The People, Appellant,v.Kenneth Nealon, Respondent.BriefN.Y.September 10, 2015To be argued by CHRISTOPHER BLIRA-KOESSLER (TIME REQUESTED: 30 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against KENNETH NEALON, Defendant-Respondent. W444444444444444444444444444444444444444444444444444 REPLY BRIEF FOR APPELLANT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant ROBERT J. MASTERS JOHN M. CASTELLANO CHRISTOPHER BLIRA-KOESSLER Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5988 KENDRA HUTCHINSON, ESQ. Appellate Advocates 111 John Street, 9 Floorth New York, NY 10038 July 22, 2015 APL-2014-00219 Indictment Number 608/2008 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii POINT ONE DEFENDANT’S ATTEMPTS TO RE-WRITE THE RATIONALES SUPPORTING THIS COURT’S PRIOR DECISIONS REQUIRING PRESERVATION WHERE A JURY NOTE IS FULLY DISCLOSED TO COUNSEL SHOULD BE REJECTED, BOTH BECAUSE OF THE LANGUAGE OF THOSE DECISIONS AND BECAUSE OF THE FACTS AND OUTCOMES IN THOSE CASES. . . . . . . . . 1 A. This Court’s Decisions in Williams, Alcide, Starling, Ramirez, and Kadarko, Do Not Turn on Whether the Notes Were Substantive or Ministerial, but on Whether the Full Contents of the Notes Were Disclosed. . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Defendant’s Opportunity to Object to the Handling of the Notes Before, During, and after the Court’s Response Was More than Sufficient under this Court’s Caselaw to Place the Bu rden of Preserving the O’Rama Issue on Defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 POINT TWO THIS COURT HAS JURISDICTION TO REVIEW THE APPELLATE DIVISION’S DETERMINATIONS REGARDING THE PROPRIETY OF RESETTLEMENT AND THE USE OF RECONSTRUCTION OF THE RECORD TO REMEDY AN O’RAMA ERROR. IT SHOULD CONCLUDE THAT EITHER ONE WAS AN APPROPRIATE PROCEDURAL ROUTE TO ENSURE THE O’RAMA ISSUE WAS NOT DECIDED ON A FALSE OR MISLEADING RECORD.. . . . . . . . . . . . . . . . . . . . . . . 28 A. The Issue of Whether a Record May Ever Be Resettled to Correct an O’Rama Error Is an Issue of Law Rather than One of Fact, and Necessarily Affected the Evaluation of the O’Rama Claim, Which Was the Basis for the Reversal in the Appellate Division. It Is Therefore Reviewable Here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 B. This Court Has Jurisdiction to Review the Appellate Division’s Decision to Deny Reconstruction under CPL 470.35(2)(C), Which Specifically Authorizes this Court to Review the Corrective Action Taken by an Intermediate Appellate Court upon Reversal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 ii TABLE OF AUTHORITIES Page No. Cases Bohlen v. Metropolitan El. Ry. Co., 121 N.Y. 546 (1890). . . . . . . . . . . 35, 36, 38 People ex rel. Hirschberg v. Orange County Ct., 271 N.Y. 151 (1936). . . . . . . . 40 People v. Adkinson, 88 N.Y.2d 561 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 People v. Alcide, 21 N.Y.3d 687 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 16, 19 People v. Alicea, 229 A.D.2d 80 (1st Dept. 1997) .. . . . . . . . . . . . . . . . . . . . . 23n.3 People v. Bouton, 50 N.Y.2d 130 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48n.7 People v. Carpenter, 52 A.D.3d 1050 (3rd Dept. 2008).. . . . . . . . . . . . . . . . . . . . 35 People v. Ciaccio, 47 N.Y.2d 431 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Cruz, 14 N.Y.3d 814 (2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 People v. Davidson, 89 N.Y.2d 881 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 50 People v. Hetenyi, 304 N.Y. 80 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Hicks, 287 N.Y. 165 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Horton, 308 N.Y. 1 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Ippolito, 20 N.Y.3d 615 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Kadarko, 14 N.Y.3d 426 (2010) . . . . . . . . . . . . . . . . . . . . . 3, 4, 7, 18, 23 People v. Kahley, 105 A.D.3d 1322 (4th Dept. 2013). . . . . . . . . . . . . . . . . . . 35, 50 iii People v. Kissoon, 8 N.Y.3d 129 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 People v. Malloy, 55 N.Y.2d 296 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Martinez, 186 A.D.2d 14 (1st Dept. 1992). . . . . . . . . . . . . . . . . . . . . . . 35 People v. Mays, 20 N.Y.3d 969 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Michalek, 82 N.Y.2d 906 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Minaya, 54 N.Y.2d 360 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 41 People v. Monclavo, 87 N.Y.2d 1029 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Odiat, 82 N.Y.2d 872 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. O’Rama, 78 N.Y.2d 270 (1991). . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 8, 12 People v. Payne, 88 N.Y.2d 172 (1996) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Powell, 101 A.D.3d 756 (2d Dept. 2012). . . . . . . . . . . . . . . . . . 31, 35, 36 People v. Ramirez, 15 N.Y.3d 824 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Richardson, 100 N.Y.2d 847 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . 38 People v. Santorelli, 95 N.Y.2d 412 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Silva, 24 N.Y3d 294 (2014). . . . . . . . . . . . . . . . . . . . . . . . . 2, 3-4, 11, 38 People v. Sprague, 273 A.D.2d 861 (4 Dept. 2000) . . . . . . . . . . . . . . . . . . . . . . 51th People v. Starling, 85 N.Y.2d 509 (1995). . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9, 16 People v. Stewart, 81 N.Y.2d 877 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17 People v. Surpris, 83 A.D.3d 742 (2d Dep't 2011). . . . . . . . . . . . . . . . . . . . . . 11-12 iv People v. Tabb, 13 N.Y.3d 852 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Thomas, 115 A.D.3d 995 (2d Dept. 2014) .. . . . . . . . . . . . . . . . . . . . . . 11 People v. Velasquez, 1 N.Y.3d 44 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 47 People v. Walston, 23 N.Y.3d 986 (2014). . . . . . . . . . . . . . . . 2, 4, 8, 11, 13n.1, 38 People v. Williams, 21 N.Y.3d 932 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . passim Van Valkenburgh v. Bourne, 26 A.D.2d 727 (3rd Dept. 1966). . . . . . . . . . . . . . . 35 Young v. Conway, 698 F.3d 69 (2d Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Statutes C.P.L § 310.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 C.P.L. § 470.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30n.4 C.P.L. § 470.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 C.P.L. § 470.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32, 46 C.P.L.R. 5525. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Other Authorities Arthur Karger, Powers of the New York Court of Appeals, 21.10, p. 771 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 v vi COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : KENNETH NEALSON, : Defendant-Respondent. : -------------------------------------------------------------------- x REPLY BRIEF FOR APPELLANT The People submit this reply brief in response to defendant’s respondent’s brief. POINT ONE DEFENDANT’S ATTEMPTS TO RE-WRITE THE RATIONALES SUPPORTING THIS COURT’S PRIOR DECISIONS REQUIRING PRESERVATION WHERE A JURY NOTE IS FULLY DISCLOSED TO COUNSEL SHOULD BE REJECTED, BOTH BECAUSE OF THE LANGUAGE OF THOSE DECISIONS AND BECAUSE OF THE FACTS AND OUTCOMES IN THOSE CASES. As demonstrated in the People’s opening brief, this Court’s decisions in People v. Williams, 21 N.Y.3d 932 (2013), and at least four other cases required preservation of claims that the trial court failed to follow People v. O’Rama, 78 N.Y.2d 270 (1991), on the ground that the entire contents of the jury notes in those cases had been disclosed to counsel. By contrast, cases in which this Court has found mode-of-proceeding errors in which preservation was not required all involved the failure to disclose the full contents of the jury’s notes to the defense. See, e.g., People v. Silva, 24 N.Y3d 294, 299-301 (2014); People v. Walston, 23 N.Y.3d 986, 990 (2014); People v. Kissoon, 8 N.Y.3d 129, 134-35 (2007); O’Rama, 78 N.Y.2d at 279. Here, because the entire contents of the jury’s notes were disclosed to counsel, preservation was required and the Appellate Division’s conclusion to the contrary should be reversed. In his Respondent’s Brief, defendant makes two main arguments supporting the Appellate Division’s reversal. First, he argues that the People have incorrectly interpreted this Court’s decisions in Williams, as well as in People v. Alcide, 21 N.Y.3d 687 (2013), People v. Ramirez, 15 N.Y.3d 824 (2010), and People v. Starling, 85 N.Y.2d 509 (1995), all of which allegedly required preservation because the jury notes in those cases were only “ministerial” rather than substantive. Second, defendant complains that counsel here had no proper opportunity to object and have input, even though the jury notes were fully read aloud to him, on the record, in open court, before the court’s response. Defendant is wrong on both counts. 2 Not one of the decisions in Williams, Alcide, Ramirez, or Starling finds that the jury notes in those cases were ministerial or holds that the distinction between ministerial and substantive notes was dispositive of the defendant’s claim. Indeed, in each case, this Court expressly based its decision on the fact that counsel had been provided the entire content of the jury’s note or notes. Moreover, defendant’s theory also fails because the premise is incorrect, as the notes in several of these cases were unquestionably substantive in nature. The jury’s note in Williams, for example, specifically asked for clarification of a legal issue and thus the note could not realistically be characterized as ministerial. Similarly, the note in People v. Kadarko, 14 N.Y.3d 426 (2010) – a decision of this Court discussed in the People’s opening brief but that defendant ignores entirely – was unquestionably substantive because it detailed the split in the jury’s vote on each count, leading to an Allen charge – just like the note in O’Rama itself. Because this Court required preservation for the substantive notes in Williams, Kadarko, and other cases, defendant’s use of the ministerial-substantive dichotomy as an explanation for these decisions cannot be correct. Indeed, under defendant’s theory, not only requests for readbacks and instructions would be ministerial, and therefore outside of O’Rama’s reach, but requests for clarification of legal terms and deadlock notes would be as well. This Court’s jurisprudence does not allow that interpretation. See, e.g, Silva, 24 N.Y.3d at 3 297-98, 300-01 (notes requesting transcript and judge’s instructions on weapon possession count were substantive); Walston, 23 N.Y.3d at 990 (note requesting reinstruction on law and “intent” substantive); Kisoon, 8 N.Y.3d at 134-35 (deadlock note substantive and failure to disclose entire note was mode-of-proceedings