The People, Appellant,v.Dennis O'Kane, Respondent.

Brief

N.Y.January 10, 2018

To Be Argued By: Christopher D. Horn Time Requested: Ten (10) Minutes ________________________________________________________________________ Court of Appeals STATE OF NEW YORK _______________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DENNIS O’KANE, Defendant-Respondent, _______________ APL-2016-00163 APPELLANT’S BRIEF P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR APPELLANT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 CHRISTOPHER D. HORN DATE COMPLETED: Of Counsel November 28, 2016 VINCENT STARK Of Counsel 1 TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES .............................................................. 1 JURISDICTIONAL STATEMENT .......................................................................... 6 QUESTIONS PRESENTED ...................................................................................... 6 PRELIMINARY STATEMENT ............................................................................... 7 STATEMENT OF FACTS ...................................................................................... 10 ARGUMENT ............................................................................................................. 9 I. THE COURT’S SUA SPONTE DECISION BASED ON AN UNPRESERVED AND WAIVED ISSUE WAS ERROR ................. 21 A. County Court Had no Jurisdiction to Reach a Waived Issue........................................................................................... 21 B. The Verdict Sheet Issue was Also Unpreserved and County Court did Not Reach it in the Interest of Justice. ......... 28 II. COUNTY COURT’S SUA SPONTE DECISION WITHOUT BRIEFING DEPRIVED THE PEOPLE OF AN OPPORTUNITY TO BE HEARD AND VIOLATED FIRST PRINCIPLES OF APPELLATE PRACTICE AND ADVERSARIAL JUSTICE ................................................................ 31 A. The Anglo-American Adversarial System. ........................ 31 B. Sua Sponte Decision Making is Unfair to the Parties. ......... 35 C. Other Concerns with Sua Sponte Decision Making. ........... 41 D. Law and Equity: A Way to Strike an Appropriate Balance. ................................................................................ 42 III. THE VERDICT SHEET AT ISSUE WAS NOT IN ERROR; IT FOLLOWS THAT THERE WAS NO INEFFECTIVE ASSISTANCE OF COUNSEL FOR CONSENTING TO IT ........... 45 A. The Verdict Sheet was Not in Error. ................................... 45 B. Counsel was not Ineffective for Consenting to the Verdict Sheet. ...................................................................... 52 CONCLUSION .............................................................................................. 58 2 TABLE OF CASES AND AUTHORITIES Page(s) Federal Cases Burdett v Miller, 957 F2d 1375 [7th Cir 1992] 33, 42 Carducci v Regan, 714 F2d 171 [DC Cir 1983] 32 Cent Bank of Denver, NA v First Interstate Bank of Denver, NA, 511 US 164 [1994] 33 Day v McDonough, 547 US 198 [2006] 35, 43 Greenlaw v United States, 554 US 237 [2008] 31, 34 Trest v Cain, 522 US 87 [1997] 43 Lassiter v Dep’t of Soc. Servs., 452 US 18 [1981] 34, 37, 38 Mathews v Eldridge, 424 US 319 [1976] 44 McNeil v Wisconsin, 501 US 171 [1991] 31 Reed v Ross, 486 US 1 [1984] 41 Schlesinger v Reservists Comm. to Stop the War, 418 US 208 [1974] 42 Strickland v Washington, 466 US 668 [1984] 53 Tom v Heckler, 779 F2d 1250 [7th Cir 1985] 33 United States v Burke, 504 US 229 [1992] 32 State Cases Dept. of Social Services on Behalf of Beatrice V.P. v Trustum C.D., 97 AD2d 831 [2d Dept 1983] 22 Horton v Smith, 51 NY2d 798 [1980] 45 In re Estate of Lewis, 114 AD3d 203 [4th Dept 2014] 30 Matter of Fry v Tarrytown, 89 NY2d 714 [1997] 31 Misicki v Caradonna, 12 NY3d 511 [2009] 33, 34, 35, 42 Oakley v Aspinwall, 3 NY 547 [1850] 37 People v Agramonte, 87 NY2d 765 [1996] 23, 37 People v Ahmed, 66 NY2d 307 [1985] 22, 23 People v Aiken, 45 NY2d 394 [1978] 52 People v Alt, 50 AD3d 1164 [3d Dept 2008] 22 People v Angelo, 88 NY2d 217 [1996] 45, 46 People v Baker, 14 NY3d 266 [2010] 49 People v Baldi, 54 NY2d 137 [1981] 53, 54 People v Barboni, 21 NY3d 393 [2013] 53, 55 People v Benevento, 91 NY2d 708 [1998] 53, 54 People v Bjork, 105 AD3d 1258 [3d Dept 2013] 25, 47 3 People v Brown, 90 NY2d 872 [1997] 24, 25, 26, 45, 47 People v Caban, 5 NY3d 143 [2005] 52 People v Cooke, 24 NY3d 1196 [2015] 23 People v Damiano, 87 NY2d 477 [1996] 24, 25, 26, 44, 45, 46, 49 People v Flores, 84 NY2d 184 [1994] 52, 53 People v Gerstner, 270 AD2d 837 [4th Dept 2000] 47 People v Griggs, 27 NY3d 602 [2016] 24 People v Hartson, 160 AD2d 1046 [3d Dept 1990] 22 People v Hicks, 12 AD3d 1044 [4th Dept 2004] 25 People v Hunter, 17 NY3d 725 [2011] 21, 27 People v James, 114 AD3d 1202 [4th Dept 2014] 56 People v James, 256 AD2d 1149 [4th Dept 1998] 24 People v Johnson, 96 AD3d 1586 [4th Dept 2012] 47 People v Kassebaum, 95 NY2d 611 [2001] 25 People v Kelly, 164 AD2d 767 [1st Dept 1990] 46 People v Knight, 280 AD2d 937 [4th Dept 2001] 24, 47 People v Lawrence, 64 NY2d 200 [1984] 45, 46 People v Lopez, 285 AD2d 356 [1st Dept 2001] 28 People v Martin, 50 NY2d 1029 [1980] 21, 27 People v Mason, 176 AD2d 358 [2d Dept 1991] 56 People v McCloud, 121 AD3d 1286 [3d Dept 2014] 25, 26, 47 People v Mehmedi, 69 NY2d 759 [1987] 25 People v Mezon, 80 NY2d 155 [1992] 45 People v Miller, 18 NY3d 704 [2012] 44, 45 People v Moore, 233 AD2d 670 [3d Dep’t 1996] 23 People v Moore, 71 NY2d 684 [1988] 48, 49, 50 People v Owens, 69 NY2d 585 [1987] 48 People v Patterson, 39 NY2d 288 [1976] 23, 24, 27 People v Pointer, 262 AD2d 505 [2d Dept 1999] 28 People v Porter, 82 AD3d 1412 [3d Dept 2011] 53 People v Robertson, 185 AD2d 210 [1st Dept 1992] 46 People v Rodriguez, 50 NY2d 553 [1980] 22 People v Rosado, 96 AD3d 547 [1st Dept 2012] 22 People v Santos, 41 AD3d 324 [1st Dept 2007] 56 People v Satterfield, 66 NY2d 796 [1985] 53, 54 People v Scott, 34 AD2d 407 [4th Dept 1970] 37 People v Seaberg, 74 NY2d 1 [1989] 23 People v Sinha, 84 AD3d 35 [1st Dept 2011] 22 People v Smith, 179 AD2d 1022 [4th Dept 1992] 29 People v Smith, 22 NY3d 462 [2013] 51 4 People v Smocum, 99 NY2d 418 [2003] 21 People v Soler, 52 AD3d 938 [3d Dept 2008] 47 People v Sotomayer, 173 AD2d 500 [2d Dept 1991] 46 People v Spivey, 81 NY2d 356 [1993] 26, 44 People v Starling, 85 NY2d 509 [1995] 21, 27 People v Taylor, 76 NY2d 873 [1990] 48 People v Thomas, 120 AD2d 756 [2d Dept 1986] 22 People v Thomas, 287 AD2d 326 [1st Dept 2001) 47 People v Fecunda, 226 AD2d 474, 475 [2d Dept 1996] 47 People v Tortorici, 249 AD2d 588 [3d Dept 1998] 55 People v Trombley, 72 AD3d 1402 [3d Dept 2010] 29 People v Vargas, , 199 AD2d 291, 292 [2d Dept 1993] [2d Dept 1993] 47 People v Webb, 78 NY2d 335 [1991] 23, 37 Plachte v Bancroft, Inc., 3 AD2d 437 [1st Dept 1957] 43 State Statutes CPL 180.10 46 CPL 190.50, subd 5 46 CPL 240.30 46 CPL 470.15[3][c] & [6 22, 27 CPL § 310.30 26 CPL § 450.10 5 CPL § 450.60(3) 18 CPL § 470.05(2) 28 CPL § 470.05[2] 21, 27 CPL § 470.15(1) 28 CPL §310.20(2) 44 CPL §§ 450.90[2][b], 470.10 5 Other Authorities David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634 [2009] 31 Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by Reconsidering Miranda, 149 U. Pa. L. Rev. 251 [2000] 31 Robert J Martineau, Considering New Issues on Appeal: the General Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023 [1987] 32 George C. Christie, Objectivity in the Law, 78 Yale L.J. 1311, 1329 [1969] 38 Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 [1982] 38 5 Tom Baker, On the Genealogy of Moral Hazard, 75 Tex. L. Rev. 237 [1996] 42 Adam A Milani & Michael R Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245 [2002] 38, 44 Tory A Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 Suffolk J. Trial & App. Advoc. 