440.10 ................................................................. 55 Criminal Procedure Law § 450.90 ................................................................... 2 Criminal Procedure Law § 470.35 ........................................................ 2,49-50 Penal Law § 120.05 ......................................................................................... 1 Penal Law § 160.10 ......................................................................................... 1 Penal Law § 160.15 ......................................................................................... 1 vi Penal Law § 165.40 ......................................................................................... 1 OTHER Arthur Kargar, The Powers of the New York Court of Appeals (3d ed. 2005) ........................................................................................ 50 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KENNETH NEALON, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted August 15, 2014, the People appeal from an order of the Appellate Division, Second Department, entered April 16, 2014, reversing a judgment of the Supreme Court, Queens County, rendered September 21, 2009, convicting Kenneth Nealon, after a jury trial, of robbery in the first and second degrees [P.L. §§ 160.10(1) & 160.15(1)], assault in the second degree [P.L. § 120.05(6)], and criminal possession of stolen property in the fifth degree [P.L. § 165.40], and sentencing him to concurrent terms of incarceration of 20 years, 10 years, 7 years, and 1 year, respectively, to be followed by 5 years of post-release supervision. 2 On September 11, 2014, this Court granted Mr. Nealon poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. Mr. Nealon is currently released on bail. This Court has jurisdiction pursuant to C.P.L. § 450.90(1) to review the trial court’s failure to disclose the contents of the jury notes to defense counsel, which is a mode of proceedings error. People v. O’Rama, 78 N.Y.2d 270 (1991). It does not have jurisdiction to review that portion of the intermediate court’s decision that granted respondent’s motion to strike portions of appellant’s brief that were dehors the record, as the Court has no independent fact-finding power, this issue was not the “basis” of the reversal and the People are the appellant on appeal, and the Appellate Division’s decision was in the exercise of discretion. N.Y. Const. Art. VI, § 39(a); C.P.L. § 470.35(2); People v. LaSalle, 95 N.Y.2d 827, 829 (2000); People v. Herman L., 83 N.Y.2d 958, 959-60 (1994). QUESTIONS PRESENTED 1. Whether the Appellate Division correctly held that the trial court’s failure to disclose the contents of substantive notes requiring counsel’s input or to afford counsel the opportunity to provide input on the record, prior to actually responding in a manner that did not repeat the final charge with the jury already present, was a mode of proceedings error, for this procedure unfairly surprised counsel and entirely prevented meaningful participation. 3 2. Whether the issues of resettlement and reconstruction are unappealable and unreviewable in this case; in any event, whether because a trial court is obligated to make a contemporaneous record of its compliance with O’Rama, the Appellate Division acted well within its discretion in refusing to consider the “resettlement” findings or “reconstruct” the record. SUMMARY OF ARGUMENT (I) In order to effectuate the C.P.L. § 310.30 requirement of “meaningful notice” of a deliberating jury’s request, the Court has adopted a specific procedure designed to “ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response.” People v. Kisoon, 8 N.Y.3d 129, 134 (2007). See People v. O’Rama, 78 N.Y.2d 270, 277 (1991). Those deviations from the O’Rama protocol that violate a court’s “core responsibility” under the statute are mode of proceedings errors, immune from preservation. O’Rama, 78 N.Y.2d at 279. In this regard, the Court’s O’Rama decisions have always turned on whether the jury communication at issue required a substantive response as to which the parties could be expected to provide input. See, e.g., People v. Mays, 20 N.Y.3d 969, 971 (2012); People v. Ochoa, 14 N.Y.3d 180, 188 (2010). 4 In Mr. Nealon’s case, the deliberating jury sent multiple notes expressing confusion about the “difference” between the two different robbery charges, asking whether first-degree but not second-degree robbery “includes” “assault,” and separately asking whether the “degree of injury” “counts” toward “1 st or 2 nd degree.” The trial court only disclosed these notes on the record after the jury had already returned to the courtroom. Without pause, it then immediately launched into extemporaneous responses that did not merely repeat the final charge, and, inter alia, oversimplified and highlighted some elements of the crimes, but failed to mention others. As the Appellate Division correctly held, the trial court’s handling of these notes constituted a violation of its “core responsibility” under O’Rama. In the context of Mr. Nealon’s case and the multiple robbery and assault charges he faced – the first-degree robbery required “serious physical injury,” the second-degree assault required “physical injury,” and the second-degree robbery required no injury finding at all – these notes were substantive and required a “substantive response,” as to which counsel should have been afforded the opportunity to provide input. Since the trial court’s deviation from O’Rama prevented counsel from participating in this “critical postsubmission proceeding,” O’Rama, 78 N.Y.2d at 277, the court 5 failed to give meaningful notice of these notes under C.P.L. § 310.30. See People v. Cook, 85 N.Y.2d 928 (1995). The People’s arguments to the contrary are unavailing. They fail to appreciate that the core motivation of O’Rama and its progeny is “to maximize participation by counsel at a time when counsel’s input is most meaningful.” People v. Silva, 24 N.Y.3d 294, 299 (2014) (quoting People v. Alcide, 21 N.Y.3d 687, 692 (2013)). They ignore the fact that this Court has always drawn a critical distinction between ministerial and substantive notes in deciding whether preservation is required, and defined substantive notes as those requiring a “substantive response,” Mays, 20 N.Y.3d at 971, as to which “counsel could have provided a meaningful contribution.” Ochoa, 14 N.Y.3d at 188. And they do not recognize that the Appellate Division’s holding is entirely based on this Court’s jurisprudence, which has only explicitly upheld this type of truncated O’Rama procedure in cases involving notes that do not require a “substantive response.” See, e.g., People v. Williams, 21 N.Y.3d 932 (2013); Alcide, 21 N.Y.3d 687; People v. Ramirez, 15 N.Y.3d 824 (2010); People v. Starling, 85 N.Y.2d 509 (1995). Accordingly, this Court should affirm the Appellate Division’s decision. 6 (II) The People’s claims regarding “resettlement” and “reconstruction” are unappealable and unreviewable in this Court. The Appellate Division did not consider or pass on the accuracy of the trial court’s factual findings, and this Court has no independent fact-finding power to do so itself. N.Y. Const., Art. VI, § 39(a). Moreover, the propriety of resettlement was not the “basis” of the reversal and the People, as appellant, may not urge it as an alternative ground for reinstating the conviction. See C.P.L. § 470.35(2). Finally, the Appellate Division’s decision to strike the off-the-record “resettlement findings” from the People’s brief is an unreviewable discretionary decision, as is its decision as to the corrective relief it employed in Mr. Nealon’s case. Id.; People v. LaSalle, 95 N.Y.2d 827, 829 (2000); People v. Santorelli, 95 N.Y.2d 412, 424 (2000); People v. Herman L., 83 N.Y.2d 958, 959-60 (1994). Nor can it be said that the Appellate Division abused its discretion as a matter of law. The People’s resettlement motion was untimely under C.P.L.R. § 5525(c). More importantly, resettlement does not lie to “cure” a judge’s failure to follow the O’Rama procedure. Resettlement is only appropriate to correct modest mistakes or clerical errors. People v. Minaya, 7 54 N.Y.2d 360, 364 (1981). It is not available to “correct the record” if the judge fails to discharge an affirmative obligation imposed by law. See People v. Richardson, 100 N.Y.2d 847, 852 (2003). Since there is “an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama,” Silva, 24 N.Y.3d at 300, a judge may not employ resettlement to obviate the very error it perpetuated in failing to discharge its duty. The same considerations apply as to reconstruction. People v. Velasquez, 1 N.Y.3d 44, 49 (2003); cf. People v. Michalek, 82 N.Y.2d 906, 907 (1994). Applying anything other than the bright-line rule of People v. Silva and People v. Walston, 23 N.Y.3d 986 (2014) – that a judge must make a contemporaneous record of O’Rama compliance – would fundamentally disrupt appellate procedure. It would permit both the prosecution and the defense to create entire new portions of the appellate record that never existed in the first place. It would foster endless litigation in the trial and intermediate courts. And it would gut the very meaning of O’Rama. Accordingly, the Appellate Division was well within its discretion in refusing to consider the purported resettlement findings or order reconstruction. 