error). Moreover, as explained below, defendant’s opportunity to object here was more than sufficient under this Court’s precedent. Indeed, this case is, in this regard too, no different from Williams. There, the trial court read the substantive jury note out loud in open court and immediately proceeded to respond. See Williams, 21 N.Y.3d at 934. Here, too, the trial court read the note out loud, in open court in front of the jury, defendant, and counsel, and then proceeded to respond. Williams’ holding that preservation is required under such circumstances is therefore controlling here. Furthermore, contrary to defendant’s contention, the burden of objecting is not too great simply because deliberations have commenced. All counsel had to do, after all, was ask for a sidebar to address the issue, and this would hardly have been an offensive request raising the “ire” of the jury, as defendant argues. Furthermore, this Court has previously required defendants to object on O’Rama grounds during deliberations, and in front of the jury, see People v. Stewart, 81 N.Y.2d 877 (1993), and has even required defendants to object although the note is not fully disclosed until after deliberations, see Kadarko, 14 N.Y.3d at 428-30. Under 4 this caselaw, defendant here in fact had two adequate opportunities to object: he could have asked for a sidebar when the court disclosed the entire contents of the note, or could have discussed the matter with the judge immediately after the response – the same opportunity found sufficient in Kadarko. Because he failed to take advantage of these opportunities, defendant failed to preserve his O’Rama claim for review. A. This Court’s Decisions in Williams, Alcide, Starling, Ramirez, and Kadarko, Do Not Turn on Whether the Notes Were Substantive or Ministerial, but on Whether the Full Contents of the Notes Were Disclosed. Defendant’s primary contention in response to the People’s opening brief is that the People have misinterpreted this Court’s precedent in at least four cases holding that preservation of an O’Rama claim was required: Williams, Alcide, Starling, and Ramirez. According to defendant, preservation was unnecessary in those cases because the jury notes were merely ministerial rather than substantive, and, under this Court’s jurisprudence, the O’Rama protocol does not apply to ministerial notes. As discussed below, defendant’s distinction as an explanation for the four cases he cites requiring preservation is wholly untenable for at least three reasons. First, those decisions do not find that the jury notes in those cases are 5 ministerial, much less that this distinction is dispositive. By contrast, in each of these cases, this Court finds dispositive that counsel had adequate notice of the notes, and particularly that the entire contents of the notes were disclosed to counsel – the same basis for decision relied upon by the People in their opening brief. Second, the jury notes in at least some of the cases cited by defendant could not fairly be characterized as ministerial under any realistic conception of that term. Thus, even ignoring the language of the decisions themselves, defendant’s interpretation does not explain the prosecution-favorable outcomes in those cases. Third, defendant totally fails to address or even cite Kadarko, in which the defendant’s contention regarding an unquestionably substantive note – one virtually identical to the note in O’Rama itself – had to be preserved because the entire contents of the note were eventually disclosed to counsel and counsel nevertheless failed to object. Here too, defendant’s interpretation cannot explain either the language or the outcome of the case. Thus, defendant’s ministerial-substantive distinction should be rejected as a basis for this Court’s prior decisions requiring preservation of O’Rama claims. The first flaw in defendant’s interpretation of this Court’s precedent is evident from even a cursory examination of the cases he cites in support of it. Although defendant insists that Ramirez, Starling, and Alcide all held that preservation was required because the jury notes in those cases were ministerial, not 6 one of those cases finds the jury notes at issue to be ministerial, or indeed even so much as mentions the word “ministerial” anywhere in the decision. See also Kadarko, 14 N.Y.3d at 428-29 (requiring preservation for O’Rama without finding note ministerial or even mentioning the word “ministerial). It is difficult to imagine that the basis for the decisions in those cases was the ministerial character of the notes considering that this Court made no reference to that concept whatsoever in any of those cases. And, while Williams, also cited by defendant, does technically at least use the word “ministerial,” it did not do so in the context of the O’Rama claim, but rather in addressing a separate purported error in delegating a judicial duty to a court officer. See Williams, 21 N.Y.3d at 935 (after addressing O’Rama jury note claim, this Court addressed defendant’s additional unlawful delegation claim, writing, “Nor did the court commit a mode of proceedings error by delegating delivery of its answer to a jury question to a court officer. That task was in this context practically ministerial”). Considering that the Williams Court specifically relied on the ministerial-substantive distinction with regard to a different claim, but not with regard to analysis of the O’Rama jury note claim, it is, again, hard to conceive that the basis for the Court’s decision on the O’Rama issue was the ministerial-substantive distinction. 7 Even more telling is the actual basis for the decision relied upon by this Court in each one of the cases cited by defendant. In each case, this Court specifically relied on the fact that defense counsel had adequate notice of the jury note in the circumstances of those cases. See, e.g., Williams, 21 N.Y.3d at 935 (“Where, as here, defense counsel had notice of a jury note and ‘failed to object . . . when the error could have been cured,’ lack of preservation bars the claim.”; citing Ramirez); Alcide, 21 N.Y.3d at 694 (“As in Starling . . . and unlike O'Rama, the two jury notes . . . were disclosed in their entirety in open court before the trial judge responded to them.”); Starling, 85 N.Y.2d at 516 (“Because the court read the entire content of the jury’s notes in open court prior to responding, this case is distinguishable from the situation presented in People v O'Rama (78 NY2d 270), where the trial court withheld from counsel the contents of a juror's note, thereby depriving defendant of the opportunity to participate in formulating the court's response.”). In fact, this Court recently emphasized that the decision in Starling turned on the court’s full disclosure of the note’s contents rather than the substantive- ministerial dichotomy that defendant presses in his brief. See Walston, 23 N.Y.3d at 989 (“We have acknowledged that some departures from O'Rama procedures are subject to our rules of preservation, such as where the court reads the ‘entire content’ of the note verbatim in open court prior to responding to the jury,” and noting, using 8 italics for emphasis, that in Starling, the trial “court read the entire content of the notes in open court.”) (citing Starling, 85 N.Y.2d at 516). Furthermore, in Williams, the adequate notice consisted solely of reciting the note in open court immediately before responding, and in Kadarko, consisted of disclosing the full contents of the note after the court’s response. Thus, the rationales used in the decisions defendant cites do not comport with the interpretation he now gives those cases, and in fact contradict that interpretation. Second, even if this Court were to disregard its own language in each of these cases, defendant’s interpretation would not explain the results of the decisions he cites. While defendant relies on the ministerial-substantive distinction as dispositive of the need for preservation, at least some of the cases in which this Court required preservation unquestionably involved substantive notes. Thus, in Williams, for example, the “jury note requested clarification of a legal term.” Williams, 21 N.Y.3d at 934. This was more than a mere request to be re-read legal instructions previously given; it was, by this Court’s own description, a request for “clarification” of a legal concept. Because such “clarification” could necessarily be delivered in any number of ways, and this was in fact the second such request in Williams for clarification on the same issue, there can be no question that the note involved more than a ministerial matter. 9 Defendant nevertheless argues that “the only proper meaningful response [to the note in Williams]. . . . was a re-reading of relevant portions of the final instructions” (Defendant’s Brief, p. 34), and the note was thus ministerial rather than substantive. But he does not explain why re-reading previously given instructions was the only meaningful response to this request. To the contrary, a request for “clarification” implies the jury did not understand what they heard previously, and a re-instruction with the same language would do little to remedy that situation. And the fact that the jury made a previous request for clarification even further supports the conclusion that the jury was confused about the legal issue, and that simply re- reading the instruction that had been given previously would likely not have been adequate. Indeed, under these circumstances, a simple re-read of the court’s earlier charge could result in a challenge to the meaningfulness of the court’s response. See, e.g., People v. Malloy, 55 N.Y.2d 296, 302 (1982) (court must “respond meaningfully to the jury's request for further instruction or information.”). Moreover, defendant’s line of demarcation between ministerial and substantive notes is far off the mark, as his rule would denominate as ministerial not only any request for a readback of testimony (Alcide) and any request for re- instruction on the law (Ramirez), but also any request for clarification of a legal concept (Williams). While such a rule would be highly favorable to the prosecution, 10 as it would place most jury notes outside the requirements of O’Rama and thus eliminate such claims as to those notes, this Court’s decisions simply do not support that conclusion. Indeed, this Court has found jury notes to be substantive and ruled that no preservation is required for the failure to disclose the entire contents of the notes in cases in which defendant would describe the notes as merely ministerial. In Silva, this Court held that O’Rama applied to a request for “judges [sic] instructions on count # 3 - weapon possession” and that the failure to give counsel notice of the note was a mode-of-proceedings error under that case. And in the companion case, People