179 [2012] 34 Roger J Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211, 219 [1957] [1957] 42 Eric D Miller, Should Courts Consider 18 USC § 3501 Sua Sponte, 65 U. Chi. L. Rev. 1029 [1998] 41 Barry A Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to be Heard, 39 San Diego L. Rev 1253 [2002] 42, 43 Lon L Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978]) 37, 38, 39 Ellen E Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301 [1989] 32 Stephen Landsman, Readings on Adversarial Justice: The American Approach to Adjudication [1988] 32, 37, 38, 39 David T Wasserman, A Sword for the Convicted 31 6 JURISDICTIONAL STATEMENT This Court has jurisdiction here, because the intermediate appellate court’s order was entered upon an appeal taken to such intermediate appellate court as of right pursuant to CPL § 450.10. To the extent that the intermediate appellate court lacked jurisdiction to consider the issue it made its determination on, this provides an independent basis for jurisdiction inasmuch as the court’s corrective order was therefore illegal (CPL §§ 450.90[2][b], 470.10). QUESTIONS PRESENTED I. Whether the intermediate appellate court (here, a county court) properly reached an issue that was unpreserved, waived, and consented-to in the trial court? No, an intermediate appellate court cannot reach a waived issue. II. Whether, the intermediate appellate court was required to give the parties notice and an opportunity to be heard prior to ruling on an issue raised sua sponte by the court? Yes, justice, fairness, and the entire premise of the adversarial system require giving the parties notice and a fair opportunity to be heard before ruling. III. Whether it is error for defense counsel to consent to verdict sheet annotations beyond that which is authorized by statute? No. IV. Whether defense counsel was ineffective for consenting to verdict sheet annotations beyond that which is authorized by statute? No, because there was no error, there was no deficient conduct. 7 PRELIMINARY STATEMENT In New York, county courts in the Third and Fourth Departments are given the weighty responsibility of acting as the intermediate appellate courts for cases originating in town, city, and village courts. This case presents the Court with opportunities to instruct those courts regarding their special responsibilities when they sit as appellate courts, to correct a fundamental miscarriage of justice, to clarify a narrow but important point of law, and to protect the adversarial process. Although the misdemeanors that are subject to appeal in county courts generally entail lesser punishments than felonies originating in superior courts, they often involve facts that are no less serious for the victims, and they demand the same standards of justice. The case at bar illustrates the point. The defendant in this case, originally the victim’s tenant, harassed and terrorized the victim over a period of years, and violated no fewer than three orders of protection to do so. He contacted her hundreds of times by phone, voicemail, social media, and email. He sent her bizarre packages containing personal effects he had stolen from her home, including childhood photos of the victim, clothing that had belonged to her deceased husband, two cassette tapes containing a recording of the Bible, and a toilet seat. On one occasion he drove by the victim’s house as she stood outside and yelled out, “I love you” to her. But his affection was mercurial at best; on other occasions he threatened to sue her and sent her various legal notices. 8 At trial, the defendant admitted most of his conduct toward the victim. The jury returned a verdict finding defendant guilty of four counts of Aggravated Harassment in the Second Degree, two counts of Stalking in the Fourth Degree, and six counts of Criminal Contempt in the Second Degree. He was acquitted of two additional counts of Criminal Contempt in the Second Degree. The defendant appealed, with Albany County Court (Lynch, J) sitting as the intermediate appellate court. In his brief, the defendant raised several grounds for reversal. The People responded to his arguments, and an oral argument was held. County court later issued a written decision that rejected each and every ground raised by the defendant. Nevertheless, county court reversed the conviction after searching the record and, sua sponte, addressing an issue not raised or briefed by either party. The court addressed the issue without calling for additional briefing or even asking for the views of the parties at oral argument. The People filed a motion to reargue in an attempt to give the court the benefit of its views. Among other things, the People argued that county court’s decision relied on an issue that was unpreserved and in fact waived by the defendant’s consent in the trial court. The People continued that, in any event, county court’s decision was wrong on the merits. County court denied the motion and did not consider the People’s views. County court’s misguided decision must be overturned for three independent reasons. First, county court violated the first principles of appellate judging and 9 due process when it decided the appeal sua sponte, without briefing, and on a ground that had been waived. Second, county court was simply wrong on the merits of its decision. Third, to the extent that the lower court’s decision invoked ineffective assistance of counsel, it did not employ the well-settled standards articulated by this Court when it made its decision and instead substituted ipse dixit for legal reasoning. Along the way, county court did not even invoke interest of justice jurisdiction to reach the unperserved, waived, and consented-to issue, thereby failing to pass a jurisdictional hurdle to its decision. For all these reasons, the lower court’s decision and order should be reversed, and this Court should take the opportunity to instruct county courts regarding their obligations when sitting as appellate courts. 