8 Accordingly, this Court should not reach the merits of this issue or, at a minimum, it should affirm the Appellate Division’s decision to strike portions of the People’s brief. STATEMENT OF FACTS Introduction Respondent Kenneth Nealon was charged with first-degree robbery, second-degree assault, and lesser related counts. The prosecution witnesses testified at trial that Mr. Nealon and an accomplice robbed the complainant of money and property late one night while pretending to be police officers, and then punched and kicked him. Arriving police officers testified that Mr. Nealon fled from them and, when apprehended, possessed one of the cell phones stolen from the complainant. The court submitted to the jury first-degree robbery (causing serious physical injury), second-degree robbery (aided by another actually present), second-degree (felony) assault (physical injury), and fifth-degree criminal possession of stolen property. During deliberations, the jury sent three notes: the first asked for the “difference between robbery in the 1st degree and 2nd degree”; the second stated, “Please reinstruct us on all 4 charges”; and the third requested that the court “[c]larify if 1st count robbery in first degree includes assault and 2nd count robbery in second degree doesn’t 9 include assault,” and then separately asked, “[d]oes the degree of injury count towards 1st or 2nd degree?” The court did not place the contents of the notes on the record prior to recalling the jury, and did not create a record of having done so in an unrecorded colloquy. It read the notes on the record for the first and only time with the jury present. Thereafter, it immediately responded in a manner that went beyond re-reading instructions it had already given. It did not place on the record its proposed responses prior to delivering them to the jury, even those responses that did not track the statutory language or constitute a reiteration of the final charge. The jury found appellant guilty of the charged offenses shortly thereafter. On appeal, citing and quoting, inter alia, numerous Court of Appeals cases, including both People v. Williams, 21 N.Y.3d 932 (2013), and People v. Alcide, 21 N.Y.3d 687 (2013), the Appellate Division reversed the judgment of conviction due to the trial court’s failure to comply with it core responsibilities under C.P.L. § 310.30 as to the jury notes at issue, all of which required a substantive response. The Trial Evidence Around 1:00 a.m. on September 19, 2007, two men approached complainant Ranjiv Kumar Setia near 76th Street and Woodside Avenue in 10 Queens, told him they were undercover officers, and “frisked” him, taking $50, two cell phones, and a Metrocard in the process. After the theft, Mr. Setia began to protest and accuse the two of not being officers. Mr. Setia and bystander Eric Scherbner, about 40 to 50 feet away, testified that one of the men, later identified as the co-defendant, punched Mr. Setia in the face several times, and the other, identified by Mr. Setia as Mr. Nealon, came to the co-defendant’s aid when Mr. Setia fought back, and elbowed, hit, and kicked Mr. Setia. Two police officers driving nearby testified that they arrived at the scene during the melee, and that Mr. Nealon walked down the street and was detained a block away, allegedly with one of Mr. Setia’s cell phones in his pocket. The parties stipulated that an officer examined Mr. Nealon’s hands and saw no contusions or cuts. Mr. Setia was treated at the hospital for pain and bruising and released that day with instructions to have a damaged tooth pulled, which he failed to do. Jury Charge, Deliberations, and Verdict The court submitted to the jury first-degree robbery (caused serious physical injury), second-degree robbery (aided by another actually present), second-degree (felony) assault (caused physical injury), and fifth-degree criminal possession of stolen property. 11 After the court delivered the final charge and heard the parties at sidebar as to objections, the jury retired to commence deliberations (A-9). 1 Thereafter, the jury sent two notes: one written at 3:25 p.m., asking “difference between robbery in the 1st degree and 2nd degree” (A-5); and another, written at 3:30 p.m., stating, “Please reinstruct us on all 4 charges” (A-6). The court did not disclose the contents of the notes on the record or inform the parties of its proposed response on the record prior to recalling the jury and responding to the notes: (Whereupon, an off-the record discussion was held at sidebar.) (Whereupon, the items referred to were marked as Court’s Exhibits 2 and 3 by the Reporter.) THE COURT OFFICER: Ready for the jury? THE COURT: Yes, we are. (Whereupon, the jury entered the courtroom) (A-9). Following this, the court greeted the jury, read the notes into the record, and immediately responded: Jurors, let me clarify the first part. As you heard during the course of my narration, there are 1 Parenthetical references preceded by “A-” and “AD-” refer to Appellant’s appendix and addendum, respectively. 12 certain definitions for robbery one and two that pertain to what robberies are. You heard mentioned in fact as to robbery in the first degree that is in fact a robbery where there is an extra element, that element being the serious physical injury as opposed to robbery in the second degree which in fact has a person is actually present. So let me, if I may. That is the difference, but I am going to read all of them to you at one so you can again. As you may remember, I told you that in every case here the People are in fact contending that the defendant in fact acted in concert with another, and that’s the necessary element to be proven as to each of the charges herein (A-9-10). The court then re-read the accomplice liability instruction, the general robbery instruction defining “forcible stealing,” and the four charged counts (A-10-22). After the jury again retired to deliberate, defense counsel protested a matter regarding the complainant’s medical records not at issue on appeal. The court stated it could resolve the matter “off the record,” and “an off-the-record discussion was held at sidebar” (A-22). The jury sent another note written at 4:12 p.m., stating, “Clarify if 1st count robbery in first degree includes assault and 2nd count robbery in second degree does not include assault,” and, in a separate paragraph, asking, “Does the degree of injury count towards 1st or 2nd degree?” (A-7). The court again did not disclose the contents of the note on the record or 13 inform the parties on the record of its proposed response prior to recalling the jury: THE CLERK: Calling case on trial, Kenneth Nealon, Indictment 608 of 2008, let the record reflect defendant and all noted attorneys are present. Please so mark this. (Whereupon, the item referred to was marked as Court’s Exhibit 4 for identification by the Reporter.) COURT OFFICER: Ready for the jury. THE COURT: Yes, please * * * COURT OFFICER: Step in. (Whereupon, the jury entered the courtroom.) (A-22-23). The court then read the notes into the record for the first time and immediately responded: You have before the Court in your presentation four counts: Robbery in the first degree, robbery in the second degree, assault in the second degree, as well as criminal possession of stolen property. The first count of robbery includes serious physical injury. There is no injury count in the assault. In the robbery in the second degree, there is another, however, only one count of assault in the second and that has physical injury. So if you asked was it changed regarding the degree of the 14 injury, first count has serious physical injury, the first count, robbery, and the assault in the second degree has physical injury. Unless you need further clarification, that’s where we are (A-24). Following this, the record notes the foreperson stating, “I think you answered our question,” and the jury retired again to deliberate (A-24). In a note written at 5:20 p.m. (A-8), the jury announced it had reached a verdict, and convicted appellant of all counts. The Appeal In a brief filed on April 16, 2012, in the Appellate Division, Second Department, Mr. Nealon argued, inter alia, that the court failed to afford him meaningful notice of the jury notes and committed a mode of proceedings error under People v. O’Rama, 78 N.Y.2d 270 (1991), by failing to afford him notice of these substantive notes’ contents and the court’s response on the record prior to responding to them with the jury present. When he filed his brief, he served upon the People a complete, certified copy of the minutes transcribed by the court reporter. On August 3, 2012, 109 days later, the People filed a motion “to resettle the record” in Supreme Court, relying on C.P.L.R. § 5525(c), and an attached affirmation of the trial prosecutor recounting that he had reviewed the minutes of the deliberations and specifically “recalled[ed] [the trial 15 judge] showing defense counsel and me jury notes two, three, and four” (A- 29-30) Mr. Nealon opposed the People’s purported resettlement motion on several grounds: the motion was plainly untimely under C.P.L.R. § 5525(c), which requires a party to raise its proposed amendments to the minutes within 15 days of receipt; “resettlement” of the transcript of a criminal matter applies only to clerical errors or inadvertent mistakes, and does not lie to create or construct an entirely new portion of the appellate record that the parties and court, despite the absence of any impediment, simply neglected to make; and to the extent the People were actually seeking “reconstruction,” such a motion was to be directed to the Appellate Division and was, in any event, an improper remedy when the proceedings were deliberately left unrecorded and, therefore, “the record is simply insufficient to establish facts necessary to meet the [movant’s] burden,” quoting People v. Velasquez, 1 N.Y.3d 44, 49 (2003). In an October 2012 decision and order, Supreme Court granted the People’s motion without a hearing. Relying on the trial prosecutor’s recollection of the parties having been shown the notes, the court’s own “practice of doing so,” and the presence of unrecorded sidebars and exhibit- marking during deliberations, the court ordered “resettlement” “only to the 16 extent that the record reflects that the attorneys were shown the notes from the jury, but not as to any specific dialogue between the attorneys regarding the notes discussed at side-bar with the Court” (A-35). The People subsequently filed a brief in the Appellate Division, arguing that both the certified trial transcript and the “resettled record” ostensibly created by Supreme Court demonstrated that counsel had “meaningful notice” of the notes under O’Rama and, therefore, counsel was required to protest the trial court’s deviation from the protocol. Should the Appellate Division disagree, in lieu of reversal for a new trial, the People requested that it order the remedy of a remand for a reconstruction hearing. Mr. Nealon moved in the Appellate Division to strike those portions of the People’s brief involving the purported “resettlement” “findings” of Supreme Court. He relied on several Second Department cases confronting identical facts and holding, based on this Court’s decisions: . . . [R]esettlement is not an appropriate remedy under the circumstances presented here. It is well established that courts possess “‘inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth’ ” (People v Minaya, 54 NY2d 360, 364 [1981], cert denied 455 US 1024 [1982], quoting Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550-551 [1890]). Here, however, the People's resettlement motion did not seek to correct a mistake or error 17 that was clerical in nature, or to conform the record to the truth, but rather to create a new portion of the record, which could have been, but was not, created at trial. This is not a proper basis for a resettlement motion (see Van Valkenburgh v Bourne, 26 AD2d 727 [1966]). In any event, even if resettlement were an appropriate remedy, a showing that the contents of the jury note were revealed to counsel off the record would be of no avail to the People, since Court of Appeals case law interpreting CPL 310.30 contemplates that the procedure for complying with that statute will occur on the record. Specifically, the Court of Appeals has held that “whenever a substantive written jury communication is received by the Judge,” it should be “read into the record in the presence of counsel,” and that, “[a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses” (People v O'Rama, 78 NY2d at 277- 278). This procedure is designed to “ensure a clear and complete record, thereby facilitating adequate and fair appellate review” (id. at 278). People v. Powell, 101 A.D.3d 756, 759 (2d Dep’t 2012); see also, e.g., People v. Fenton, 105 A.D.3d 1057 (2d Dep’t 2013). Mr. Nealon also opposed the remedy of reconstruction, arguing both that it was untimely and inappropriate under People v. Velasquez, 1 N.Y.3d 44, for the reasons he had stated in his opposition to the People’s Supreme Court motion for “resettlement” and for the same reasons advanced by the Appellate Division in Powell as to resettlement. 