v. Hanson, this Court applied O’Rama and found a mode-of-proceedings error with regard to notes requesting readbacks – one requesting the “First Det. Statement” and the second specifying, “To clear up the first note, we would like to hear Det. Moss [sic] direct examination.” See Silva, 24 N.Y.3d at 297-98, 300-01; see also Walston, 23 N.Y.3d at 988, 990 (jury note requesting “Judge[’]s directions on Manslaughter/Murder in the Second Degree -(Intent)” was substantive). Similarly, the Second Department, the same court that reversed the conviction in this case, has interpreted similar requests, and specifically a request for clarification on the law, to be substantive. See, e.g., People v. Thomas, 115 A.D.3d 995, 996 (2d Dept. 2014) (“The jury's request for ‘clarification’ was not a request for a ‘mere ministerial readback’ of the Supreme Court's charge”); People v Surpris, 83 A.D.3d 742, 744 (2d 11 Dep't 2011) (request for item not admitted into evidence was substantive juror note). Obviously, these requests cannot be both ministerial, as defendant claims, and substantive, as this Court held in Silva and Walston and as the Second Department held in Thomas and Surpris. Third, and tellingly, defendant does not even cite or attempt to distinguish Kadarko, a case directly on point, which fatally undermines defendant’s position that disclosure of a substantive jury note for the first time on the record in open court constitutes a mode-of-proceedings error. Kadarko found that preservation was required to review an O’Rama claim where the trial court disclosed the contents of a jury note only after the court had delivered its response to the jury, and the jury note in that case involved a substantive matter – the jury had indicated, via a numerical breakdown of votes, that it could not reach a verdict, thus prompting the court to deliver an Allen charge. See O’Rama, 78 N.Y.2d at 275, 279-80 (juror’s note indicating difficulty in reaching a verdict and disclosing the jury vote deemed a “substantive juror inquiry.”). Kadarko proves, contrary to defendant’s ill-conceived position, that a court need only disclose a substantive jury note in full to avoid committing a mode-of-proceedings error, regardless of when the disclosure occurs. Once the court executes verbatim disclosure, a party must object to preserve any 12 claim that the trial court failed to comply with O’Rama, even for an unquestionably substantive jury note. Because defendant’s position is wholly unsupported by this Court’s stated rationales in a single one of the cited cases finding that preservation was required and because it cannot even explain the outcomes in those cases without1 drastically altering the meaning of “ministerial,” defendant’s interpretation cannot be sustained. Moreover, the rationale actually adopted by the court in those cases – that preservation was required because the full contents of the note were disclosed to counsel – compels the conclusion that the Appellate Division erred below. Counsel’s current interpretation is also unsupported by even their own prior filings in this Court. 1 Although counsel now chastises the People for an approach that is too “simplistic” and posits that O’Rama decisions have “always turned on whether the communication at issue was substantive or ministerial” (Defendant’s Brief, p. 26, 37), counsel very recently took a different position, advancing the very interpretation espoused by the People here. In People v. Walston, defendant’s appellate counsel argued in this Court that “counsel’s opportunity to hear the full contents of a jury request is the key difference between a mode of proceedings error and one requiring objection” (Appellant’s Brief in Walston, pp. 21-22) (italics added). Moreover, this Court adopted that interpretation in Walston. As this Court stated: “We have acknowledged that some departures from O'Rama procedures are subject to our rules of preservation, such as where the court reads the ‘entire content’ of the note verbatim in open court prior to responding to the jury. Walston, 23 N.Y.3d at 989. Counsel’s attempt to re-write the past based upon a new-found understanding of decades of settled caselaw should thus be rejected. 13 B. Defendant’s Opportunity to Object to the Handling of the Notes Before, During, and after the Court’s Response Was More than Sufficient under this Court’s Caselaw to Place the Burden of Preserving the O’Rama Issue on Defendant. After the full contents of the jury notes were read aloud, defendant had a more than adequate opportunity to object to the handling of the notes. Indeed, doing so would have required little more than asking for a sidebar once he learned the full contents of the notes. Moreover, under this Court’s decision in Kardarko, even the post-response opportunity to object would have been sufficient to place the burden of preservation on defendant. Nevertheless, defendant argues that the court’s on-the- record disclosure in this case amounted to a mode-of-proceedings error because the court immediately “launched into” its response, and, according to defendant, objecting at this sensitive, mid-deliberations moment in the proceedings could have raised the “ire” of the jurors (Defendant’s Brief, pp. 31, 40). Contrary to this contention, this Court has specifically held that preservation is required under precisely these circumstances, expressly imposing the obligation on defense counsel of objecting in front of the jury in open court during the course of deliberations, and rejecting the argument that this requirement is too onerous. First, the facts in this case are no different from this Court’s decision in Williams, in which this Court required preservation. In that case, during 14 deliberations, the jury sent out several notes requesting further legal instruction – one of which requested “clarification of a legal term.” Williams, 21 N.Y.3d at 934. The trial court’s response, as recited by this Court, was as follows: “after asking the jury to return to the courtroom, the court read the note out loud before responding directly to the jury.” Id. Thus, as the decision indicates, the note was read aloud to the jury and defense counsel in open court, and the trial court “respond[ed] directly to the jury.” Id. These very same words are applicable to this case, for that is precisely what the trial court did here – call the jury out, read the note out loud, and “respond directly to the jury.” Moreover, an examination of the record in Williams confirms the fact that the trial court there too “launched” directly into its response. The appellant’s brief and the appendix in that case reveal that after receiving a jury note, the court announced “We have received a note. Bring them in.” See People v. Williams, App. Appendix: A-207; App. Brief at 13. After the jury entered, the Court stated, “You want to hear about acting in concert. The law says that under some circumstances ….,” then discussing the concept of acting in concert at length. Id. The court thus2 The trial court in Williams subsequently delivered extensive instructions on both acting in2 concert and intent, differing in content from its original charge on the issue. For example, unlike the main charge, the court told the jury in response to the note that “it’s not required that the People prove the identification of a person with whom a defendant may have been in concert, nor do the People have to prove how many persons were in concert during a criminal transaction.” Williams, App. Appx. A-208. Similarly, unlike in the main charge, the court stated that the law provided a 15 took no break between identifying the note and providing the response, nor did it otherwise provide an express opportunity to defense counsel to intervene. Nevertheless, this Court held that because defendant knew the contents of the note, he was required to object, and his failure to do so rendered the claim unpreserved. Because, in Williams, reading the note aloud in open court and immediately “launching into” the response was a sufficient opportunity for defense counsel to object, and because the trial court followed the same procedure here, Williams compels the conclusion that the opportunity provided to counsel to object was sufficient here. Second, this Court has specifically rejected the arguments advanced by defendant here – that the burden of objecting in front of the jury during deliberations is too onerous – in other cases. This Court dealt with just such a contention in Alcide, where defendant maintained that an objection in front of the jury to the court’s handling of the note would be prejudicial. This Court rejected the argument, noting that “there is always a danger that, by objecting, a trial attorney will draw the jury's attention to something unfavorable to his client, or give the appearance of being argumentative or attempting to conceal evidence. Nonetheless, counsel in a criminal “fair system going back about 7,000 years.” Id. at A-210. The court did thus not simply re-read its prior instructions on the law, but sought to “clarify” the issue, as the jury had asked. 16 trial is responsible for bringing error to the court's attention ‘at a time when [it] . . . could have been obviated.’” Alcide, 21 N.Y.3d at 696 (quoting Starling, 85 N.Y.2d at 516). The same is, of course, true here. Similarly, in People v. Stewart, 81 N.Y.2d 877, 878-79 (1993), this Court also imposed on counsel precisely this same obligation. “[D]uring the course of the additional instructions, some jurors orally requested instructions regarding intoxication and intent, spontaneity, and whether or not the submitted counts were linked,” and on appeal, defendant claimed that “he was denied an opportunity to discuss with the court any supplemental instructions before such instructions were actually given.” This Court nevertheless deemed the issue to be unpreserved because counsel did not object to the procedure or to the Court’s answers as they were given. No more onerous a burden would be placed on counsel in this case. See also People v. Ippolito, 20 N.Y.3d 615, 625 (2013) (defense counsel “was present when the [juror’s] question was asked and answered [in open court], yet failed to object at that time, when the judge could have easily cured the claimed error.”); People v. Mays, 20 N.Y.3d 969 (2012) (Preservation required where “defense counsel was aware of the content of the jurors' comments, which were made out loud in open court, and did not object to anything the judge or prosecutor did in response.”). 