The People, Respondent,v.Edwin Mendez, Appellant.BriefN.Y.October 15, 2015Fitzpatrick FITZPATRICK, CELLA, HARPER & SCINTO www.fitzpatrickcella.com C. AUSTIN GINNINGS CAginnings@fchs.com 212-218-2366 NEW YORK 1290 Avenue of the Americas New York, NY 10104-3800 T 212-218-2100 F 212-218-2200 April 13, 2015 VIA FEDEX Hon. Andrew W. Klein Clerk of the Court Court of Appeals of the State of New York 20 Eagle Street Albany, New York 12207 Re: People v. Mendez (Edwin), APL-2014-00320 (Ind. No. 351/11 (New York County)) Dear Mr. Klein: Counsel for Defendant-Appellant Edwin Mendez respectfully requests that this Court accept his letter in reply to Respondent's submission, dated March 30, 2015 ("Resp. Ltr."), in the above-captioned case, under Court of Appeals Rule 500.11(e). Counsel for Mr. Mendez has conferred with counsel for Respondent regarding this submission, and Respondent has indicated it takes no position with respect to this submission. Respondent's arguments before this Court hinge entirely upon the erroneous conclusion that Court Exhibits 10-12 were all ministerial requests from the jury during deliberations.' Despite Respondent's attempts to cast these jury notes as requests to which defense counsel could not have provided "meaningful contribution" in formulating a response, see Resp. Ltr. at 19-21, the opposite is true. Respondent would have this Court accept that the only possible responses to the jury notes were the "ministerial" actions of playing the tapes or informing the jurors that the requested items were not in evidence, see Resp. Ltr. at 20-21, and on a barren record, further accept that these actions were actually taken, see Resp. Ltr. at 22-23. Respondent is wrong on both counts. As to the latter point, this Court made clear in People v. Silva, 24 N.Y.3d 294, 300 (2014), that it is "an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and 0 'Rama." As to the former, Respondent undermines its own argument by positing at least two ways that the court could have responded to the notes requesting transcripts of the Rikers Island calls, and indeed counsel could have provided further input. Respondent also discusses the presumption of regularity, see Resp. Ltr. at 22-23, but such arguments also hinge upon the idea that Court Exhibits 10-12 were ministerial requests. NEW YORK WASHINGTON CALIFORNIA Hon. Andrew W. Klein April 13, 2015 Page 2 To be sure, informing the jurors that the requested items were not in evidence was one potential response. However, with respect to Court Exhibit 10 (which requested transcripts of the Rikers Island calls), defense counsel alternately could have asked that the jurors be brought into the courtroom to hear the Rikers Island tapes or suggested that the trial court remind the jury that, if it wished to review the transcripts, it would have to return to the courtroom in order to do so.2 Similarly, with respect to Court Exhibit 11 (which asked if additional 911 calls related to the altercation existed), defense counsel could have suggested that the trial court admonish the jury that it could not speculate about the existence of additional evidence; asked that the court instruct the jury that, while it could not speculate about evidence not introduced, it could consider the lack of evidence in deciding whether the prosecution had met its burden; or even could have reminded the trial court that it had withheld ruling on the defense motion to admit additional 911 calls into evidence. With respect to Court Exhibit 12 (which directed the court's attention to particular information from the Rikers Island calls that the jury wanted to review), counsel could have made the suggestions detailed above for Court Exhibit 10 and, in addition, could have directed the court to portions of the Rikers Island calls that he believed were responsive and favorable, such as where Mr. Mendez reported "they jumped me and I defended myself." See Call No. 20110307222320, made on March 7, 2011, at 10:23pm. Such potential contributions make clear that these requests were each a far cry from ministerial inquiries. Notably, Respondent makes no additional effort to distinguish this Court's decision in Silva, instead relying solely on the notion that Court Exhibits 10-12 were ministerial requests. See Resp. Ltr. at 23-24. Respondent ignores the import of Silva, in which this Court made clear that the types of inquiries that the Appellate Division (especially the First Department) has previously considered to be ministerial are, in fact, substantive. See also People v. Carr, No. 26, 2015 WL 1470482 (N.Y. Apr. 2, 2015) (reversing convictions where court's in camera, off-the- record inquiries about the reasons for a witness's failure to appear were non-ministerial and, thus, violated defendants' right to counsel); People v. Hameed, 88 N.Y.2d 232, 241 (1996) (note is non-substantive when it is "wholly unrelated to the substantive legal or factual issues of the trial"). In sum, because the jury notes related directly to the trial evidence or lack thereof, and because counsel could have provided input regarding the court's responses, the notes were indisputably substantive. For these reasons (as well as those stated in Appellant's Letter Brief and Appellate Division Briefs), the trial court's failure to respond on the record to Court Exhibits 10-12 plainly requires reversal. 2 Moreover, as Respondent concedes, the trial court discussed Court Exhibit 4 (which requested a nonexistent "call with Anthony[] that was on the transcript") with counsel before reconvening the jury and telling them that this call did not exist. See Resp. Ltr. at 16-18. Yet, Respondent cannot explain why defense counsel could have (and did) provide meaningful contribution with respect to Court Exhibit 4, but not with respect to Court Exhibits 10-12. 2 Hon. Andrew W. Klein April 13, 2015 Page 3 By: Respectfully submitted, Richard M. Greenburg, Esq. Attorney for Defendant-Appellant Margaret E. Knight, Esq. Supervising Attorney Office of the Appellate Defender 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 •• • C. 'ustm Gmmngs; tsq. Of Counsel Fitzpatrick, Cella, Harper & Scinto 1290 Avenue of the Americas New York, NY 10104 (212) 218-2100 cc: Jared Wolkowitz, Esq. Office of the District Attorney New York County 3