18 The People opposed the motion to strike on the basis of the then- recently-decided People v. Williams, 21 N.Y.3d 932 (2013), argued that People v. Powell was wrongly decided, and pressed their request for a reconstruction hearing based on the “resettlement” “findings,” their reading of Velasquez, and their contention that they had been diligent in requesting a reconstruction hearing. The Appellate Division referred Mr. Nealon’s motion to strike to the panel of justices that would decide his appeal. Following this, the People were granted permission to file a supplemental brief in the Appellate Division based on this Court’s subsequently-decided decisions in People v. Williams and People v. Alcide, 21 N.Y.3d 687. In their supplemental brief, the People argued that Williams and Alcide held that a trial court’s failure to afford counsel notice of a note and its intended response prior to responding required defense objection so long as the court disclosed the note in full in the presence of the jury, and that these cases overruled a number of Second Department cases (see People v. Lockley, 84 A.D.3d 836 (2d Dep’t 2011) and progeny). Mr. Nealon filed a supplemental reply brief arguing that the holdings of Williams and Alcide further supported his argument that an O’Rama mode of proceedings error had occurred in his case, rather than the opposite. 19 He argued that both of these cases turned on the ministerial nature of the response required by the note at issue, since both cited, inter alia, People v. Starling, 85 N.Y.2d 509, 516 (1995), a case involving a simple, ministerial re-reading of the final charge. The Appellate Division had made precisely this distinction in its recent line of O’Rama cases, Mr. Nealon noted, a distinction that was thus fully in accord with this Court’s jurisprudence. He also reminded the Appellate Division that it – and this Court – had repeatedly rebuffed the People’s attempts to engraft off-the-record facts onto the appellate record in an attempt to “cure” O’Rama error. The Appellate Division reversed Mr. Nealon’s conviction and ordered a new trial, holding, in relevant part: Here, during deliberations, the jury sent out three notes to the trial court. Although the notes were marked as court exhibits, there is no evidence appearing on the face of the record that the trial court read the contents of the jury notes into the record and provided counsel a full opportunity to suggest appropriate responses (see People v. Gadson, 110 A.D.3d 1098; People v. Stocks, 101 A.D.3d 1049, 1051; People v. McGhee, 103 A.D.3d 667, 668; People v. Powell, 101 A.D.3d 756, 758–759). Rather, the record demonstrates that the Supreme Court violated the procedure set forth in O'Rama by reading the contents of the jury note for the first time in front of the jury and immediately providing a response (see People v. Gadson, 110 A.D.3d at 1098 [internal quotation marks omitted]; People v. Stocks, 101 A.D.3d at 1051; People v. McGhee, 103 A.D.3d at 668; 20 People v. Powell, 101 A.D.3d at 759; People v. Lockley, 84 A.D.3d 836, 838). Significantly, the jury's repeated requests for clarification of the difference between the counts of robbery in the first degree and robbery in the second degree within the context of this case required a “substantive response” (People v. Gadson, 110 A.D.3d at 1099; see People v. Stocks, 101 A.D.3d at 1051; People v. McGhee, 103 A.D.3d at 668; People v. Lockley, 84 A.D.3d at 838) rather than a merely “ministerial” one (People v. Lockley, 84 A.D.3d at 838; see e.g. People v. Alcide, 21 N.Y.3d at 694; People v. Ochoa, 14 N.Y.3d 180, 188). “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v. Tabb, 13 N.Y.3d 852, 853; cf. People v. Williams, 21 N.Y.3d 932, 935), despite defense counsel's failure to object to the Supreme Court's handling of the jury's notes (see People v. O'Rama, 78 N.Y.2d at 279–280; People v. Lockley, 84 A.D.3d at 839; People v. McGhee, 103 A.D.3d at). People v. Nealon, 116 A.D.3d 886, 887-88 (2d Dep’t 2014); (A-2). The court also granted Mr. Nealon’s motion to strike those parts of the People’s brief that referred to the purported “resettlement” “findings.” Nealon, 116 A.D.3d at 888; (A-4). 21 ARGUMENT POINT I AS THE APPELLATE DIVISION CORRECTLY HELD, THE TRIAL COURT’S FAILURE TO DISCLOSE THE CONTENTS OF SUBSTANTIVE NOTES REQUIRING COUNSEL’S INPUT OR TO AFFORD COUNSEL THE OPPORTUNITY TO PROVIDE INPUT ON THE RECORD, PRIOR TO ACTUALLY RESPONDING IN A MANNER THAT DID NOT REPEAT THE FINAL CHARGE WITH THE JURY ALREADY PRESENT, WAS A MODE OF PROCEEDINGS ERROR, FOR THIS PROCEDURE UNFAIRLY SURPRISED COUNSEL AND ENTIRELY PREVENTED MEANINGFUL PARTICIPATION. Mr. Nealon was charged with first- and second-degree robbery and second-degree assault. During deliberations, the jury sent notes expressing confusion about the “difference” between the two robbery charges, and asking whether first-degree but not second-degree robbery “includes” “assault.” It also asked whether the “degree of injury” “count[ed]” toward “1 st or 2 nd degree.” In the context of this case and the charges, these notes were “substantive” and required a “substantive response” as to which counsel should have been afforded the opportunity to provide input. Nonetheless, the court disclosed these notes on the record only after the jury had already returned to the courtroom. And upon doing so, it immediately gave extemporaneous responses that did not merely repeat the final charge. 22 As the Appellate Division correctly held, because these notes required a “substantive response,” the trial court’s method of handling them failed to meet its “core responsibility” under People v. O’Rama, 78 N.Y.2d 270 (1991). Since the court did not first place the notes’ contents on the record outside the jury’s presence, counsel was not afforded a full opportunity to suggest appropriate responses. And because he was not aware of the court’s intended responses until the moment he and the jury heard it at the same time, he was unable to formulate or suggest modifications. The court’s procedure thus constituted a mode of proceedings error because it failed to “ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response.” People v. Kisoon, 8 N.Y.3d 129,134 (2007). Moreover, the People’s arguments to the contrary ignore the critical distinction in the O’Rama line of cases between notes calling for a ministerial response on the one hand, and substantive notes that require a “substantive response” on the other. As part of the process of formulating a “meaningful response,” the latter require counsel’s input. Under many decision starting O’Rama itself, an O’Rama deviation as to a substantive note that deprives counsel of the critical ability to participate is a mode of proceedings error. Accordingly, the order reversing Mr. Nealon’s 23 conviction should be affirmed. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, § 6; C.P.L. § 310.30; O’Rama, 78 N.Y.2d 270. “There [is not] any question as to what a trial court must do upon receiving a jury note requesting instruction on a substantive matter.” People v. Cruz, 14 N.Y.3d 814, 819 (2010) (Lippman, C.J.; concurring in result; emphasis added). The trial court must provide “meaningful” “notice to both the people and counsel for the defendant” of the communication, C.P.L. § 310.30; O’Rama, 78 N.Y.2d 270, to be effectuated by the trial court following a specific procedure: [W]henever a substantive written jury communication is received by the Judge, it 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. . . . After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the panel can appreciate the purpose of the court’s response and the context in which it is being made. 24 O’Rama, 78 N.Y.2d at 277-79 (adopting procedure outlined in United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981); emphasis supplied). Accord People v. Silva, 24 N.Y.3d 294, 299 (2014). As the People point out, “rigid” adherence to this protocol is not required under every circumstance (App. Brief at 29). O’Rama, 78 N.Y.2d at 278. Nevertheless, a court has a critical “core responsibility” under the statute “both to give meaningful notice to counsel of the specific content of the jurors' request . . . and to provide a meaningful response to the jury.” Silva, 24 N.Y.3d at 298-99 (emphasis added; quoting Kisoon, 8 N.Y.3d at 134). If a court’s deviation from the O’Rama procedure fails to fulfill either aim, it “represent[s] a significant departure from the organization of the court or the mode of proceedings prescribed by law,” necessitating reversal even in the absence of objection. O’Rama, 78 N.Y.2d at 279 (internal quotations omitted); see also Silva 24 N.Y.3d at 300-01 (mode of proceedings errors when notes were neither disclosed nor responded to). A trial judge’s “failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL 310.30 and qualifies as a mode of proceedings error.” Silva, 24 N.Y.3d at 299-300; see People v. Walston, 23 N.Y.3d 986, 990 (2014); People v. Tabb, 13 N.Y.3d 852 (2009); Kisoon, 8 N.Y.3d at 134; O'Rama, 25 78 N.Y.2d at 277. This is not, however, the sole O’Rama error that violates a court’s “core responsibility.” As the Second Department held in appellant’s case, Nealon, 116 A.D.3d