17 Third, in Kadarko, this Court held that even where the note is not fully disclosed until after the trial court’s response – and thus O’Rama’s “core requirements” are not satisfied until that time – counsel had a sufficient opportunity to object, and this Court therefore required preservation. As this Court made clear in that case, even after a response, counsel has the opportunity to address the court and to ask for an additional instruction or for a correction, just like after the final charge to the jury. See Kadarko, 14 N.Y.3d at 428-30. Because this opportunity was adequate in Kadarko, the pre-response opportunity to object here was necessarily sufficient as well. Defendant nevertheless argues that the opportunity to object in front of the jury was inadequate because it could have provoked the “ire” of the court or the jurors, and requires counsel to “simultaneously digest the meaning of a jury communication at the same time [counsel] considers a court’s extemporaneous, previously-unheard response” (Defendant’s Brief, p. 31). But, as this Court noted in Alcide, any objection, at any point during trial, interrupts the flow of the proceedings, and oftentimes a party must interject during the testimony of a witness, and/or while opposing counsel or the court are speaking, in order to register a protest. This may, quite possibly, arouse the ire of someone in the courtroom, whether that be the court, the jury, or one’s opponent. If we allow the mere possibility of “ire” to govern when 18 a party must object, and when an objection is not required, then the rules of preservation would be effectively nullified, since all objections can have this effect. Whether an error affects the mode of proceedings at trial should thus not turn on the likelihood that a litigant’s words will provoke a feeling of annoyance which, in all likelihood, is forgotten as rapidly as it first appears. See Alcide, 21 N.Y.3d at 696. Nor is defendant correct in contending that counsel must immediately process and formulate a response when an inquiry from the jury is fully revealed on the record in open court. As noted above, all counsel needs to say is, “May we have a sidebar, Your Honor?” See, e.g., Alcide, 21 N.Y.3d at 696 (“And, of course, defense counsel always could have objected and asked to approach the bench to discuss the matter at sidebar, out of the jury's hearing”). Not only is this a polite way of dealing with the court’s lapse and, thus, certain to avoid the potential for the “ire” that defendant fears, but the sidebar will afford counsel a chance to discuss the note with the court and the prosecutor, and give counsel the time needed to think about an appropriate reply. Defendant fails to address this obvious approach to any problems posed by an open-court disclosure, in full and verbatim, of a jury note. Additionally, in this case, defense counsel was hardly a “shrinking violet.” Indeed, counsel all but called the trial judge a liar when discussing another issue during trial. Prior to opening statements, defense counsel alleged that the People 19 had withheld critical information, and counsel brashly accused the court of not taking his claim seriously. When the court assured counsel, “I take everything seriously,” counsel retorted, “I don’t believe this court has, Judge.” Apparently taken back by counsel’s forceful words and demeanor, the court once again assured counsel, “I take seriously everything told to me. I listen carefully and I try to understand” (A-37 to A- 39). Counsel’s conduct thus unequivocally demonstrates that counsel was not afraid to confront the court, and would have done so had the court truly ran afoul of O’Rama. Hence, whether viewed generally or under the specific facts of this case, there is little to support defendant’s claim that an attorney would withhold an objection to an O’Rama error because he or she fears that the court would express irritation. Moreover, in light of Kadarko’s approval of a post-response opportunity to object, the other concerns defendant specifies – that on-the record disclosure prevents counsel from processing the meaning of the note and the “propriety of the court’s response,” allegedly robbing the court and the parties of the chance to discuss the possible meaning of the jury’s words (Defendant’s Brief, pp, 29-30) – are only valid when the court does not make full substantive disclosure of the note, much like in O’Rama, Walston, and Silva. When, as here, jury notes are disclosed in full, the result is the same whether or not the verbatim disclosure occurs before or after the 20 jury returns to the courtroom. Notwithstanding the timing of the disclosure, apprising counsel of each and every word in the note gives counsel everything they need to process the substance of the note and to evaluate the court’s response. Full disclosure also gives counsel all the ammunition they need to discuss the note’s meaning with the court and the prosecutor, and to suggest appropriate responses. Hence, defendant’s concerns do not apply where, at most, the court commits an error of timing rather than substance. Defendant also contends that a timing error amounts to a mode- of–proceedings error because it leads to what defendant deems to be an irreversible consequence – counsel will not be able to stop the court from giving the jury a “potentially harmful” response. Defendant claims that by this point, any objection “will likely be futile, even if the court sustains it and modifies the response accordingly” because the proverbial bell cannot be unrung (Defendant’s Brief, p. 30). This is simply an incorrect statement of the law. This Court has long held that the “last words” imparted by a court to a jury – such as instructions that come after a party asks for corrected or additional instructions -- have the greatest effect on the jury’s deliberations. See, .e.g., People v. Ciaccio, 47 N.Y.2d 431, 436 (1979) (“Where the court's instructions are supplemental, coming after the jury has already once retired, they may well be determinative of the outcome of the case, coming as they do 21 in response to questions raised by the jurors themselves.”); People v. Hetenyi, 304 N.Y. 80, 86 (1952) (“These last words of the court to the jury upon the subject of the holster must be taken, we think, to have reduced the evidentiary significance of that object to a minimum in the minds of the jury.”). In other words, whatever instruction is given to the jury, it can be effectively cured if a court delivers a proper later charge correcting the error. See, e.g., People v. Horton, 308 N.Y. 1, 15 (1954) (trial court corrected its own instructions, prompting this Court to comment, “It is difficult to conceive of a clearer statement, or one more perfectly designed to set aright any misunderstanding which any juror might have gained from the misuse of one word in the original charge”); People v. Hicks, 287 N.Y. 165, 174 (1941) (“Upon the appeal no question was presented by the record whether the original charge was correct, for error there, if any, was cured by the subsequent instructions. The court did not pass upon the correctness of the original instructions which were superseded or, at least, explained by the later instructions”). Were this not the case, an error in a court’s instructions would never be correctable; the erroneous instructions, once uttered, would have an irreversible, binding effect, requiring, without exception, a mistrial or a reversal on appeal in all such cases. And, importantly, in Kadarko, this Court required preservation based on a post-response opportunity to object in even the most sensitive of mid-deliberations 22 contexts – where the jury reports a split vote and the court delivers an Allen charge. See Kadarko, 14 N.Y.3d at 428. Because counsel could still effectively object at that later point, and additional instructions from the court based upon counsel’s suggestions would be adequate to correct any error, even though they came after the court’s initial response to the note, the opportunity to object or ask for a sidebar here prior to the court’s response cannot be fairly categorized as “futile.” Defendant contends that, had he been consulted, he could have suggested alternative responses to the notes, and explains, in great detail, all the things he would have told the court, but did not (Defendant’s Brief, pp. 40-42). But these newly minted objections miss the point. While counsel could have raised other arguments,3 he did not. Because of this failure, his claim is unpreserved for this Court’s review. Nor were the jury notes here so confusing or intractable that the opportunity to address them before, during, and after the court’s response was insufficient under the particular facts of this case. The notes here were no more This argument is also highly suspect in light of the unmistakably clear evidence that defense3 counsel did, in fact, participate in formulating the court’s actual responses at a sidebar conference prior to bringing the jury out, as the resettled record demonstrates. Given the evidence of defendant’s participation, and the fact that the court’s instructions were correct, defendant’s current claim that he would have told the court to say something other than what it did is, most likely, one “tailored for litigation.” People v. Alicea, 229 A.D.2d 80, 88 (1st Dept. 1997) (“Trial counsel's testimony that he would have used the statements regardless of his particular strategy because they involved a ‘basic point’ is, of course, speculative and, like his rejected testimony that he never received the reports in issue, suspect as being tailored for litigation.”). 