10 STATEMENT OF FACTS An Unusual Tenant In December of 2010, the defendant, Dennis O’Kane, responded to an internet advertisement posted by the victim, who sought a tenant for one of the spare bedrooms in her house in the City of Albany (A108). After meeting, the defendant took up residence in the spare room and the two began a landlord-tenant relationship. Four months into the tenancy, the defendant, unprompted, began various home-improvement efforts throughout the property. Among other things, he painted sections of the front porch, installed a ceiling fan, destroyed a wall in an ill-fated attempt to install a shower, and erected a plaque in the front yard to honor the victim’s deceased former husband, Michael Wolf (A98, A109-10). The defendant displayed an obsession with the victim’s deceased husband. For example, in his rent checks he would include one extra dollar each month to fund the “Wolf Foundation” – a fictional organization he would often reference, saying that it served the purpose of feeding a million starving children (A113-14). The defendant told the victim that he was appointing her treasurer of this organization (A114). The defendant would scatter love notes throughout the home and told the victim that her deceased ex-husband was sending messages for him to pass on from beyond the grave (A111-112). On one occasion, the victim awoke from a nap to 11 find that the defendant had entered her study and left her food while she slept (A110-12). Unsurprisingly, these actions caused tension between the defendant and the victim’s fiancé, Corey Retzke (A112a). On Valentine’s Day, the victim found a roll of wallpaper wedged into the doorjamb of her bedroom (A123). Inside, there was an engagement picture of the victim and her deceased husband that she kept in storage in her attic (A123-24). Enclosed was a message on a cardboard cutout where the defendant wrote, “To Mouse, the most perfect wife in the world. Please forgive me. I made the biggest mistake in my life. Love you always, Your Wolf, xo xo xo” (A123). Defendant had begun to impersonate the victim’s deceased husband. The Stalking In May 2011, the victim evicted the defendant (A112). After he reluctantly vacated, she started receiving emails and phone calls from him; she told the defendant to stop contacting her (A113). In the following months, the defendant continued to call her hundreds of times, left several voicemails, contacted her through social media, and sent her thirteen emails (A112a-112b; A125-26; A141). In the voicemails, the defendant threatened to sue the victim, alleged that she was involved in a murder conspiracy, and referenced boxes he sent to her home via Federal Express (A117-19). One of the boxes contained personal documents belonging to the victim, including her mortgage statement, as well as information 12 about her former husband, their divorce papers, and her sister’s and sister-in-law’s addresses (A120, A129). The defendant threatened that he would be visiting the victim’s mother and sister at their home in New York City (A121). Each email began with the words, “Good morning, Miss Submissive,” and they frequently referenced Michael Wolf (A113, A115-16). In one email, the defendant wrote, “I’ll be liening (sic) your home monies [sic] you stole from the Wolf Foundation by fraud” (A113). In others, he referenced the victim’s physical similarities to a model depicted in Playboy magazine and asked her if her deceased husband had physically abused her (A122; A126-27). The victim discovered a Playboy centerfold taped to the inside closet door of the room defendant had been renting (A122). Orders of Protection On July 13, 2011, the victim obtained a no-contact Order of Protection from Albany City Court (Krester, J) against the defendant, effective until January 14, 2012 (A107). But the emails only became more detailed. In one message, the defendant referenced a fountain in front of the victim’s mother’s apartment complex in New York City and invited her to meet him there (A130-31). In another, he wrote to the victim that, “I give you one promise today that I will keep. I’ll put you over my knee and spank you 40 times, for every night I had to sleep in misery, LOL. And every time I do, I’ll kiss it every time” (A131). On March 13, 13 2012, the victim posted a new Internet ad in search of a tenant for the vacant room. The defendant sent her two emails seeking to resurrect his tenancy (A133-34). The defendant also continued to send the victim packages. Those packages included personal effects he took from the victim’s home, such as childhood photos of both the victim and her husband and her husband’s clothing (A128). One package was accompanied by a tape recorder and two cassette tapes with a recording of the Bible (A128). Another package sent on the victim’s birthday included an additional picture of the victim as a child and a handwritten birthday card from the defendant (A132). Another contained a toilet seat (A99). During this time, the victim made several calls to the Albany City Police Department (A101-04; A106). Police filed reports but made no arrest. One time, the responding officer spoke to defendant and told him to cease contact with the victim (A100). Eventually, the defendant was arrested (A101). As a result of the defendant’s conduct, the victim obtained two more orders of protection against him. On October 4, 2011, the victim obtained a no-contact Order of Protection from Albany County Family Court (Dugan, J) against the defendant, effective until October 4, 2013 (A134). On March 26, 2012, the victim obtained a no-contact Order of Protection from Albany City Court (Keefe, J) against defendant, effective until August 27, 2012 (A107). 14 The Unlawful Contact From May 30, 2012 to June 12, 2012, the defendant filed multiple complaints and lawsuits against the victim (A135-36). The nature of the allegations ranged from religious discrimination, to housing code violations, to complaints about the upkeep of her front lawn (A136-37). The defendant also requested dismissal of the Orders of Protections (A136-37). On July 12, 2012, the victim appeared in court to address one of these complaints when the defendant seated himself directly behind her and began whispering in her ear that her collar was not tucked in properly (A138). In addition, the defendant would frequently send handwritten legal documents to the victim asking her to respond to him. On one occasion the defendant drove by the victim’s house as she stood on her lawn and yelled out, “I love you” (A139-40). Defendant at Trial The defendant testified at trial and conceded most of his conduct toward the victim (A142-144). However, he characterized their relationship as intimate and said his contact was welcomed. He told the jury that the victim was abused by her deceased husband and that her current fiancé, Corey Retzke, had assaulted him (A145-48). 