at 887-88, if a judge’s deviation from O’Rama fails to afford counsel the opportunity to provide input into a substantive note, i.e., one “requir[ing] a ‘substantive response,’” this, too, constitutes a failure to provide meaningful notice. See also People v. Cook, 85 N.Y.2d 928 (1995). This conclusion is compelled by the Court’s jurisprudence. First, the core motivation of O’Rama and its progeny is to ensure counsel’s participation in the crafting of a response to jury communications during the “critical postsubmission proceedings” of deliberations. O’Rama, 78 N.Y.2d at 277. As the Court has explained, the O’Rama procedure is not motivated by mere formalism or “designed only to ensure counsel's presence in the courtroom when the court gives its response.” Id. at 276 (emphasis added). Rather, it was adopted by the Court “to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel's input is most meaningful.” Silva, 24 N.Y.3d at 299 (quoting People v. Alcide, 21 N.Y.3d 687, 692 (2013); emphasis added). Thus, the Court has held that in order for notice of a communication to be “meaningful,” it must 26 “ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response.” Kisoon, 8 N.Y.3d at 134 (emphasis added). Manifestly, a procedure such as the one used in the instant case – record disclosure of substantive notes with the jury already present, followed by an immediate, apparently extemporaneous response – cannot serve this aim. The jury’s presence, and the court’s momentum toward completing its dealings with the jury and returning it to deliberations, inhibits counsel’s ability both to reflect on the meaning of the note, as well as to suggest possible responses. It also forces counsel simultaneously to process the note’s meaning and possible responses in a hurried fashion. And it acts as a deterrent for counsel to express disagreement with the court’s response; after all, counsel would have to interrupt, in front of the jury, to do so. Second, the Appellate Division’s reliance in Mr. Nealon’s case on the fact that the notes were substantive, inasmuch as they required a “substantive response,” is validated by this Court’s jurisprudence. O’Rama decisions have always turned on whether the communication at issue was substantive or ministerial. Indeed, O’Rama itself emphasized that C.P.L. § 310.30 meaningful notice is required only with substantive communications: “CPL 310.30 thus imposes two separate duties on the court following a substantive juror inquiry . . . .” O’Rama, 78 N.Y.2d at 276; see 27 also id. at 274 (“where the juror's note was substantive . . . we hold”); 277 (“whenever a substantive written jury communication is received”); 279-80 (“an important, substantive juror inquiry”) (emphasis added in all). See also, e.g., Silva, 24 N.Y.3d 294; Walston, 23 N.Y.3d 986; Alcide, 21 N.Y.3d 687; Kisoon, 8 N.Y.3d 129; Cook, 85 N.Y.2d 928; People v. DeRosario, 81 N.Y.2d 801 (1993) (all referring to “substantive” communications). Third, and finally, the Court has repeatedly recognized that a “substantive” communication is one as to which counsel could be expected to contribute, and used this pivotal distinction as the test for deciding when no protest is necessary. Conversely, when a jury communication is unlikely to require substantial input from counsel, the Court has invariably found that the O’Rama protocol does not apply or counsel was required to preserve the court’s failure to afford notice or the ability to give input. For example, when a prosecutor engaged in a “back-and-forth” with the jury during a video playback, the Court held: Asking that the lights be dimmed because a juror was bothered by the glare, playing the video again once they were, or attempting to stop the video at the place the jurors wished is not the kind of substantive response that implicates O'Rama. As a result, preservation was required. People v. Mays, 20 N.Y.3d 969, 971 (2012) (emphasis added). 28 Similarly, in People v. Ochoa, 14 N.Y.3d 180, 184 (2010), the jury foreperson sent a note after the entire jury had announced its verdict but prior to its recording, expressing discomfort with “reading the verdict.” Without informing the parties, the trial court engaged in an inquiry with the foreperson and ascertained that his concerns related to how the verdict was to be delivered. A majority of the Court held that this note was “ministerial” because there was no input counsel could give as to the note: The substance of the note related only to the foreperson's concern about the manner in which that verdict was to be delivered, and thus was nothing more than an inquiry of a ministerial nature (see generally People v Hameed, 88 NY2d 232, 240-241 [1996]; People v Collins, 99 NY2d 14, 17-18 [2002]), unrelated to the substance of the verdict (see People v Harris, 76 NY2d 810, 812 [1990]). As a result, the judge was not required to notify defense counsel nor provide them with an opportunity to respond, as neither defense counsel nor defendant could have provided a meaningful contribution. Id. at 188 (emphasis added). 2 2 Notably, even the dissent in Ochoa did not dispute the distinction drawn by the Court regarding notes requiring counsel’s input in crafting a “substantive response” and those that were merely ministerial, simply disagreeing with the majority’s conclusion as to the ministerial nature of the note at issue. Id. at 190-91 (“Whether a jury note is a ministerial or substantive inquiry can vary depending on the circumstances of the particular case”; here the timing and content of note suggested that “the verdict was a problem to at least one juror” and thus counsel should have been given notice) (Jones, J., dissenting, joined by Lippman, C.J., Ciparick, J.). 29 At the heart of O’Rama jurisprudence, therefore, is the Court’s recongition that the purpose of the “meaningful notice” requirement is to allow counsel the opportunity to help decide how to provide a meaningful response to a substantive note: Meaningful notice, we said, requires not only that counsel be present in the courtroom when the court delivers its response to jurors' requests for information or instruction, but also “that counsel has the opportunity to be heard before the response is given” (People v. O'Rama, supra, at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189; cf., People v. Starling, 85 N.Y.2d 509, 626 N.Y.S.2d 729, 650 N.E.2d 387 [decided today] ). Cook, 85 N.Y.2d at 931 (emphasis added). This guiding principle is fatally undermined when a court gives no record notice of a note requiring a substantive response until the jury is present, and then immediately launches into its answer to the note. In such a circumstance, counsel cannot possibly have “the opportunity to be heard” that is so crucial to meaningful notice. O’Rama requires that counsel “be afforded a full opportunity to suggest appropriate responses.” O’Rama, 78 N.Y.2d at 277 (emphasis added). First, if the court moves straight from reading the note into a response, counsel must simultaneously process both the note’s meaning and the propriety of the court’s response. Second, if the jury is already present, the parties and the court have no time to discuss the 30 possible meanings of an ambiguous communication. And third, there is no time to discuss a possible response. See Walston, 23 N.Y.3d at 990 (recognizing that ambiguity of jury note requires “providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response”). O’Rama also requires that the trial court “should ordinarily apprise counsel of the substance of the responsive instruction it intends to give” so counsel can request modifications “before the jury is exposed to the potentially harmful information.” O’Rama, 78 N.Y.2d at 277 (emphasis added). But when the court moves immediately from record disclosure of the note to its intended response, this requirement is entirely vitiated. Caught off guard by the unanticipated response, counsel and the jury will hear the “potentially harmful” response at the same time. Any objection at this point will likely be futile, even if the court sustains it and modifies its response accordingly. See Krulewitch v. United States, 336 U.S. 440, 453 (1949) (“[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction”; Jackson, J. concurring in result and opinion). In addition, asking counsel to break into a judge’s colloquy while he or she is actually instructing the jury is unrealistic, for counsel will almost certainly fear 31 highlighting the prejudicial portion or, worse, inciting the jury’s anger for the seemingly disrespectful interruption. For this reason, the People’s argument that “placing the burden on defense to object [is not] unfair under these circumstances” rings hollow (App. Brief at 38). Counsel cannot be expected to simultaneously digest the meaning of a jury communication at the same time that he considers whether a court’s extemporaneous, previously-unheard response is proper and fair to the defense. And should counsel even realize – under these trying circumstances – that the court’s procedure or response prejudices the defendant, it would be extremely difficult for him to break into the judge’s monologue without arousing the ire of either the court or the jurors. Clearly, therefore, when a note requires a crafted, substantive response, the procedure employed in the instant case does not afford counsel the “full” opportunity to suggest a response that this Court intended in adopting the “meaningful notice” protocol. In fact, this procedure affirmatively prevents counsel from giving input. Accordingly, the Second Department correctly held that a mode of proceedings error occurred because the trial court failed to comply with the “core responsibility” to provide “meaningful notice” of substantive notes required by O’Rama. Nealon, 118 A.D.3d at 888 (citing, inter alia, Alcide and Ochoa) (mode of 32 proceedings error because “the jury's repeated requests for clarification of the difference between the counts of robbery in the first degree and robbery in the second degree within the context of this case required a “substantive response”); see also People v. Lockley, 84 A.D.3d 836, 838 (2d Dep’t 2011) (court’s provision of response without disclosing substantive notes to counsel beforehand were “the same as telling counsel that he had no right to participate in suggesting a response”). Contrary to the People’s arguments, the Second Department has not adopted an “unduly broad interpretation of O’Rama and its progeny,” and is not “mechanically” voiding convictions based on the numerous O’Rama errors it sees at the appellate level (App. Brief at 50). Instead, it