23 challenging than the notes in Williams and Ramirez. According to defendant, the notes in those cases were completely ministerial, straightforward, and did not require counsel’s input, yet he describes the notes in this case as “susceptible of several meanings,” and that “counsel’s input could certainly have contributed to the meaningfulness of the court’s responses” (Defendant’s Brief, pp. 40-41). A comparison of the jury notes in this case with the ones in Williams and Ramirez, however, demonstrates that the distinction defendant draws has no basis. For example, here, the jury’s first and third notes asked the court to explain the“[d]ifference between robbery in the first degree and second degree” (A-5), and to “clarify” the law regarding first and second degree robbery (A-7). But in Williams and Ramirez too, the jury asked for “clarification” on the law. There is no reason to believe that the clarification requested here was any more difficult, or “substantive,” than the clarification in those other cases. In addition, defendant’s argument that the second jury note –which requested a reinstruction on the charges -- was “ambiguous” and required substantive feedback from counsel, is also dubious at best. Indeed, defendant himself describes requests for readbacks of jury instructions as ministerial, as they can only be answered one way – by reading back the charges. At the very least, such a request is far more straightforward than the substance of the jury notes in Williams and 24 Ramirez. Hence, this Court should note the inconsistency between defendant’s attempt to portray the jury notes in Williams and Ramirez as needing no input, and the notes in this case as needing an abundance of input, since this inconsistency shows that defendant’s arguments lack credibility, and collapse upon examination. Simply put, this request was not so extraordinary that counsel could not have formulated a response before, during, or after the court’ response. Moreover, this Court should also reject defendant’s portrayal of the court’s responses as confused and “incorrect.” The first note asked for an explanation of the “[d]ifference between robbery in the first degree and second degree” (A-5). The court then instructed the jurors that Robbery in the First Degree had “an extra element, that element being the serious physical injury” and contrasted that with Robbery in the Second Degree which requires that another person be “actually present” (A-10). This “difference” between the two crimes, as described by the court, was entirely correct. Moreover, the court gave a concise response because the jury did not ask for a readback of the charges at this point. Rather, the jury asked the court to cut to the heart of the matter and to explain what distinguished Robbery in the First Degree from Robbery in the Second Degree. The only way to answer such a request was to highlight the critical distinction between the two: that first-degree robbery required “serious physical injury,” while second-degree robbery required another 25 “person actually present.” This explanation did not, as defendant asserts, distinguish the two “at the expense of all the other elements the People had to prove” (Defendant’s Brief, p. 41). The court never stated that the other elements of the crimes were no longer in play, or that the People did not have to prove the other elements. Furthermore, in response to the jury’s next note, the court re-read the elements of all the crimes to the jury (A-6, A-10 to A-22), thus reminding the jurors of each element of each crime that the People were required to prove. Still further, at the end of the court’s response to the next note, the jury foreperson replied, “I think you answered our question” (A-24), which indicates that the court’s response reflected a correct understanding of the jury’s question. T h e foreperson’s positive assessment of the court’s response undermines defendant’s contention that the court’s response was “confusing.” If that were the case, the foreperson would have said so, rather than confirming that the court’s answer was on- point. At the very least, the jury would have sent another note requesting additional instructions. And, despite what defendant claims, the court’s instructions were legally correct. The court essentially told the jurors that “serious physical injury” was an element of Robbery in the First Degree, and that “physical injury” was an element of Assault in the Second Degree (A-24), precisely as it did during its final instructions. 26 If anything, the court’s correct response to the jury’s note was little more than a readback of select elements that the jury expressed confusion over. Finally, and critically, counsel had an opportunity to object to the charge actually given, just like in Kadarko and just as with any other instruction. If he felt the actual words used by the trial court were insufficient or misleading, he could have said so and, if the court agreed, a reinstruction could have been given. He did not, and his failure, despite full knowledge of the contents of the note, and having had the benefit of hearing the court’s response, rendered his current arguments unpreserved for review. In short, defendant’s opportunity to object, or simply ask for a sidebar, here, was no less than the opportunity to object in either Williams or Kadarko. Nor was the burden to do so too high in light of this Court’s rejection of these same arguments in Alcide, and in light of the same mid-deliberations open-court obligation to object being placed on counsel in Stewart, Ippolito, and Mays. Because defendant here was read the entire contents of the note and then had an opportunity to object or ask for a sidebar before, during, and after the court’s response, and because defendant failed to do so, defendant’s claim is unpreserved, just as in each of the above cases. And defendant’s attempt to re-write the rationales for the rulings in those cases, as well as the cases in which mode-of-proceedings errors were in fact found, is 27 precluded by the language of the decisions, as well as by their facts and outcomes. POINT TWO THIS COURT HAS JURISDICTION TO REVIEW THE APPELLATE DIVISION’S DETERMINATIONS R E G A R D I N G T H E P R O P R I E T Y O F R E S E T TLEMENT AN D T H E U S E O F RECONSTRUCTION OF THE RECORD TO REMEDY AN O’RAMA ERROR. IT SHOULD CONCLUDE THAT EITHER ONE WAS AN APPROPRIATE PROCEDURAL ROUTE TO ENSURE THE O’RAMA ISSUE WAS NOT DECIDED ON A FALSE OR MISLEADING RECORD. In his brief, defendant disputes the reviewability of the resettlement of the record and the Appellate Division’s denial of reconstruction. He also claims that neither remedy is appropriate to correct the kind of error here. Defendant is wrong on all counts. At the outset, it is important to note that defendant does not dispute that the trial court’s conclusion at the resettlement hearing was correct, based on the evidence set forth in the motion papers or the proceedings before the trial court. Indeed, it would have been very difficult to do so, as the People came forward with substantial evidence that the jury notes were, in accordance with the trial court’s general practice, shown to counsel before the jury was brought out. This included the specific and detailed recollection of the prosecutor, which comported with the trial 28 court’s custom and practice. Because this is the critical issue in this case – whether counsel was shown the notes and had an opportunity for input – and because counsel had that opportunity, there is a compelling reason here, and in similar cases, to provide some mechanism or opportunity for the transcript to be rendered both complete and accurate and for the drastic remedy of reversal based on a presumed, but false, fact to be avoided. Yet, the Appellate Division here provided no such opportunity, and defendant argues that this Court is powerless to correct the error. It would indeed be unfortunate, and disturbing, if this Court were powerless to ensure that the proceedings below are judged by what actually occurred at trial or to prevent convictions from being reversed on the basis of demonstrably false facts. Fortunately, this Court is not in such a position, as defendant’s arguments against review here and resettlement and reconstruction below are unavailing. This Court has the power to review both the resettlement and the reconstruction issues raised below by the People. Resettlement was rejected not on any factual or discretionary ground, but because the Appellate Division has ruled that resettlement cannot, as a matter of law, ever be used to correct an O’Rama error. Moreover, what constitutes the record on appeal is a legal question, not a factual one. And, contrary to defendant’s contention, the resettled record was absolutely dispositive on the question upon which the Appellate Division reversed. Still further, 29 regardless of the reviewability of the resettlement effected by the trial court, the propriety of the remedy afforded by the Appellate Division – in this case outright reversal of the conviction rather than the requested reconstruction hearing – is always reviewable, by the express terms of section 470.35(2)(c) of the Criminal Procedure Law. Here, reconstruction was the appropriate remedy for an untranscribed, and dispostive, proceeding, See People v. Velasquez, 1 N.Y.3d 44 (2003). A. The Issue of Whether a Record May Ever Be Resettled to Correct an O’Rama Error Is an Issue of Law Rather than One of Fact, and Necessarily Affected the Evaluation of the O’Rama Claim, Which Was the Basis for the Reversal in the Appellate Division. It Is Therefore Reviewable Here. Defendant claims that the resettlement question presented by the People on appeal does not present an issue of law for this Court’s review because the Appellate Division did not make any findings of fact regarding the evidence presented by the People in support of resettlement and this Court “has no independent fact-finding power to do so” (Defendant’s Brief at 48). Defendant’s argument is incorrect and should be rejected.4 The resettlement issue is fully preserved. The People moved for resettlement before the trial4 court, which granted the People’s motion. The People also raised the trial court’s findings in our respondent’s brief before the Appellate Division, asking that court to reject defendant’s claim based, inter alia, on the resettled record, or, at the very least, to grant a reconstruction hearing to further develop the record. Since the People registered a “protest” to the existing record by moving for resettlement, and brought the findings of the motion court to the attention of the Second Department, the issue is preserved for this Court’s review. See CPL 470.05(2) (an issue is preserved when a party registers a specific protest). 30 Contrary to defendant’s contention, the Appellate Division was not required to reach the underlying facts of the resettlement issue to bring it within the purview of this Court. The issue of law properly before this Court is whether resettlement is ever appropriate to resolve an O’Rama issue. The fact that the Appellate Division did not reach the facts as found by the trial court demonstrates that the court resolved this issue on precisely this legal ground – that, as a matter of law, resettlement cannot be utilized for this purpose. Thus, the Appellate Division’s refusal to consider the reconstructed facts is not a bar to review, it presents the precise legal issue the People seek to raise in this Court. That the legal issue of whether resettlement is ever appropriate for an O’Rama error was the basis for the decision of the Appellate Division is also evident from the Second Department’s citation to its decision in People v. Powell, 101 A.D.3d 756 (2d Dept. 2012). In that case, the court rejected, on the law, the evidence adduced via the People’s resettlement motion because the court concluded that resettlement was not an “appropriate remedy” or a “proper basis” to address an O’Rama claim. The fact that the Second Department did not delve deeply into the resettlement issue in this case, whether legally or factually, is explainable by the fact that the court already did so in Powell, and did not see a need to do so again. Given that Powell makes it plain that the Second Department has rejected resettlement as a 31 matter of law when it comes to O’Rama claims, and given that the Second Department relied upon Powell in this case, there is