15 At the close of proof, the trial court proposed placing some notations on the verdict sheet in order to help the jury to distinguish between the fourteen counts charged to the jury (A150). The court recognized that because there were numerous charges similar in law but involving different factual allegations, it would be nearly impossible for the jury to keep the individual counts straight. Those charges included four counts of Aggravated Harassment in the Second Degree, two counts of Stalking in the Fourth Degree, and eight counts of Criminal Contempt in the Second Degree, each with similar factual allegations. For example, the court proposed noting on the verdict sheet the alleged range of dates for counts 1 and 2 (both Aggravated Harassment in the Second Degree charges) along with a brief description of the allegations (A76). For count 1 the description read “(calling approximately 36 times and sending approximately 13 emails)” (A76). For count 2, it read “(calling approximately 50 times)” (A76). Defense counsel, the trial court, and the assistant district attorney all agreed that those notations on the verdict sheet would be helpful and useful to the jury. The defendant therefore consented to the notations (A150). By the time the verdict sheet was given to the jury, the allegations (as contained in the accusatory instruments) had been read to them twice before. Prior to trial, the jury was read the specific allegations comprising the 14 charges, each of which was similar in law to several other charges filed against the defendant (A37-46). These factual 16 allegations were repeated during jury instructions, after summations (A47-71). On both occasions, the trial court told the jury that the charges were just allegations and “are not evidence in this case” (A46, A47). The trial court was careful to instruct the jury regarding the purpose and limitations of the annotations. The lower court told the jurors that: In addition to listing the charges, I have added the following information on the verdict sheet in order to distinguish between the various charges, the dates and language by which the charges may be distinguished. Please note that the sole purpose for doing so is to distinguish between those charges. It is not to be considered a substitute for my full instructions on the meaning and element of each charge, and it should not discourage you from asking me to define a crime again if a question about it arises. (A72). Ultimately, the jury returned a verdict finding defendant guilty of twelve of the fourteen counts (A76-79). The defendant was acquitted of two counts of Criminal Contempt in the Second Degree, and found guilty of the remaining counts (A76-79). Sentencing At sentencing, an extensive victim impact statement was read to the sentencing court. The victim told the court that she wanted to make the court aware of what it had been like to have been “the object of Dennis O’Kane’s intention for over three years.” She continued, 17 [He] harassed me using every means possible. He has taken me to Small Claims Court twice; taken me to Family Court twice, he tried unsuccessfully to do -- to go to Family Court again three other times. He has filed civil suits against myself and one of my sisters. I’ve missed work, spent countless hours in police stations, the lawyer’s office, and the District Attorney’s Office because of his acts. He has dug up vast amounts of information on me, my former husband, and my family. He’s tracked down my mother, my sister, my mother-in-law, my sister-in-law, and even my ex-husband’s former girlfriend. He has told them I take drugs, that I am suicidal, that I have a fuck buddy, his terms, I apologize for the language, and that I am a battered woman. He has accused me and [Corey Retzke] of conspiracy to murder him, home invasion of my own home, bodily assault and fraud. He wrote an email that he would inform Mr. Wolf’s family and my employers of my alleged crimes and notes, I pray for your sake you did not inject him with cancer. He has threatened to have me admitted to a psychiatric ward for evaluation. He appears to have an obsession with my ex-husband. He even went so far as to research his childhood home of more than 40 years ago, and my father-in-law’s position at that time. While he was my housemate… he frequently spoke of Mr. Wolf’s spirit talking to him and working through him. Mr. O’Kane even argued that I should see him after I had requested no contact…in another email, he said that he did his best to be an extension of Wolf’s love for me… In one of the packages he left after a restraining order was filed, he gave me a cassette tape with a picture of Wolf as a Boy Scout, a picture I had never seen. I think it was from his hometown newspaper back in the 1970’s. The lengths to which he has gone to afflict my life are very disturbing. It has caused great strife in my formally [sic] very close family. My sister Lisa resents me for his intentions which [] included over 100 phone calls. My brother, who I will not name, because I don’t want Mr. O’Kane to target him now, has had fights with my mother over the severity of the stalking and the course of action to take. Another sister would not let her children come visit me because of Mr. O’Kane’s presence, nor would my mother come. 18 Because of Mr. O’Kane’s actions, I had to give away several beloved pets that I had raised from infancy. The pets were no nuisance to anyone, not to my housemates, or my neighbors, or Mr. O’Kane’s. Mr. O’Kane’s repeated legal actions, particularly a civil suit for over three million dollars, necessitated that I retain legal [c]ounsel at a cost of nearly $8,000. As an Adjunct Professor, I do not earn much money, which I think is evidenced by the fact that I have had to take in housemates to make ends meet. These legal fees have put me in debt… His intrusions into my life started small, but steadily increased. His legal filings speak of a conspiracy against him based on my case. I have grave concerns over what he is thinking and planning, and I remain fearful about his acts in the future. Since Mr. O’Kane has been in jail, I have no longer been afraid of taxi cabs, working my yard, or walking in my neighborhood. It has been a great relief that the mail no longer brings notices of legal action. I feel much freer, but fear his tenacity. I fully expect Mr. O’Kane to resume stalking me when his sentence has expired, and I beg you to grant me as much peace as possible. Please sentence Mr. O’Kane in [sic] a maximum sentence. (A151-56). After listening to this detailed statement, Albany City Court (Stiglemeier, J) sentenced the defendant to the maximum, a determinant term of imprisonment of two years of incarceration (A157). In so doing, the court remarked that if he could have sentenced the defendant to more time for him crimes, he would have (A157). The Appeal The defendant appealed, and the People responded. The appeal was heard by Albany County Court (Lynch, J), sitting as the intermediate appellate court 19 pursuant to CPL § 450.60(3). County court held oral arguments before rendering its decision (A86-97). In its decision, county court rejected each and every ground for reversal raised by the defendant (A29-34). Nevertheless, county court reversed the conviction after searching the record and, sua sponte, addressing an issue not raised by either party. Specifically, the court found that the annotations on the verdict sheet, which were consented to by the