has carefully applied its reasoned and supported understanding to all of the cases that come before it, and only found a mode of proceedings error to occur when the mishandled notes required a substantive response. See, e.g., People v. Thomas, 115 A.D.3d 995 (2d Dep’t 2014) (failure to give notice in jury’s absence of note requesting charge readback required preservation); People v. Gerrara, 88 A.D.3d 811 (2d Dep’t 2011) (“the jury inquiries were purely ministerial in nature: requests to view evidence; read-backs of testimony; and/or read-backs of the trial court's jury charge. Since the notes 33 were not substantive, any failure by the trial court to comply with CPL 310.30 did not constitute a mode of proceeding error”). Moreover, this approach fully comports with People v. Williams, People v. Alcide, and every other case in the O’Rama line. The People incorrectly assert that Williams and Alcide stand for the proposition that, so long as the trial judge reads any note with counsel present, even if it only occurs once and in the jury’s presence, preservation is required, including for substantive notes (App. Brief at 29-32). They are incorrect. Since the notes at issue in those cases did not require counsel’s input into a substantive response, the deviation from O’Rama did not rise to a mode of proceedings error. In Alcide, 21 N.Y.3d 687, the jury requested readbacks of the entirety of witnesses’ testimony. In the context of that case, the only proper meaningful response to this note was literal compliance with the request and thus reading back the entirety of the testimony. Since counsel could not have added anything significant to this compelled response, the court’s “related” duty of giving notice, O’Rama, 78 N.Y.2d at 276, was necessarily less onerous and could be discharged simply by disclosing the note – in full – before the jury. Nor, for the same reason, did the O’Rama deviation prevent counsel from participating or stymie his efforts to shape the court’s 34 response before it was heard. Since “the judge explained exactly how he was going to conduct the readbacks,” i.e., by participating in them along with the court reporter, counsel was required to protest the purely procedural matter of “the judge's intended approach.” Alcide, 21 N.Y.3d at 694. Similarly, in Williams, 21 N.Y.3d at 934, the jury requested “clarification of a legal term,” specifically, “acting in concert” (AD-3-9). Although it had asked a previous question relating to accomplice liability, it had not yet asked for or received a readback of that final instruction, or any final instruction. In the context of this stage of deliberations, the only proper meaningful response to their request for clarification of a legal term was a re-reading of relevant portions of the final instruction. Just as in Alcide, therefore, since counsel could not have provided input that would have shaped the meaningfulness of the response, the court’s “core responsibility” of providing notice under C.P.L. § 310.30 was discharged simply by reading the note aloud in the jury’s presence and responding to it. Thus, contrary to the People’s claims (App. Brief at 37-38), it is clear that Williams and Alcide do not hold that a court’s disclosure of every note – whether inviting a substantive or ministerial response – for the first time in front of the jury satisfies the “core responsibility” of C.P.L. § 310.30. Instead, as the Second Department correctly understands, these cases stand 35 for the rule that where a note does not require counsel’s input into a “substantive response,” Nealon, 116 A.D.3d at 887-88, (as in Williams and Alcide), the court’s deviation from O’Rama requires protest. See O’Rama, 78 N.Y.2d at 278 (recognizing that procedure can be “modified” based on circumstances of case). Also contrary to the People’s assertions (App. Brief at 32-37), the other O’Rama cases finding preservation necessary support this reading. In People v. Starling, 85 N.Y.2d 509, 514, 516 (1995), relied upon extensively by the People and both Williams, 21 N.Y.3d at 935, and Alcide, 21 N.Y.3d at 693-94, the jury requested “readings” of the “definition of intent,” a request the court complied with by re-reading the final charge after disclosing the notes for the first time in the presence of the jury. Since there was no apparent way to respond except with the requested re-reading of the instruction, counsel would not have been able to suggest a more meaningful response in the absence of the jury. Moreover, the Court held, since the trial court had already read these charges and simply re-read them verbatim in response to the requests, counsel had knowledge of the intended response. Under these circumstances, counsel was neither surprised by the court’s actions, prevented from piping up with a suggested response, or unfairly required to object in the presence of the jury. Accordingly, the Court held 36 that the trial court complied with its core responsibility to give meaningful notice and counsel was required to object to the deviation from O’Rama. Id. The People also rely heavily on People v. Ramirez, 15 N.Y.3d 824 (2010) (App. Brief at 32-34), a concise opinion that does not set forth the legally operative facts: . . . although the record is silent as to whether Supreme Court showed the jury note to counsel as required in People v O'Rama (78 NY2d 270 [1991]), defense counsel had notice of the contents of the note and the court's response, and failed to object at that time, when the error could have been cured. Accordingly, defendant's claim is unpreserved for review (see People v Starling, 85 NY2d 509, 516 [1995]; see also People v Kadarko, 14 NY3d 426, 429-430 [2010]). Id. at 825-26. As they do throughout the brief (see App. Brief at 30, 31, 32- 33, 34, 39-40), the People rely heavily on background facts they have gleaned from the trial record and briefing to speculate about the Court’s precedent and support their arguments. It is not clear, however, what facts were dispositive in Ramirez since the Court did not include them in the opinion. In any event, it is reasonable to conclude from the citation to Starling that Ramirez’s outcome was determined on the same basis, i.e., that the Court concluded counsel could not have provided meaningful input into the jury notes at issue, which the court responded to by merely re-reading its final charge and giving an entirely defense-favorable response to a 37 hypothetical posed by the jury (AD-10-18). See also People v. Ippolito, 20 N.Y.3d 615 (2013) (court’s answer of “no” to jury’s request for a written copy of charges did not require explicitly soliciting defense counsel’s input). The People’s reliance on these cases is thus simplistic and incorrect, for it ignores the distinction this Court has always explicitly drawn between ministerial communications not requiring counsel’s meaningful input and those that are substantive because they required a response that was not necessarily obvious or uncontested, and, thus, as to which counsel could have provided input. See Mays, 20 N.Y.3d 969; Ochoa, 14 N.Y.3d 180. As the Second Department has recognized, the court may handle notes that do not require counsel’s input with the procedure employed in Williams, Alcide, Starling, and Ramirez, and any deviation from O’Rama must be protested in order to present an issue of law. Substantive notes, however, require a carefully-crafted “substantive response” in order to be meaningful, and counsel must be permitted to participate in it. This reading of O’Rama’s core holding is entirely consistent with the Court’s jurisprudence. Indeed, the Second Department relied on, inter alia, O’Rama, Ochoa, Alcide, and Williams in reversing Mr. Nealon’s conviction. Nealon, 116 A.D.3d at 887. The People’s strenuous argument that the Appellate Division found a mode of proceedings error due to an “incorrect” 38 “timing” “interpretation” of People v. Tabb, 13 N.Y.3d 852 (App. Brief. at 38-41) is thus incorrect. Notably, that court did not cite Tabb in the portion of its decision setting forth the “timing” facts, as the People assert (App. Brief at 39). Instead, it cited and quoted Tabb for nothing more than its literal holding: “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal.” Tabb, 13 N.Y.3d 852; see Nealon, 116 A.D.3d at 888. In addition, the People speculate about the holding of Tabb in order to assert that the Appellate Division wrongly relied on it. But Tabb was a singular case in which the trial court apparently blundered through nearly every single aspect of the O’Rama protocol, as to nearly every single jury note, and the facts leading to the reversal are not set forth in the opinion. See Letter Brief in People v. Tabb, 13 N.Y.3d 852, 2009 WL 6324117 (2009). Thus, the People’s speculation that the outcome of Tabb was based on the fact that the trial court “left out the term ‘direction’” (App. Brief at 40) is just that – speculation. In sum, therefore, it is clear that “meaningful notice,” “tailored” to the circumstances of the case, O’Rama, 78 N.Y.2d at 278, requires the court’s solicitation of counsel’s input into its intended response to a substantive note 39 before the response is actually given in order to comply with the “core responsibility” under O’Rama and C.P.L. § 310.30. See Cook, 85 N.Y.2d at 931 (court did not permit counsel to provide input into juror’s account of “emotional impasse”). Anything short of this causes unfair surprise and fatally undermines counsel’s right to meaningfully participate in the court’s response. Unfortunately, that is precisely what the trial court did at Mr. Nealon’s trial. Here, the charges submitted to the jury were, inter alia, first- and second-degree robbery and first-degree assault. During deliberations, the jury sent a note expressing confusion about the “difference” between the two robbery charges. Later, it asked whether the first- but not second-degree robbery charge “include[d] assault,” and separately asked whether the “degree of injury” “count[ed]” toward “1 st or 2 nd degree.” As to each of these notes, there was “no record evidence,” Tabb, 13 N.Y.3d 852, that, in the absence of the jury, the court disclosed the note to counsel in full, solicited his input, or apprised counsel of its intended response. Instead, for each, the court read the note into the record for the first time only in the presence of the jury and proceeded to give extemporaneous responses that did not track the final charge already given. 