no support for the proposition that the Appellate Division made a factual or discretionary determination in rejecting the resettled record. Defendant also argues that the resettlement issue is unreviewable under CPL 470.35(2)(a) because the Second Department’s decision regarding the issue was not the “basis for” the Second Department’s reversal (Defendant’s Brief at 49). Under CPL 470.35(2)(a), this Court is empowered to review, upon an appeal from an Appellate Division reversal, “[a]ny question of law which was determined by the intermediate appellate court and which, as so determined, constituted a basis for such court's order of reversal or modification.” Here, the issue upon which the Appellate Division reversed, that defendant had no actual notice of the contents of the jury note prior to calling the jury out, cannot be divorced from the issue of what facts or record can be reviewed to determine whether this obligation was satisfied. Indeed, the record that the Appellate Division refused to consider – as a matter of law – was wholly dispositive of the very issue upon which it reversed. The Appellate Division posited that the trial court was required to disclose the content of the note before the jury was brought into the courtroom, and the trial court found, upon resettlement, that the contents of the notes had been disclosed at bench 32 conferences before the jury was ever brought in. Had the Appellate Division considered this record, it could not have reversed. As such, it was integral to, and part of, the “basis for such court’s order of reversal or modification.” Moreover, the purpose of the statutory provision would not be thwarted by review here. The purpose of the statutory bar to review of issues that were not the basis for reversal below is to prevent a litigant from raising an independent ground for reversal – one not raised or passed upon by the court below or one decided by the court below favorably to the appellant in this Court. Here, the ground offered in this Court is the same one raised in the Appellate Division, it was passed upon by that court, and it was decided adversely to the People below. Moreover, as demonstrated above, the reversal could not have occurred in the absence of an adverse ruling on this issue. Thus, the statutory bar precluding review of non-dispositive issues that were not the basis for reversal below should not bar review here. Nor would it be logical to apply the statute the way defendant demands. The fact that the Appellate Division, in arriving at its basis for reversal, necessarily had to decide a subsidiary issue before coming to its ultimate conclusion should not create a bar to review the dispositive subsidiary question. Thus, for example, the fact that in resolving a Brady claim, the court must first decide whether the evidence was favorable to the defense before it decides whether it was material makes the first 33 determination no less a part of the basis for reversal than the ultimate disputed issue. They are part and parcel of the same claim, not independent grounds for reversal. Further, the question of what evidence may be considered in resolving a claim should always be reviewable as part of the claim itself. If, for example, the Appellate Division were to hold that it could not consider a particular witness’s testimony in resolving a suppression issue or a challenge to the legal sufficiency of the proof at trial because the clerk neglected to swear the witness or for some more technical defect, that subsidiary determination would undoubtedly be subject to review as part of the ultimate disposition of the claim. Similarly, a determination that an appellate court should, or should not, consider articles or treatises on appeal that were not presented to the court below should also be reviewable as part of the claim itself. See, e.g., Young v. Conway, 698 F.3d 69, 79 (2d Cir. 2012). There is no reason for a different result here. Moreover, upon review of the claim, this Court should find that resettlement is an appropriate remedy. As an initial matter, defendant asserts that this Court must review the Appellate Division’s determination as to resettlement under an “abuse of discretion” standard (Defendant’s Brief at 50-51). But here the Appellate Division exercised no discretion at all. To the contrary, it decided that resettlement cannot be used to create a record of compliance with O’Rama, relying 34 exclusively on its prior decision to that effect in People v. Powell, 101 A.D.3d 756 (2d Dept. 2012). Because the court made a legal determination that the procedure was not available and did not exercise its discretion, the abuse of discretion standard is not appropriate. Moreover, as explained in the People’s opening brief, Powell is wrongly decided, and lacks any significant support from this or other courts. Indeed, as the People previously noted, that court relied for its authority on a very old Third Department case, Van Valkenburgh v. Bourne, 26 A.D.2d 727 (3rd Dept. 1966). More recent decisions of that and the other departments of the Appellate Division, however, provide for post-conviction fact-finding in connection with an O’Rama claim. See, e.g., People v. Kahley, 105 A.D.3d 1322 (4th Dept. 2013); People v. Carpenter, 52 A.D.3d 1050 (3rd Dept. 2008); Respondent’s Brief in Carpenter: AD- 126, AD-128, AD-129; People v. Martinez, 186 A.D.2d 14, 15 (1st Dept. 1992). Defendant nevertheless claims that the People, in criticizing the Second Department’s reliance on Van Valkenburgh in Powell, “ignore the fact that Powell quoted the leading precedent of Minaya [54 N.Y.2d 360 (1981)] and Bohlen [121 N.Y. 546 (1890)]” (Defendant’s Brief, p. 55 n. 4). The Second Department in Powell, however, cited Van Valkenburgh right after concluding, “Here, however, the People's resettlement motion did not seek to correct a mistake or error that was clerical in 35 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,” and that this “is not a proper basis for a resettlement motion.” Powell, 101 A.D.3d at 759. The Second Department only cited Minaya and Bohlen for the general proposition that courts have inherent power to correct their own records. Hence, the People did not “ignore” anything, but simply highlighted the fact that the Second Department’s ultimate decision was driven by its erroneous reliance on Van Valkenburgh, rather than Minaya and Bohlen. Moreover, if anything, Bohlen supports the People’s position here. Contrary to defendant’s contention, Bohlen did not confine resettlement to clerical errors. Indeed, this Court reaffirmed the trial court’s inherent powers either to correct errors “which may be termed clerical in their nature, or where it is made in order to conform the record to the truth.” Bohlen, 121 N.Y. at 550-51 (italics added). Thus, the correction need not be clerical, so long as it ensures that the record truly and accurately reflects what occurred. In addition, Bohlen makes clear that the correction may be for an omission, something that should have been placed on the record but was not. That omission may be corrected, this Court held, when it is “obviously due, as in this case, to the trial judge's oversight.” Id. at 551; see also Minaya, 54 N.Y.2d at 365 (permitting correction of record due to oversight and quoting Bohlen). The 36 People here sought no more out of resettlement – to correct an omission due to an oversight, in order to conform the record to the truth. Resettlement, thus, should have been allowed. Nor did the People seek to secure, or the trial court order, resettlement of an entire proceeding, as the Appellate Division found objectionable in Powell. Indeed, the trial court merely corrected the record to reflect what it had left out, that counsel had been shown the notes. No other statement, event, proceeding, or aspect of any conference was resettled. This type of targeted correction to right an omission to ensure the record “conforms to the truth” was not outside the inherent powers of the trial court, as contemplated in Bohlen. Defendant complains, however, that the record can never be resettled for an O’Rama error, because it is the obligation of the trial court to make a proper record regarding a jury note (Defendant’s Brief, pp. 53-54). But resettlement of the record and the obligation to make a record in the first place are not, as defendant suggests, inconsistent. Indeed, the purpose underlying the obligation to make a record and the purpose of the resettlement proceeding are wholly in accord. The purpose of the obligation to make a record under People v. Tabb, 13 N.Y.3d 852 (2009), is to create a basis upon which an appellate court can review what occurred and determine whether the defendant was given proper notice of the jury note and an opportunity for 37 input. See Walston, 23 N.Y.3d at 989-90; Silva, 24 N.Y.3d at 299-300. As this Court has made clear, in the absence of such a record, the Court cannot determine, or “assume,” that the core responsibilities of O’Rama have been carried out by the trial court. See Silva, 24 N.Y.3d at 300. The purpose of resettlement is to ensure an accurate record for appeal, so that an appellate court can determine whether the trial court took the appropriate actions. Once the record is resettled, an appellate court need not “assume” that the trial court’s obligations were fulfilled because the court has a record to refer to in order to make that determination. Indeed, the People here did not ask the Appellate Division and do not ask this Court to “assume” anything. To the contrary, the People provided a record, certified by the trial judge, of what occurred, one that is more than sufficient to resolve the issue of whether the court gave notice of the jury notes to defendant. Thus, resettlement should be permitted in order to achieve the very same ends identified in Tabb and its progeny. See also Bohlen, 121 N.Y. at 550-51 (resettlement appropriate to correct omission due to an oversight). Defendant cites People v. Richardson, 100 N.Y.2d 847 (2003), and People v. Adkinson, 88 N.Y.2d 561 (1996), in support of his contention that resettlement cannot be used to correct an error where a court has an affirmative obligation to make a record. The latter cases are inapposite, however, because in 38 Richardson and Adkinson, the defendants’ sentences, by operation of a statute, were automatically deemed to run concurrently with other sentences based upon the trial judge’s failure to specify that the sentences were to run consecutively, and there was no indication in the record of either case that the court intended to impose consecutive sentences, or made a mistake. Here, by contrast, there is no similar statutory provision which affirmatively resolves the ultimate issue -- whether the jury notes were disclosed prior to the court’s full on-the-record disclosure – by virtue of the record’s silence. Unlike