defendant in the court below, were an error requiring reversal (A34-36). Although county court had held oral arguments in the matter, it never asked either party about the verdict sheet, or even hinted that it might consider that issue (A86-97). Nor did the court call upon the parties for additional briefing before making its decision. The People promptly filed a motion to reargue, as well as a leave application to this court (A10-28). In their motion papers, the People argued that the issue the lower court relied upon was unpreserved and in fact waived, and that therefore the lower court had acted without jurisdiction, and “totally lack[ed] the power to so much as consider the verdict sheet” (A13-14). The People explained that the defendant’s consent constituted a waiver, and cited cases from the Third and Fourth Departments for that proposition (A19). The People also strenuously disagreed with county court’s characterization of the notations as “highly inflammatory” and “bolstering,” noting that the lower court had instructed the jury 20 regarding its purpose in adding the notations to the verdict sheet (A21-23). Finally, to the extent that county court’s decision had suggested that counsel’s decision to consent to the verdict sheet was ineffective, the People noted that the defendant had not borne his burden of showing that his counsel lacked a legitimate strategic reason for consenting to the notations—indeed, he did not even try (A27). The People suggested several possible legitimate, strategic reasons for counsel’s decision to consent to the verdict sheet as written (A27). County court scheduled oral argument on the People’s motion to reargue. At oral argument, county court excoriated the People’s motion as “misguided,” and called the verdict sheet “patently absurd” (A82). When the People attempted to argue that the “adversarial system of justice” required the parties to raise questions on appeal, the judge curtly cut the prosecutor off (A82). “We also have a system of justice,” he said (A82). After admitting that neither defendant’s trial counsel or appellate counsel (who had been appointed by county court) had raised the issue, the court expressed its view that the verdict sheet was an error and wondered aloud, “how can I ignore that?” (A82-83). The court denied the motion to reargue, thereby never reaching the People’s arguments (A84). A Judge of this Court granted leave to appeal (A1). 21 POINT I THE COURT’S SUA SPONTE DECISION BASED ON AN UNPRESERVED AND WAIVED ISSUE WAS ERROR County court’s decision and order violated two fundamental norms of appellate judging. First, that an appellate court does not have jurisdiction to decide an issue waived by the defendant. Second, that the parties in an appellate cause determine the course of the litigation, not the court. At a minimum, county court should have provided the parties with notice of its intentions and an opportunity to be heard. These errors require reversal. A. County Court Had no Jurisdiction to Reach a Waived Issue. Preservation and Interest of Justice Jurisdiction In order to preserve a claim for appellate review, the defendant must make a timely and specific objection before the trial court (CPL § 470.05[2]). The rationale behind the preservation requirement is two-fold. First, defendants are obliged to preserve their claims in order to give the People a fair opportunity to comment and provide case law or evidence to contradict an objection (People v Martin, 50 NY2d 1029, 1031 [1980]; People v Hunter, 17 NY3d 725, 727–28 [2011]). At the very least, a timely objection alerts the other party of the need to develop a record for appeal (Martin, supra at 1031; Hunter, supra at 727-28). Second, the preservation requirement conserves court resources by giving the trial court an opportunity to cure errors and avoid a retrial (Martin, supra at 1031; 22 Hunter, supra at 727-28). Because the important, legitimate concerns behind the preservation rule go to the very heart of the smooth functioning of the criminal justice system, this Court has explained that even in the face of “the sometimes enormous pressures of trial, it is for courts to discharge their responsibilities under the law and for counsel to voice objection when they do not” (People v Smocum, 99 NY2d 418, 423 [2003]). Failure to voice an objection leaves the issue unpreserved, rendering an appellate court unable to consider it in the normal course (CPL § 470.05[2]; People v Starling, 85 NY2d 509, 516 [1995]). An intermediate appellate court may still reach the issue in exercise of its discretion in the narrow circumstance where the interest of justice requires it, pursuant to statutory authority (see CPL 470.15[3][c] & [6][a]). But even where that discretionary authority exists, courts exercise it “sparingly” and “only in that rare and unusual case” that “cries out for fundamental justice beyond the confine of conventional considerations” (People v Rosado, 96 AD3d 547, 549 [1st Dept 2012]; People v Hartson, 160 AD2d 1046, 1048 [3d Dept 1990] [interest of justice reversal available only in “rare cases”]; Dept. of Social Services on Behalf of Beatrice V.P. v Trustum C.D., 97 AD2d 831, 831 [2d Dept 1983] [the “power should be exercised to correct unpreserved fundamental error and not merely to give the unsuccessful litigant a second chance at bat”]; People v Thomas, 120 AD2d 756, 757 [2d Dept 1986] [declining to reverse jury 23 instructions where error did not “deprive defendant of a fundamental constitutional right”]; People v Alt, 50 AD3d 1164, 1165 [3d Dept 2008] [Interest of justice jurisdiction “triggered” where defendant was “deprived… of a fair trial”]). “In criminal appeals, we often are asked to invoke our interest of justice jurisdiction,” the First Department has commented, “but for good reasons we seldom do” (People v Sinha, 84 AD3d 35, 38 [1st Dept 2011], aff’d, 19 NY3d 932 [2012]). The Law of Waiver Standing in contrast to lack of preservation (which can result from simple inaction) is waiver, which involves an affirmative relinquishment or abandonment of a right by the defendant (People v Ahmed, 66 NY2d 307, 311 [1985]; People v Rodriguez, 50 NY2d 553, 557 [1980]). Whereas an unpreserved issue can be reached by an intermediate appellate court properly invoking its interest of justice jurisdiction, a waived issue cannot be reached even in the interest of justice (see People v Seaberg, 74 NY2d 1, 10 [1989] [a waiver constitutes “a decision not to invoke” interest of justice jurisdiction]; see People v Moore, 233 AD2d 670, 671- 672 [3d Dep’t 1996]). Instead, when an issue is both waived and unpreserved, a court may only reach it if it constitutes a mode of proceedings error—an error so fundamental that it “would affect the organization of the court or the mode of proceedings prescribed by law” (People v Patterson, 39 NY2d 288, 295 [1976], aff’d 432 US 24 197 [1977]; People v Agramonte, 87 NY2d 765, 769-70 [1996]; Ahmed, 66 NY2d at 310-11). As this Court has explained, mode of proceedings errors are a “very narrow category” of errors (Agramonte, supra at 769-70) “essential to the form and conduct of the actual trial” and which “implicate fundamental rights that are an integral part of the trial itself” (see People v Webb, 78 NY2d 335 [1991]). They concern matters at the heart of the “essential validity of the proceedings” such that “the entire trial is irreparably tainted” (Agramonte, supra at 770). It makes sense that an appellate court can consider such errors because a defendant simply cannot waive or consent to an error that violates the basic makeup of the court (Patterson, supra at 295; People v Cooke, 24 NY3d 1196, 1197 [2015], cert denied, 136 S Ct 542 [2015] [referring to mode of proceedings errors as “unwaivable”]; People v Griggs, 27 NY3d 602, 606 [2016], rearg denied, 28 NY3d 957 [2016] [same]). The public interest in the functioning of the criminal justice system must allow a court to consider errors so basic that the defendant can hardly be said to have received a trial at all (see Patterson, supra at 296 [mode of proceedings error is one at “basic variance with the mandate of law”]). The Defendant Waived Any Challenge to the Verdict Sheet County court’s decision and order found, as a matter of fact, that the defendant consented to the verdict sheet submitted to the jury (A8). Because that factual determination finds support in the record, it must be accepted as fact by this 25 Court that the defendant did in fact consent to the verdict sheet (People v Brown, 90 NY2d 872, 874 [1997]). That consent constituted a waiver because it was an affirmative abandonment of a legal right by the defendant (People v Damiano, 87 NY2d 477, 482 [1996] [consent is more than mere silence]). Here, there was discussion between the trial court and the parties regarding the verdict sheet, and the defendant agreed to its use1 (A150). That established full consent (see People v Knight, 280 AD2d 937, 940 [4th Dept 2001], lv denied 96 NY2d 864 [2001]; People v James, 256 AD2d 1149, 1149 [4th Dept 1998], lv denied 93 NY2d 875 [1999]). Indeed, this Court has addressed this question in this precise context, ruling that a defendant had “waived the claim asserted on appeal by explicitly consenting at trial to the use of the verdict sheet” with annotations (People v Kassebaum, 95 NY2d 611, 621-622 [2001]). Because the defendant’s consent waived his ability to raise the issue on appeal, the lower court could only reach it if the verdict sheet annotations constituted a mode of proceedings error (People v Mehmedi, 69 NY2d 759, 760 [1987] [mode of proceeding error reachable even after consent by defendant]). The verdict sheet annotations at issue here do not constitute a mode of proceedings error and may be waived by the defendant through consent, as every 1 The trial court’s discussion of the issue eludes to a longer discussion, apparently off the record, and notes that the proposed jury sheet had been “modified” as a result of that conversation. That modification speaks to the level of involvement the parties had in crafting a verdict sheet to which they could both consent. 26 court that has considered the issue has found—including this one (see, e.g., Kassebaum, 95 NY2d at 621-622 [issue waived by consent]; People v McCloud, 121 AD3d 1286, 1292 [3d Dept 2014] [not a mode of proceedings errors]; see People v Damiano, 87 NY2d 477, 482 [1996] [issue waived by consent]; People v Bjork, 105 AD3d 1258, 1264 [3d Dept 2013], lv denied 21 NY3d 1040 [2013], cert denied 134 SCt 1306 [2014] [same]; People v Hicks, 12 AD3d 1044 [4th Dept 2004] [same]). This is unsurprising, since many important procedural rights— more important, indeed, than verdict sheet annotations— may be waived by a defendant (Brown, 90 NY2d at 874 [citing waiver of rights to be present at trial, to be prosecuted by information, and to mistrial]). The defendant in this case did in fact consent to the annotations at issue here. Therefore, as this court has recognized, there was no error. In the absence of consent, the annotations would “offend the letter of the law” (Damiano, 87 NY2d at 482). Consent cures the defect, and renders the issue waived for appellate review (Brown, 90 NY2d at 874; McCloud, 121 AD3d at 1289-1290). But county court, in a clear attempt to whitewash its inability to reach the verdict sheet annotations, held that submission of the annotated verdict sheet constituted a “fundamental defect… akin to a mode of proceedings error” (A9). Yet only a page previous, the Court cited the Third Department decision in People v McCloud, which held that “deviation from the statutorily-authorized annotations 27 to the verdict sheet do not constitute mode of proceedings errors that would require reversal regardless of preservation” (A8; McCloud, 121 AD3d at 1289). That decision is just as clear as this Court’s decision in People v Spivey, which unambiguously holds that a defendant may consent to a verdict sheet with annotations along the lines of those at issue here (People v Spivey, 81 NY2d 356, 361 [1993]), a practice this Court has found is in accordance with statute (CPL § 310.30; Damiano, 87 NY2d at 482). County court ignored that binding case law with its assertion that the verdict sheet annotations were “akin to a mode of proceedings error” (A9). Whether viewed from a logical, linguistic, or legal standpoint, that assertion is inscrutable. It is difficult to see in what way the supposed error is akin to a mode of proceedings error when it expressly does not constitute a mode of proceedings error. Indeed, the distinguishing characteristic of a mode of proceedings error— the one quality that makes it so—is that it cannot be consented to or waived (Patterson, 39 NY2d at 294-295). This ‘error’ can be. So even if the supposed error is like a mode of proceedings error in any number of ways, it is not akin to a mode of proceedings error in the one way that counts. The defendant’s consent cannot be circumvented by blithely concluding that something is “akin” to a mode of proceedings error when it has been held not to be one. 28 Accordingly, county court could not reach the verdict sheet issue because it was waived by the defendant. B. The Verdict Sheet Issue was Also Unpreserved and County Court did Not Reach it in the Interest of Justice. Even if the defendant’s consent could not be deemed a waiver, the fact remains that the verdict sheet issue was unpreserved by a timely and specific objection (A150). As a result, the trial court was never presented with an opportunity to correct its supposed error, and the People were never given an opportunity to comment on the issue (Martin, 50 NY2d at 1031; People v Hunter, 17 NY3d at 727–28). County court therefore could not review the issue except by resort to its interest of justice jurisdiction (CPL § 470.05[2]; Starling, 85 NY2d at 516; see CPL § 470.15[3][c] & [6][a]). But this was a point of law that county court did not seem to grasp. Never in its eight-page decision does the court invoke its interest of justice jurisdiction, or even so much