40 This procedure prevented counsel from meaningfully participating in formulating a substantive response. First, it gave counsel no opportunity to discuss with the court and prosecutor what the notes actually meant or sought. Notably, the notes were susceptible of several meanings. For example, in its second note asking whether the robbery “include[d]” assault, the jury could have been asking whether it had to find Mr. Nealon committed the assault in order for it to find him guilty of first-degree robbery, or it could have been confusing the “serious physical injury” requirement of first-degree robbery with the “physical injury” element of the assault count. And as to the last note, it was unclear what the jury meant by “count[ed],” and also whether it was asking about “degree of injury” in relation to the first-degree robbery charge, or the second-degree assault charge – a crucial difference since the proof requirement was different. The procedure also prevented counsel from knowing the court’s intended response until it was given, or suggesting the “fairest and least prejudicial response” for the defense. Kisoon, 8 N.Y.3d at 129. Crucially, the court appeared to give extemporaneous responses that did not track the final charges counsel already had notice of. Finally, because the court launched immediately into its response, its handling of the notes made it extremely difficult – if not impossible – for counsel to lodge an objection. 41 In short, the procedure employed by the trial court undermined the requirement of “meaningful notice,” for it ensured that counsel did not have “the opportunity to be heard before the response is given.” Cook, 85 N.Y.2d at 931. Moreover, unlike in Alcide and Williams, counsel’s input almost certainly could have contributed to the meaningfulness of the court’s responses. For example, counsel could have suggested that the court not answer the first request concerning the difference between first- and second- degree robbery by incorrectly paraphrasing and over-simplifying the elements that distinguished the two. This is particularly true because the court’s off-the-cuff responses emphasized the aggravating elements (“serious physical injury” and “a person is actually present”) that distinguished the two at the expense of all the other elements the People had to prove. The same can be said for the third and fourth requests, in which the jury’s requests were ambiguous and the court’s responses – including “There is no injury count in the assault. In the robbery in the second degree, there is another, however” – were muddled and confusing, at best. The jury requested clarification on whether first-degree robbery but not second- degree robbery “include[d]” “assault,” and separately asked whether “1 st or 42 2 nd degree” required “injury.” Counsel could have again opposed the court’s confusing and arguably incorrect response, as well as its paraphrasing of the robbery counts’ different elements. Or, in light of the conflation of “assault” and “robbery,” he could have asked the court to instruct the jury not to commingle the evidence as to the separate counts, or instruct the jury that the People had to prove each count of conviction beyond a reasonable doubt. Finally, since the case charged a first-degree robbery involving “serious physical injury,” a second-degree assault involving “physical injury,” and a second-degree robbery not involving any injury at all, counsel could have asked the court to clarify which counts the jury referred to, exactly, in their final request about whether “1 st or 2 nd degree” required “injury.” Since counsel’s input was necessary in this case in order to provide a substantive response to the jury, the court failed to discharge its obligation to provide meaningful notice when it failed to disclose the notes in the absence of the jury, solicit counsel’s input, and apprise him of the intended response. Cook, 85 N.Y.2d at 931; O’Rama, 78 N.Y.2d at 276. This critical distinction, unappreciated by the People, leads to the inevitable conclusion that neither Williams, 21 N.Y.3d 932, nor Alcide, 21 N.Y.3d 687, controls the outcome of Mr. Nealon’s case. 43 Moreover, none of the People’s arguments to the contrary are persuasive. They assert that it would not be unfair to require counsel to object because “defense counsel are routinely called upon to object while the jury is in the courtroom” (App. Brief at 38). But objecting to the prosecutor’s questions during voir dire, trial, summation, etc., or even the court’s rulings at those times, are a far cry from the “critical post-submission proceeding” of deliberations, O’Rama, 78 N.Y.2d at 276, when a judge’s responses “may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves . . . .” People v. Ciaccio, 47 N.Y.2d 431, 436 (1979). Thus, that counsel spoke up during trial is irrelevant (App. Brief at 57). The People also repeatedly mischaracterize the error in this case as nothing more than an issue of “timing” or an “insubstantial” deviation from O’Rama (App. Brief at 38, 41, 43, 45, 48-49). This view dismisses as inconsequential O’Rama’s guideline about the procedures to be followed before the jury is returned to the courtroom, and would read more than half of the O’Rama requirements out of the protocol. The truncated proposal advanced by the People runs contrary to the nuanced, tailored approach espoused by O’Rama itself, which recognized that what procedures constitute meaningful notice may be “modified” based on the circumstances 44 of case so long as they “are equally conducive to participation by defense counsel.” O’Rama, 78 N.Y.2d at 278. In addition, the People complain that “defense attorneys, rather than making their voices heard, have remained mute” since O’Rama was decided, and that a decision against them in Mr. Nealon’s case would “circumvent the very objectives O’Rama was meant to serve because it emboldens [defense attorneys] to participate less, rather than more,” in order to achieve a strategic advantage on appeal (App. Brief at 50-51). This argument is untenable: that trial counsel would remain silent to obtain an appellate advantage rather than simply seek the most defense-favorable instruction or response during the critical stage of deliberations is highly counterintuitive. In any event, this argument is just a rehash of the concerns about the purported manipulation of the system discussed in Judge Smith’s concurrence in People v. Walston, 23 N.Y.3d at 990-93, arguments that were subsequently brought before the Court and conclusively rejected in People v. Silva, 24 N.Y.3d at 299, when the Court refused to overrule O’Rama. Moreover, it is difficult to see how enforcing the O’Rama requirements that meaningful notice of a substantive note is required in the jury’s absence would result in less defense participation: presumably, trial courts would finally start getting it right and actually give counsel the opportunity to 45 participate that O’Rama requires. Greater adherence to the longstanding O’Rama guidelines would also result in fewer appeals on this ground. For this reason, the Court should decline the People’s invitation to “take a relaxed view” of O’Rama (App. Brief 54). Finally, the People argue that defendants should not “garner the benefit” of “full” compliance with O’Rama and “falsely” claim error on appeal “based on a less than complete record” (App. Brief at 55). They further argue that counsel likely did not object in Mr. Nealon’s case because the trial court “may have fully complied with O’Rama, albeit off-the-record” and fault Mr. Nealon for his “false[]” claims of error (App. Brief at 55). As discussed more fully in Point II, post, this Court has made it crystal clear that O’Rama imposes a record-making function on the judge: there is “an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama.” Silva, 24 N.Y.3d at 300 (emphasis added). Dereliction of this affirmative obligation is not “full” compliance with O’Rama, and, thus, appellate claims based on the absence of the required on- the-record procedures cannot be characterized as “false.” In sum, the Appellate Division correctly held that the trial court violated its “core responsibility” under O’Rama and C.P.L. § 310.30 and committed a mode of proceedings error in this case. Accordingly, its order 46 reversing Mr. Nealon’s conviction should be affirmed. Should the Court disagree, Mr. Nealon respectfully asks the Court to remand the case to the Appellate Division to permit it to consider the issue in the interest of justice. People v. Cona, 49 N.Y.2d 26, 34 (1979). 47 POINT II THE ISSUES OF RESETTLEMENT AND RECONSTRUCTION ARE UNAPPEALABLE AND UNREVIEWABLE IN THIS CASE; IN ANY EVENT, BECAUSE A TRIAL COURT IS OBLIGATED TO MAKE A CONTEMP- ORANEOUS RECORD OF ITS COMPLIANCE WITH O’RAMA, THE APPELLATE DIVISION ACTED WELL WITHIN ITS DISCRETION IN REFUSING TO CONSIDER THE “RESETTLE- MENT” FINDINGS OR “RECONSTRUCT” THE RECORD. The People urge this Court to “find that, based upon the resettled/reconstructed record, the trial court complied with O’Rama” and ask the Court to review the propriety of resettlement or reconstruction in the O’Rama context (App. Brief at 81). This Court, however, has no independent fact-finding power to do so, and the issues of resettlement and reconstruction are unreviewable in this case. Moreover, the Appellate Division’s decision to strike off-the-record material from the People’s brief and refusal to order reconstruction also are unreviewable exercises of discretion. Nor can the People legitimately claim the actions of the Appellate Division were an abuse of discretion as a matter of law. The People’s resettlement motion was untimely. Moreover, resettlement is only available to correct modest mistakes or clerical errors; it does not lie to create a new portion of the record that the trial court deliberately failed to make. See People v. Richardson, 100 N.Y.2d 847, 852 (2003). Since the trial court was 48 obligated to make a contemporaneous record of its compliance with O’Rama, People v. Walston, 23 N.Y.3d 986, 990 (2014), its failure to do so cannot be characterized as an ambiguity or mistake that can be “cured” by resettlement. For the same reason, reconstruction is also unavailable in the O’Rama context. And, holding otherwise would fundamentally disrupt appellate practice and sow confusion and inefficiency. Accordingly, the Appellate Division’s refusal to consider the trial court’s alleged “resettlement findings” or order reconstruction in Mr. Nealon’s case was well within its discretion. The “Resettlement/Reconstruction” Issue is Unappealable and Unreviewable The People urge this Court to “find that, based upon the resettled/reconstructed record, the trial court complied with O’Rama” (App. Brief at 81; emphasis added). But