the statute in Richardson and Adkinson, which indicated that the sentences were deemed to run concurrently, CPL 310.30 contains no language equating a silent record with nondisclosure of a note, such that the record’s silence is dispositive of the matter and uncorrectable. It follows that there can be no bar to using resettlement to affirmatively decide, in cases such as this one, whether the note was ever disclosed. Indeed, Minaya expressly allows courts to correct their records in the absence of an express statutory provision to the contrary (see Minaya, 54 N.Y.2d at 365 [allowing correction of the record where “the court's power to correct errors, including errors in the sentence, is well established by the case law and is not expressly prohibited by statute.”]), and also prohibits courts from adopting a correctable error advanced by the defendant where no authority from this Court or the 39 legislature provides a basis to conclude that the error or omission is beyond correction. Id. at 365-66 (“To the extent the defendant may actually have entertained the hope that such an obvious error would be uncorrectable once he reached State prison, it was not founded on any authoritative pronouncement to that effect from this court or the Legislature.”). Neither CPL 310.30, nor any case from this Court, compels the conclusion that any omission here was set in stone, and outside the realm of further, post-trial correction. Further, in People ex rel. Hirschberg v. Orange County Ct., 271 N.Y. 151 (1936), this Court allowed resettlement where the court had a clear duty to place the correct facts on the record. In that case, the defendant insisted “that his plea in 1921 was to a misdemeanor—unlawful entry—not to a felony—burglary, third degree,” and this Court found that the “County Court had jurisdiction to entertain the motion to correct its records” to this effect and that, “we can see no reason why the correction should not be made.” People ex rel. Hirschberg v. Orange Cnty. Court, 271 N.Y. at 157. Similarly, in Minaya, this Court allowed the trial court to correct its sentence – something the trial court undoubtedly had a duty to place correctly on the record. This Court held that the “inherent power of a court to correct its own errors extends to a statement or even formal pronouncement made by a court . . . ‘which is, plainly, the result of some inadvertence on his [the Judge's] part, and which 40 our reason tells us is a mere mistake.’” Minaya, 54 N.Y.2d at 365 (quoting Bohlen, 121 N.Y. at 550). The court here had no more of an affirmative obligation to make a record that the courts in Hirschberg and Minaya had to make a proper record of the crime to which defendant pleaded guilty and the sentence actually imposed. Defendant nevertheless suggests that the resettlement procedure is unreliable and therefore should not be permitted (Defendant’s Brief, p. 55-56). But there is no reason to fear resettlement: where neither the parties nor the court can recollect what occurred, there is no reason to believe that the court will construct a record out of whole cloth. To the contrary, where recollections do not permit resettlement, there is no doubt a judge will decline to order one. But where recollections do permit, the judge who presided over the trial should be allowed to certify what occurred and an appellate court should be allowed to consider it. Indeed, unless this Court assumes that the judge who presided over the trial cannot be trusted to make such a determination or create such a record, then the proceeding should stand as a valid one. Nor do Silva and Walston prohibit resettlement, as defendant argues (Defendant’s Brief at 56-57, 61-62). Indeed, neither one of these cases even mentions this remedy. Therefore, the holdings of these cases cannot possibly preclude the use of resettlement to resolve an O’Rama issue. Moreover, Silva and Walston speak to an 41 issue entirely different from the one in this case. In both cases, this Court explained that courts cannot make assumptions about compliance with O’Rama from a silent record. Here, by contrast, the People do not ask this Court to do anything of the sort because the record is not silent – the resettled record loudly and clearly speaks to the issue and establishes that the court revealed the notes to the parties prior to the jury’s return to the courtroom. Still further, despite defendant’s protestations, the People were not fatally late in bringing their motion. Defendant argues that the People’s motion was untimely because the People did not comply with the fifteen-day time limit specified in Section 5525(c)(1) of the Civil Practice Law and Rules. But the pertinent statute, CPLR 5525(1) places the obligation on the appellant, here the defendant, to propose amendments to the transcript and to thus initiate the settlement process. Here, defendant did not comply with his obligations, and the People’s obligations were not triggered in response. Nor does the statute impose any time limitation on a respondent’s motion to amend the transcript or resettle the record. As such, the People’s motion was not untimely. Still further, the procedures set forth in C.P.L.R. § 5525 do not limit the trial court’s ultimate authority to certify the accuracy of the proceedings before it. See People v. Santorelli, 95 N.Y.2d 412, 424 (2000). 42 Nor is there reason to penalize the People for the delay in moving to resettle in the absence of the initiation of settlement by defendant. Indeed, most of the delay occurred due to the very nature of the O’Rama issue, which can be raised for the first time on appeal, as it was here, despite the utter lack of any objection to the procedure used by the trial court. Once the People were on notice that the issue was in the case, and began to address the issues in defendant’s brief, the motion was made with relative promptness. 5 Taking hyperbole to an extreme, defendant also argues that allowing for resettlement in the context of alleged O’Rama error would lead to “appellate chaos” and a “proliferation of post-judgement litigation” which would “undermine the appellate process and thwart due process” (Defendant’s Brief, p. 55). Defendant’s apprehensive and colorfully-phrased argument, however, is little more than rhetoric. There is no principled reason to conclude that resettlement would lead to “appellate chaos,” or anything like the apocalyptic scenario defendant describes. The procedure, like the remedy of reconstruction, has been used in other contexts, such as to establish Defendant chastises the People for moving to resettle “109 days” after receiving the record in5 this case (Defendant’s Brief at 52). But what defendant omits is the fact that he consented to three adjournments in order to allow the People time to investigate the O’Rama issue in this case. Apparently, appellate counsel understood that the circumstances of this case (which included the O’Rama issue) justified the People’s requests for more time. Hence, defendant should not be heard to complain that the very adjournments he agreed to were unreasonable, or that these enlargements of time undermine the People’s request for a reconstruction hearing. 43 a defendant’s presence during a proceeding to defeat a claim that his right to be present was violated, and, yet, no “chaos” has ensued. Nor is the procedure of resettlement so onerous that it will grind the business of the judicial system to a halt, as defendant suggests. To the contrary, the resettlement proceeding in this case required no more than motions with affidavits and a calendar call in front of the court that tried the case. This is hardly the type of ponderous procedure that must be avoided at all costs, and particularly not at the expense of the truth. Further, if the goal is to prevent the proliferation of litigation, then resettlement should be encouraged in this context. Indeed, without it, a whole new trial may be required based on a claim never raised below and an inaccurate record. Far more judicial resources will be expended at a retrial than at a short hearing to determine what occurred – a hearing that not only ensures that the appellate court has a full and accurate record to judge what occurred at the first trial but will often, as here, avoid the need for a retrial at all. Finally, defendant suggests that the best way to avoid O’Rama error, and any ensuing “gamesmanship” that results therefrom, is not by allowing resettlement to shed light on the issue, but by imposing an obligation on the People to remind the trial courts to comply with their O’Rama obligations (Defendant’s Brief at 62). But 44 this suggestion will actually promote gamesmanship by relieving defense counsel of any obligation whatsoever to object before the nisi prius court. And, while the People certainly strive to ensure that every trial is as error-free as possible, the penalty for failing to do so should not be a formalistic reversal even where no substantive right of notice or input is violated. 6 In sum, it would make no sense to conclude that a court’s “affirmative obligation” to make accurate records prevents a court from correcting those very records for purposes of accuracy. Yet this is exactly the result that defendant presses upon this Court. Essentially, defendant proposes that a court has one chance and one chance only to meet its “affirmative obligation” of making a proper record or performing a duty, and that any mistakes and/or omissions the court makes are set in stone, rendering them uncorrectable even if they do not reflect the truth of what occurred at trial. This Court should reject that contention. Finally, as explained above and in the People’s main brief, exacting the penalty of reversal based simply on the failure to make a record even where the court Defendant’s argument on this point is ironic because this very case, which rests upon a record6 that the Appellate Division did not allow the People to conform to the truth through resettlement, exemplifies the very “proliferation of post-judgment litigation” that defendant rails against. Based upon the fact that the Appellate Division refused to consider the resettled record, this case has wound its way to this Court after Appellate Division review, leave letters, a leave conference, and now extensive briefing. The prolific litigation that has defined this case is due, in large part, to the incomplete, unsettled record that defendant has used to reverse his conviction. 