as mention it. Nor does county court’s decision ever note that the issue it found dispositive is unpreserved. Instead, county court appeared to simply assume that there were no impediments to deciding the issue. The court did cite CPL § 470.15(1) for the proposition that a court may “consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant” (A7). But that subsection is the general grant of appellate authority to 29 intermediate appellate courts, which is limited by the preservation requirement of CPL § 470.05(2). Nevertheless, county court referred to the restricted jurisdiction of that section as a “broad scope of review” and explicitly stated that it had examined the verdict sheet “within such scope of review” (A7). Clearly, then, county court was laboring under the misconception that preservation was not required, a basic error of law and of appellate practice. Had county court perceived that it could only review the verdict sheet in the interest of justice, it likely would have followed the lead of the four departments, which routinely refuse to exercise their interest of justice jurisdiction when the proof of guilt is “overwhelming” (see, e.g., People v Lopez, 285 AD2d 356, 357 [1st Dept 2001]; People v Pointer, 262 AD2d 505, 505 [2d Dept 1999]; People v Trombley, 72 AD3d 1402, 1404 [3d Dept 2010]; People v Smith, 179 AD2d 1022, 1022 [4th Dept 1992]). When an intermediate appellate court properly invokes its interest of justice jurisdiction, its decision is a matter of discretion not reviewable by this Court. But an intermediate appellate court can hardly be said to have exercised its discretion if it was unaware of it or of the prudential considerations that other intermediate courts have found important. Here, county court failed to invoke or even note its discretion, which is hardly surprisingly in light of the fact it failed to note or even grasp that the issue it raised sua sponte was unpreserved. Moreover, county court 30 seems to have rested its decision on its view that the verdict sheet annotations were “akin” to a mode of proceedings error, not on its interest of justice jurisdiction. All of that is to say that the lower court decided the jury notation issue as a question of law, and not in its discretion. This Court should take the opportunity to correct this basic misunderstanding of the appellate standards of review, and to instruct county courts sitting as intermediate appellate courts in the proper discharge of their special duties. It is especially important that when an intermediate appellate court seeks to invoke its interest of justice jurisdiction it does so clearly in its decision, in order to apprise the parties and this Court of a fact that impacts the jurisdiction of this Court. 31 POINT II COUNTY COURT’S SUA SPONTE DECISION WITHOUT BRIEFING DEPRIVED THE PEOPLE OF AN OPPORTUNITY TO BE HEARD AND VIOLATED FIRST PRINCIPLES OF APPELLATE PRACTICE AND ADVERSARIAL JUSTICE A. The Anglo-American Adversarial System. “Appellate courts are not roving commissions charged with investigating and rectifying injustice wherever they find it; they are passive tribunals limited to correcting certain types of error brought before them by the affected party in an appropriate manner” (David T Wasserman, A Sword for the Convicted 30). Thus, generally speaking, “appellate courts cannot and will not review an issue that has never been raised by the parties themselves” (In re Estate of Lewis, 114 AD3d 203, 207 [4th Dept 2014], rearg denied, 115 AD3d 1274 [4th Dept 2014], lv granted, 23 NY3d 906 [2014], aff’d as mod, 25 NY3d 456 [2015]). A narrow exception exists where a court lacks subject matter jurisdiction over a case (Matter of Fry v Tarrytown, 89 NY2d 714, 178 [1997]). The rule is a time-honored one, and both case law and scholarship confirm that it is at the very heart of the adversarial system of justice. “What makes a system adversarial rather than inquisitorial,” the Supreme Court has observed, “…is the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties” (McNeil v Wisconsin, 501 US 171, 32 181 n2 [1991]). The judge in an adversarial system takes on the role of a “neutral arbiter” who must decide the issues presented, rather than create them (Greenlaw v United States, 554 US 237, 243 [2008]; Ellen E Sward, Values, Ideology, and the Evolution of the Adversary System, 64 IND. L.J. 301, 302 [1989]; Stephen Landsman, Readings on Adversarial Justice: The American Approach to Adjudication 2 [1988]). The principle or norm that “the parties to the case—not the judges deciding the case—raise the legal arguments” has been rightly called “a central tenet” of our law (Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by Reconsidering Miranda, 149 U. PA. L. REV. 251, 253 [2000]). That view is shared by the “vast majority of American scholars” and the “vast majority of American judges” (see David Alan Sklansky, Anti- Inquisitorialism, 122 HARV. L. REV. 1634, 1638 [2009]). And party control has ancient roots: it was “apparent in English procedure from the earliest times” and apparently appealed to the individualist ideological commitments of the founders, who adopted it (Landsman, supra at 24; Robert J Martineau, Considering New Issues on Appeal: the General Rule and the Gorilla Rule, 40 VAND. L. REV. 1023, 1026-27 [1987] [recounting the development of the Writ of Error]). Even Blackstone recognized the principle (William Blackstone, Commentaries *455). 33 Leading judges and legal scholars have universally disapproved of sua sponte decision making by appellate judges in all but the most limited contexts. As the late Justice Scalia wrote in Carducci v Regan: “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them” (Carducci v Regan, 714 F2d 171, 177 [DC Cir 1983]). Elsewhere, he said: “The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one” (United States v Burke, 504 US 229, 246 [1992] [Scalia, J., concurring]). Similarly, former Justice John Paul Stevens has written that “the adversary process functions most effectively when we rely on the initiative of lawyers, rather than the activism of judges, to fashion the questions for review’ (Cent Bank of Denver, NA v First Interstate Bank of Denver, NA, 511 US 164, 194- 95 n4 [1994]). Likewise, Seventh Circuit Judge Richard Posner has emphasized the importance of waiver to the adversary system, writing: Ours is an adversarial system; the judge looks to the parties to frame the issues for trial and judgment. Our busy district judges do not have the time to play the “proactive” role of a Continental European judge. True, they want to do justice as well as merely umpire disputes, and they should not be criticized when they point out to 34 counsel a line of argument or inquiry that he has overlooked, although they are not obliged to do so and (with immaterial exceptions) they may not do so when an issue has been waived (Burdett v Miller, 957 F2d 1375, 1380 [7th Cir 1992] [citations omitted]). Judge Posner elaborated his view in Tom v Heckler: I wonder in what sense we can claim