the Court has no jurisdiction to do so. Because it granted Mr. Nealon’s motion to strike the purported “resettlement findings” from the appellate briefing, the Appellate Division did not exercise its fact-finding function and thus did not consider, ratify, or pass on the accuracy of the trial prosecutor’s allegations that were “found” by the trial court. This Court has no independent fact-finding power to do so itself. N.Y. Const. Art. VI, § 39(a) (“The jurisdiction of the court of appeals shall be limited to the review of questions of law except where the judgment is of 49 death”). See, e.g., People v. McRay, 51 N.Y.2d 594, 601 (1980); People v. Gruttola, 43 N.Y.2d 116, 122 (1977). Moreover, the People seek to defend the legality of the trial court’s order granting their motion to issue purported “resettlement findings” (App. Brief at 62-68). But the correctness of that ruling is unreviewable in this Court by virtue of C.P.L. § 470.35(2), which circumscribes the issues that may be raised following reversal to few situations, none of which apply here. First, the propriety of resettlement was not the “basis for [the Appellate Division’s] order of reversal.” C.P.L. § 470.35(2)(a). Since, as discussed, ante, the Appellate Division did not consider the resettlement facts and explicitly reversed due to the trial court’s failure to comply with O’Rama “on the face of the record,” People v. Nealon, 116 A.D.3d 886, 887 (2d Dep’t 2014), any purported “resettlement findings” were wholly irrelevant to that court’s decision. Nor may the Court reach the issue under C.P.L. § 470.35(2)(b), authorizing review of a “question of a law involving alleged or possible error or defect in the criminal court proceedings resulting in the original judgment” that adversely affected the “party who was appellant” at the Appellate Division appellant (here, Mr. Nealon). This provision is intended for the benefit of the respondent in the Court of Appeals in defending the 50 intermediate court’s reversal, not for the appellant to use to urge new reasons to overturn the reversal. See C.P.L. § 470.35, Practice Commentary (quoting Staff Comments to C.P.L. revision to explain that “intent” of subdivision (2)(b) is to grant Appellate Division appellant, “now respondent in the Court of Appeals,” the ability “to defend the reversal not only on [reversal issue] contention A, but also on contention B, which was raised and not decided by the intermediate appellate court”); Arthur Kargar, The Powers of the New York Court of Appeals (3d ed. 2005) § 21:12 at p. 785-86 (characterizing subdivision (2) as one that enables “respondent to advance any other claim of error” he raised in the trial court); People v. Gallina, 66 N.Y.2d 52, 59 (1985) (characterizing respondent’s arguments under § 470.35(2)(b) as “an alternative ground” to defend Appellate Division reversal). As appellant, therefore, the People may not rely on this ground. In actuality, and although they do not spell this out, it seems that the People’s real complaint in this Court is that the Appellate Division erred in granting appellant’s motion to strike “resettled/reconstructed” material from the People’s brief (App. Brief at 62 (“The Second Department . . . affirmatively refused to consider the record, as resettled by the trial court”; emphasis in original)). But this exercise of discretion by the Appellate 51 Division also is unreviewable in this Court, unless it can be shown to be an abuse of discretion as a matter of law. People v. Herman L., 83 N.Y.2d 958, 959-60 (1994) (review of discretionary decision of intermediate court limited to whether “abuse of discretion as a matter of law”); People v. Paz, 158 A.D.2d 1008 (4 th Dep’t 1990) (describing decision as to striking People’s brief as “exercise of our discretion”). The People make no claim whatsoever that the Appellate Division’s decision meets this standard. Nor can they, for, as set forth below, the Appellate Division’s decision was entirely correct. 3 Notably, in their jurisdictional statement, the People entirely fail to assert that there is a basis for this Court’s jurisdiction or review of this issue (App. Brief at 2). The Appellate Division Providently Exercised Its Discretion in Granting Mr. Nealon’s Motion to Strike the Purported “Resettlement Findings” from the People’s Brief The Appellate Division’s refusal to consider the trial court’s alleged “resettlement findings” in Mr. Nealon’s case was well within its discretion: 3 To the extent that the People’s argument can be construed as complaining about the Appellate Division’s decision not to order reconstruction rather than reversing for a new trial, they are only permitted to contest the “legality” of the Appellate Division’s corrective action. C.P.L. § 470.35(2)(c). But legality is not at issue here: it is well settled that an intermediate court’s choice of corrective remedy also is upheld unless it is an abuse of discretion as a matter of law. See People v. LaSalle, 95 N.Y.2d 827, 829 (2000). See also People v. Santorelli, 95 N.Y.2d 412, 424 (2000) (whether to order reconstruction hearing is matter of discretion). It can hardly be said that the Appellate Division’s decision to order a new trial in Mr. Nealon’s case was an abuse of discretion; after all, that is the remedy this Court has ordered in every case in which it found O’Rama error. 52 the People’s “resettlement” motion was untimely; and neither resettlement nor reconstruction is available when the court deliberately fails to make a contemporaneous record of its compliance with O’Rama notwithstanding an obligation and ability to do so. As an initial matter, the People’s motion in Supreme Court for resettlement was untimely. Civil Practice Law and Rules § 5525(c), on which the People explicitly relied in their motion, does not create a procedure that is available to the People any time they believe the record needs to be amended. Section 5525(c)(1) instead requires a party to raise its proposed amendments to the transcript within 15 days of its receipt. Here, when appellant served and filed his Appellate Division brief on April 16, 2012, he served on the People a certified copy of the entire trial transcript. The People did not move before the Supreme Court judge to resettle the record until August 3, 2012, 109 days after receiving the minutes. Although the People now argue that they “exercised diligence by promptly investigating the O’Rama issue and by making a motion to resettle” (App. Brief at 74), they made no showing of diligence in their Supreme Court papers and did not ask at that time to be excused from the 15-day requirement. This is especially telling since the affirmation they supplied after nearly four months of investigation only consisted of two 53 single-sentence factual allegations (AD-29). Their untimely attempt to amend the appellate record should not have been granted. But the central problem with the People’s motion for resettlement and their arguments in this Court is not timing. It is that resettlement simply does not lie to “cure” a judge’s failure to follow the O’Rama procedure. Resettlement is appropriate “where the correction relates to mistake, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth.” People v. Minaya, 54 N.Y.2d 360, 364 (1981); accord People v. Gammon, 19 N.Y.3d 893, 895 (2012). Such “mistakes” or “errors” include: when a foreperson “by mistake, announces a verdict different from that agreed to by the jury,” Dalrymple v. Williams, 63 N.Y. 361, 364 (1875); “a clerical error in recording the plea,” People ex rel. Hirschberg v. Orange Co. Court, 271 N.Y. 151, 157 (1936); or mispronouncing an on-the-record, already-negotiated sentence, Gammon, 19 N.Y.3d at 895; People v. Wright, 56 N.Y.2d 613, 614 (1982); Minaya, 54 N.Y.2d at 364. When the law imposes an affirmative obligation upon the judge to take certain actions on the record, however, and the judge fails to discharge that obligation, he may not thereafter “correct the record” to reflect compliance. See Richardson, 100 N.Y.2d at 852 (because P.L. § 70.25 54 required judge to explicitly state that sentences were to run consecutively, failure to do so not considered clerical mistake or error and could not be “corrected”); People v. Adkinson, 88 N.Y.2d 561, 581 (1996) (companion case to Velasquez; same). That is because correction of the record is only available for “judicial oversight based upon an accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record.” Richardson, 100 N.Y.2d at 853. This Court’s precedent thus makes it clear that resettlement is not available here for the People to create an entirely new portion of the record that the trial court – despite the O’Rama requirement that such a record be made and the absence of any impediment to doing so – failed to make at the time. This is precisely what the Appellate Division understood when it granted Mr. Nealon’s motion to strike the “resettlement findings” from the appellate briefing, Nealon, 116, A.D.3d at 888, relying on, inter alia, People v. Powell, 101 A.D.3d 756, 759 (2d Dep’t 2012), which held: It is well established that courts possess “ ‘inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth’ ” (People v. Minaya, 54 N.Y.2d 360, 364, 445 N.Y.S.2d 690, 429 N.E.2d 1161, cert. denied 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144, quoting Bohlen v. Metropolitan El. Ry. Co., 121 N.Y. 546, 550–551, 24 N.E. 932). Here, however, the People's 55 resettlement motion did not seek to correct a mistake or error that was clerical in nature, or to conform the record to the truth, but rather to create a new portion of the record, which could have been, but was not, created at trial. This is not a proper basis for a resettlement motion (see Van Valkenburgh v. Bourne, 26 A.D.2d 727, 271 N.Y.S.2d 750). 4 Nevertheless, the People claim that continuing to abide by the long- standing rule that only accidental or clerical errors or oversight may be corrected would be “inequitable,” encourage “gamesmanship,” and not serve “justice” (App. Brief at 63, 64, 65). But the People’s proposal would lead to appellate chaos. A motion to resettle the record cannot be an all-purpose vehicle for adding substantive proceedings to the record on appeal. Were that the case, appellate defense attorneys would line up in the trial courts to flesh out every issue discussed off-the-record that, for whatever reason, trial defense counsel failed to elaborate on the record. Plainly, that is not authorized. See C.P.L. § 440.10(3)(a) (post-verdict motion does not lie where defense could have enabled appellate review of issue by placing sufficient facts on the trial record, but failed to do so). Moreover, every case demonstrating clear O’Rama error on the face of the appellate record would be subject to the People’s resettlement 4 In criticizing the Second Department’s citation to Van Valkenburgh v. Bourne, 26 A.D.2d 727 (3d Dep’t 1966), on several grounds (App. Brief at 76-80), the People ignore that Powell quoted the leading precedent of Minaya and Bohlen. 