45 is otherwise assured that the defendant had notice of the note and an opportunity for input would impose the harshest of consequences to remedy the most technical of errors. So long as the right to notice and the opportunity for input are protected – the very purpose of the obligation to create a record under Tabb – then this Court should not go to the extreme of reversing a conviction wherein no substantive right was violated. Elevating form over substance to such a degree is simply unwarranted and provides a windfall to defendants based on a misstep by the court that has in no way affected the fairness of the trial or the ability of the defendant and counsel to participate in it. B. This Court Has Jurisdiction to Review the Appellate Division’s Decision to Deny Reconstruction under CPL 470.35(2)(C), Which Specifically Authorizes this Court to Review the Corrective Action Taken by an Intermediate Appellate Court upon Reversal. Regardless of the reviewability of the resettlement of the record, the Appellate Division’s refusal to order a reconstruction hearing is, by statute, independently reviewable. Moreover, there was ample ground for ordering such a hearing in this case, and the Appellate Division should have done so. Under CPL 470.35(2)(c), this Court may review the “corrective action” taken by the Appellate Division upon a reversal. See CPL 470.35(2)(c) (this Court may review “[a]ny question concerning the legality of the corrective action.”). 46 “Corrective action” is defined as “affirmative action taken or directed by an appellate court upon reversing or modifying a judgment, sentence or order of another court, which disposes of or continues the case in a manner consonant with the determinations and principles underlying the reversal or modification.” CPL 470.10(3). Here, the Appellate Division refused to order a reconstruction hearing despite the People’s request, and instead simply ordered a new trial. The court’s direction requiring a new trial was unquestionably “[c]orrective action,” and the propriety of that corrective action rather than the action requested by the People is subject to review. See Arthur Karger, Powers of the New York Court of Appeals, 21.10, p. 771 (2005) (court order directing dismissal of indictment rather than order of a new trial reviewable under 470.35(2)(c)). Moreover, here, there was ample ground for ordering just such a hearing. Under this Court’s case law, reconstruction hearings are appropriate where it is clear that a proceeding took place that was not transcribed, see, e.g., People v Michalek, 82 N.Y.2d 906 (1994) (reconstruction hearing ordered where Sandoval hearing held but not transcribed); the trial court refused to record the proceedings, see, e.g., People v Davidson, 89 N.Y.2d 881 (1996) (trial court refused to record substantial portions of voir dire proceeding); the minutes have been lost; or there is significant ambiguity in the record. People v. Velasquez, 1 N.Y.3d 44, 49 (2003). Here, the record reflects 47 that after receiving the jury note but before calling the jury out to address it, a sidebar conference was held. Because the sole purpose of calling the jury out was to discuss the note, it is hard to imagine that the sidebar conference did not address the note, at least in some fashion. This conference is precisely the type of untranscribed proceeding relevant to, and, as we now know, dispositive of, the issue raised by defendant that warrants reconstruction. See People v. Cruz, 14 N.Y.3d 814 (2010) (considering reconstructed transcript where jury note allegedly mishandled). And,7 of course, this is not a case where so much time passed that reconstruction would not have been possible, as the resettlement hearing shows. Defendant states that Cruz was not an O’Rama case and, thus, its consideration of a7 reconstructed record is not dispositive here (Defendant’s Brief at 60). However, as Chief Judge Lippman noted in his concurring opinion, the outcome in Cruz could have turned entirely on O’Rama grounds (Cruz, 14 N.Y.3d at 819 [Lippman, C.J., concurring), and the majority opinion did not reject this assessment. Moreover, the defendant in Cruz styled the issue as a violation of O’Rama, and the Fourth Department addressed it as such. See People v. Cruz, 42 A.D.3d 901 (4th Dept. 2007). And, recently, this Court cited to Cruz in Silva and stated that the reversal in Cruz was based upon O’Rama grounds, specifically, the “judge's apparent unawareness of a jury note or unresponsiveness . . . .” Silva, 24 N.Y.3d at 300 (“The ‘presumption of regularity’ . . . . cannot salvage an O'Rama error of this nature . . . . and this is not the first time—contrary to our dissenting colleague's belief—that a judge's apparent unawareness of a jury note or unresponsiveness has led to a new trial.”) (citing Cruz, 14 N.Y.3d at 816). In light of the foregoing, Cruz cannot be considered a case which turned simply upon “the possibility that the jury was given an exhibit that was not in evidence” (Defendant’s Brief at 60). In any event, even if defendant’s interpretation of Cruz were correct, the fact remains that this Court still considered a reconstructed record in Cruz, thus providing further proof that a post-judgment fact finding can be used to consider fundamental issues, such as those implicated by O’Rama. See Cruz, 14 N.Y.3d at 816 (citing People v. Bouton, 50 N.Y.2d 130, 137 [1980] [“CPL 310.20 (subd. 1) grants the trial court discretion to allow the jury to view any exhibit received in evidence at trial, but no provision authorizes submission of unadmitted exhibits. Departure from that rule affects important rights.”]). 48 Moreover, reversal without a reconstruction hearing was particularly inappropriate here, as no substantive error was suffered by defendant. As the resettled record demonstrates, defendant received full notice of the note and had ample opportunity for input. Because, as the Appellate Division was well aware, the rights that O’Rama seeks to ensure were protected, summary reversal was not appropriate. Defendant argues, nevertheless, that reconstruction was not available here, pointing out that this Court has ordered a new trial in every case it has reversed due to an O’Rama error (Defendant’s Brief, p. 51 n. 3). To the People’s knowledge, however, this is the first case before this Court in which a request for a reconstruction hearing was made. To be sure, in none of the cases cited by defendant did this Court directly address the issue now before it -- whether a properly requested reconstruction hearing is an appropriate remedy for an O’Rama error. Accordingly, this Court’s past cases do not stand for the proposition that reconstruction is inappropriate for an O’Rama error. Nor is ordering a reconstruction hearing in this case susceptible to the criticism that it would lead to an uncontrolled proliferation of remands for hearings on appeal – defendant’s “appellate chaos” claim, discussed above in the context of resettlement. Indeed, reconstruction is a time-tested remedy that has been used 49 judiciously to address particular issues without leading to chaos. Reconstruction has been used to address such issues as defendant’s presence at various types of proceedings, see, e.g., People v. Odiat, 82 N.Y.2d 872, 875 (1993); Davidson, 89 N.Y.2d at 881; People v. Monclavo, 87 N.Y.2d 1029, 1031 (1996), and has been used to address jury note issues as well, see Cruz, 14 N.Y.3d at 814, without courting judicial disaster. See also People v. Kahley, 105 A.D.3d 1322 (4 Dept. 2013). Thereth is no reason to believe that a ruling in favor of reconstruction here, where there is a specific record of a bench conference immediately before calling the jury out that could only have pertained to the note, and where the resettled record strongly supports the view that the trial court complied with O’Rama, would fulfill defendant’s doomsday predictions. Similarly unavailing is defendant’s claim that reconstruction is unavailable because the trial court has an affirmative obligation to make a record. Despite this obligation, this Court considered a reconstructed record in Cruz and, significantly, Cruz was decided after Tabb, thus proving that the latter cannot stand for the proposition that automatic reversal is the only remedy available to address an O’Rama error. And Cruz is not the only case where reconstruction was deemed an appropriate remedy despite an affirmative obligation upon the trial court to make a record at trial or perform a duty. For example, when deciding whether a party has 50 exercised peremptory challenges in a discriminatory manner, a trial court is charged with making an appropriate record. See, e.g., People v. Payne, 88 N.Y.2d 172, 183-84 (1996) (“When a trial court finds that the opponent of the peremptory strikes . . . . has carried its ultimate and unalterable burden of persuasion, that ruling and its basis must be reflected and gauged on the record made. The legal burdens of production and persuasion must be correctly allocated and maintained, and a meaningful record must reflect that these prerequisites have been satisfied . . . . [T]he trial courts bear the judicial responsibility of ensuring that an adequate record is made and of reflecting the basis for their rulings.”). Nevertheless, courts have still held that the record may be reconstructed when it fails to reflect that this burden was satisfied. See, e.g., Payne, 88 N.Y.2d at 186-88 (remitting where trial courts did not make a proper record on Batson issue); People v. Sprague, 273 A.D.2d 861, 862 (4 Dept. 2000)th (“[T]he court summarily sustained the People's Batson challenge without discussing pretext or setting forth the basis for its ruling so as to permit meaningful appellate review . . . . We therefore hold the case, reserve decision and remit the matter to Supreme Court to set forth the basis for its ruling.”). Finally, defendant simply cannot have it both ways. He cannot on the one hand argue that reconstruction is inappropriate because the trial court had an obligation to make a record, but then deny the trial court the means to make that 51 record in resettlement. Similarly, he cannot argue that resettlement is inappropriate because it pertains to an unrecorded bench conference, and then argue that reconstruction – available to create a record of an untranscribed proceeding – is an inappropriate remedy to recreate the conference. And, perhaps most importantly, he cannot argue that the record shows that counsel was never shown the jury notes, and prevent any means or method of showing that the record is in error on the very point he raises. Indeed, what defendant attempts here is to block any and all legitimate attempts to “conform the record to the truth,” and to impermissibly rely on a silent record to overturn his conviction. This Court should ensure just the opposite, through resettlement, reconstruction, or whatever means the Court deems appropriate. 52 CONCLUSION For the reasons set forth above, the order of the Appellate Division should be reversed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ________________________ Christopher J. Blira-Koessler Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO CHRISTOPHER J. BLIRA-KOESSLER Assistant District Attorneys of Counsel July 22, 2015 53 54