56 litigation in the trial court following the filing of the appellant’s brief in the Appellate Division. This would be followed by incorporation of the new facts into the appellate record, challenges to the resettlement procedure and findings in the Appellate Division, and so on. This proliferation of post- judgment litigation would undermine the appellate process and thwart judicial economy. And in fact, the Court has already asserted an easy-to-apply, bright- line rule in this regard: there is “an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama.” People v. Silva, 24 N.Y.3d 294, 300 (2014) (discussing holding of People v. Walston, 23 N.Y.3d 986, 990 (2014)). Permitting resettlement (or reconstruction) of a record that demonstrates lack of “record compliance” would entirely gut this rule. Notably, the Court has expressly declined the People’s very-recent invitation to overrule this holding. Silva, 24 N.Y.3d at 300 (rejecting People’s request to “disavow our holding in Walston . . .”). All of the problems threatened by the People’s novel proposal to permit post hoc cure of O’Rama error by “resettlement” or “reconstruction” are wholly obviated by application of this rule to this situation – either the trial court complied with its record-making obligation, or it did not. And, neither the People nor the defense would be permitted to go back to the trial court for a “second 57 bite at the apple” in order to make appellate claims unsupported by the contemporaneous record. For this same reason, the People’s characterization of the trial court’s failure to follow the O’Rama procedure as an “ambiguous portion” of the record, a “critical and easily-correctable misimpression,” and “a false impression left by the record” rings hollow (App. Brief at 63, 64. 65). In making these assertions, they miss the point of Walston and Silva entirely: the trial court’s duty to make a record as to the handling of jury notes is not mere window dressing, the absence of which results in ambiguity or misimpression. Rather, this duty is part and parcel of the O’Rama procedure itself. Silva, 24 N.Y.3d at 300; Walston, 23 N.Y.3d at 990. And if the People’s contention that the judge’s failure to follow the O’Rama record- making mandate is nothing more than a transcript “error” were true, the obligation imposed by C.P.L. § 310.30 and those cases would have no meaning. See Richardson, 100 N.Y.2d at 852; Adkinson, 88 N.Y.2d 561 (judge’s failure to follow Penal Law mandate that consecutive sentences be explicitly pronounced on record did not result in clerical error in record that could be corrected). Critically, the Second Department recognized precisely this in Powell, when it held that even if resettlement were proper, it “would be of no avail 58 to the People,” since C.P.L. § 310.30 “contemplates that the procedure for complying with the statute will occur on the record.” 101 A.D.3d at 758-59 (emphasis added). That Powell anticipated this Court’s explicit holding in Walston demonstrates the persuasiveness of the Second Department’s reasoning that resettlement may not substitute for O’Rama compliance. Undoubtedly aware that their reliance on the “resettlement” findings is unavailing, the People use many of the same arguments to press their claim that a reconstruction hearing should have been ordered (App. Brief at 68-74). In addition to being an unreviewable issues, see ante, reconstruction was improper for all of the same reasons. Reconstruction hearings may be ordered where minutes have been lost, the trial court refused to have proceedings recorded, there is a significant ambiguity in the record, or “it is clear that a proceeding took place that was not transcribed.” People v. Velasquez, 1 N.Y.3d 44, 49 (2003). However, reconstruction may not be used to make a record that should have been created the first time around. See id. (“Reconstruction hearings should not be routinely ordered where . . . the record is simply insufficient to establish facts necessary to meet the defendant’s burden of showing that he was absent from a material stage of the trial”). 59 Here, as discussed, the trial judge had an affirmative obligation under O’Rama to make a contemporaneous record of compliance. Silva, 24 N.Y.3d at 300; Walston, 23 N.Y.3d at 990. That is the crucial difference between Mr. Nealon’s case and those reconstruction cases cited by the People (App. Brief at 68-74). In all of those cases concerning a defendant’s right to be present, reconstruction was appropriate to ascertain whether or not the claimed error – defendant’s absence from a material stage of trial – actually even occurred in the first place. See Velasquez, 1 N.Y.3d at 49; Santorelli, 95 N.Y.2d at 424; People v. Michalek, 82 N.Y.2d 906, 907 (1994). There, moreover, the trial court bore no affirmative obligation during the original proceedings to place the fact of the defendant’s presence on the record. In the O’Rama context, however, the error is conclusively proven when the face of the transcript shows that “a trial court [failed] to create a record of compliance under CPL 310.30 and O'Rama.” Silva, 24 N.Y.3d at 300. Allowing reconstruction of off-the-record, deliberately unrecorded proceedings in this context would have the effect of entirely relieving judges of this duty and vitiating O’Rama error entirely. Accordingly, the People’s reliance on these cases is misplaced. 60 Nor does People v. Cruz, 14 N.Y.3d 814 (2010) demonstrate that this Court has “implicitly endorsed reconstruction as a method of clarifying” O’Rama claims, as the People argue (App. Brief at 70-71). The holding of Cruz was not based on O’Rama, and nothing in the opinion demonstrates there was a dispute about the propriety of reconstruction. Rather, the Court reversed the defendant’s conviction due to a “significant, unexplained irregularity in the proceedings” that left open the possibility that the jury was given an exhibit that was not in evidence. Cruz, 14 N.Y.3d at 816. Indeed, Chief Judge Lippmann’s concurrence made it plain that the Court did not address the O’Rama claims. Id. at 819-20 (agreeing in result but urging reversal on “completely dispositive” O’Rama grounds). Moreover, Cruz’s unusual facts suggest the type of record ambiguity in which reconstruction might be appropriate under Velasquez. The issue on appeal was whether an irregularity occurred in the jury room, i.e., whether or not jurors improperly received an exhibit that was not in evidence. Cruz, 14 N.Y.3d at 816. The trial judge’s recollections as to whether he saw and how he dealt with this note would – just as in right-to-be-present cases – shed light on this matter and clear up whether or not the error even occurred in the first place. By contrast, in the instant case and all other O’Rama cases, the issue is not what the jury received off-the-record but how the judge 61 handled the note on-the-record. In such a circumstance, and as discussed ante, the face of the appellate record itself conclusively demonstrates the existence or nonexistence of O’Rama error. 5 In short, the People’s insistence that the Appellate Division’s decision should be reversed because they “affirmatively disproved” O’Rama error (App. Brief at 61) is not correct. This Court may not make this factual finding and the issues involved are otherwise unreviewable. In addition, neither resettlement nor reconstruction is permissible in the O’Rama context. A judge’s failure to make the requisite contemporaneous record of O’Rama compliance is not an ambiguity, clerical error, or modest mistake. Rather, it is a substantive error in and of itself. Silva, 24 N.Y.3d at 300; Walston, 23 N.Y.3d at 990. It may not, therefore, be “cured” by the People attempting to create a portion of the record that never existed in the first place, whether through resettlement or reconstruction. And allowing the People to do so 5 Additionally, in Cruz, the trial judge had no independent recollection at the reconstruction hearing but spoke to his “standard practice” regarding jury requests for exhibits and what he would have done had he been told the jury sought an exhibit not in evidence. 14.N.Y.3d at 816. This Court held that the Appellate Division improperly applied the presumption of regularity under these circumstances. Similarly, in appellant’s case, notwithstanding the People’s insistence regarding the “truth” – that the parties were shown the notes – the trial judge said only that it was his “practice” to show parties the notes and, based on the prosecutor’s affirmation, not his own independent recollection, ordered resettlement of the record to reflect that this occurred “but not as to any specific dialogue between the attorneys regarding the notes discussed at side-bar with the Court” (A-35). Needless to say, a general practice of doing something does not mean that it was necessarily followed in a particular case, and the People’s vehement arguments that Mr. Nealon is advancing a knowingly “false” claim are unwarranted. 62 would both undermine the very ideals protected by O’Rama, and wholly upend appellate practice. And while the People bemoan their supposed lack of “recourse in the face of a silent record,” which, they assert, encourages “gamesmanship” and “false” claims by defendants on appeal (App. Brief at 64-65), the way to avoid such purported consequences is not to create countless new records of doubtful accuracy, perhaps years later, for appeal. Rather, the People should encourage courts to discharge their affirmative duty to ensure that all discussions of jury notes are placed on-the-record at the time they occur, a procedure that will not only comply with O’Rama but will benefit both parties and advance C.P.L. § 310.30’s twin goals of “meaningful notice” and “meaningful response.” Accordingly, the Court should affirm the Appellate Division’s reversal of Mr. Nealon’s conviction. 63 CONCLUSION FOR THE FOREGOING REASONS, THE COURT SHOULD AFFIRM THE APPELLATE DIVISION’S REVERSAL OF MR. NEALON’S CONVICTION. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Respondent Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 (212) 693-0085, ext. 233 ________________________ By: Kendra L. Hutchinson Of Counsel Dated: April 30, 2015 New York, New York