to have an adversarial system of justice if appellate judges conceive their duty to be to search the record... for errors that the appellant’s counsel missed, and to reverse if any are found.... But the adversarial system is the system we have, and ad hoc modifications which cast an appellate judge... in the role of juge d’instruction are unlikely to improve the system.... (Tom v Heckler, 779 F2d 1250, 1259-60 [7th Cir 1985] [Posner, J., dissenting]). This Court expressed precisely the same point in Misicki v Caradonna (Misicki v Caradonna, 12 NY3d 511, 519 [2009]). Appellate judges, it wrote, are not “freelance lawyers” working their way through the record in search of errors (Id.). Instead, “[o]ur system depends in large part on adversary presentation; our role in that system is best accomplished when we determine legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court” (Id. [brackets and citations omitted]). The Supreme Court of the United States has echoed that sentiment: “In our adversary system, in both civil and criminal cases, in the first instance and on appeal… we rely on the 35 parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present” (Greenlaw, 554 US at 243 [Ginsburg, J]). The general view is that this process produces better results. A major premise of the adversarial system is that vigorous presentation of facts and law by opposing interests will produce more “accurate and just results” than a free-lancing judge (Lassiter v Dep’t of Soc. Servs., 452 US 18, 28 [1981]). The “integrity” of that system is “most undercut where the court eschews any input or presentation by the parties” (Tory A Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 SUFFOLK J. TRIAL & APP. ADVOC. 179 [2012]). Judges across the ideological spectrum—from Scalia to Stevens, Posner to Ginsburg—all agree that the appropriate role of an appellate court is to decide the questions brought to it by the parties to a dispute. That view accords with the broad consensus of scholars and judges from the earliest days of the common law right down through the present day. B. Sua Sponte Decision Making is Unfair to the Parties. As this Court has recognized, for an appellate court to assume the role of appellate counsel and decide appeals upon “distinct ground[s] that [they] winkled out wholly on [their] own would pose an obvious problem of fair play” (Misicki, 12 NY3d at 519). To act without first seeking the briefing of the parties would be to subject them to appeal by ambush—a procedure that plays hob with any 36 reasonable concept of justice. Courts “are not in the business of blindsiding litigants, who expect [them] to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (Id.). Simply in the interest of fairness, parties must be afforded “an opportunity to refute the proposition on which... [a judge decides the] appeal against him” (Id.). The Supreme Court has echoed that rule, in language that sounds in Due Process. “Of course,” the Court observed casually, “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions” (Day v McDonough, 547 US 198, 202 [2006]). These concerns are no less real simply because a judge believes that the error he has found is obvious, egregious, or manifest. Even then, the judge must submit his musings to the parties for comment. At its best, the adversarial system challenges a judge to consider opposing viewpoints, to rethink his opinions, and to shed old preconceptions. Counsels’ research, arguments, and wisdom may expose weaknesses that the well-meaning judge had not considered, or may show him the error of his ways. This adversarial exchange of views undoubtedly makes for better judicial decision making. If the judge comes away still convinced he is correct, his decision will be all the stronger for having confronted the opposing argument head-on. If the judge changes his mind after considering all the arguments, the system worked because the judge ultimately came to the correct decision (Cf. John 37 Stuart Mill, On Liberty and Other Essays at 5 [John Gray Ed, 1998] [1859] [“the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race… those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose… the clearer perception and livelier impression of truth, produced by its collision with error.”). A judge who refuses to seek supplemental briefing by the parties, on the other hand, deprives himself of the benefit of counsels’ considered arguments by his act of judicial immodesty. A judge who raises an issue sua sponte and issues a decision only after considering it in the comfort of his chambers subjects himself to the danger of the judicial echo chamber, where the judge’s initial thought is inevitably his final thought. When a judge acts in such a matter as both advocate and arbiter, he must inevitably shed some of his luster as the neutral arbiter that our system expects him to be (Landsman, supra at 34). “The first idea in the administration of justice is that a judge must necessarily be free from all bias and partiality. He cannot be both judge and party, arbiter and advocate in the same cause. Mankind are so agreed in this principle, that any departure from it shocks their common sense and sentiment of justice” (People v Scott, 34 AD2d 407, 409-10 [4th Dept 1970], quoting Oakley v Aspinwall, 3 NY 547, 549 [1850]). A judge who acts in such a 38 manner is no longer acting as the disinterested umpire; he is playing God (Adam A Milani & Michael R Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 TENN. L. REV. 245, 253 [2002]).2 The tonic to the cancer of partiality is party control of the process through the adversarial system. When the litigants chart the course of the proceedings, “there is little opportunity for the judge to pursue her own agenda or to act on her biases” (Landsman, supra at 34). A judge who does not take the lead is “unlikely to appear to be partisan or become embroiled in the contest,” and that detachment “preserves the appearance of fairness as well as fairness itself” (Id.; Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 383 n.41 [1982]). As a result, the parties and the public can have greater faith in the ultimate outcome of the case (Landsman, supra at 44 [“Adversary theory holds that if a party…feels that he has been given a fair opportunity to present his case, he is likely to accept the results whether favorable or not.”]). Fostering the feeling of being treated fairly is, itself, an important goal of a legal system (George C. Christie, Objectivity in the Law, 78 2 Perhaps ironically, it was the judge’s actions in this case that most resemble a mode of proceedings error. Failure to accord the parties an opportunity to be heard is surely at “basic variance with the mandate of law” (Patterson, supra at 296), and touches upon features “essential to the form and conduct” of an appeal and which “implicate fundamental rights that are an integral part of the” appellate process (People v Webb, 78 NY2d 335 [1991]). That failure strikes at the “essential validity of the proceedings” (Agramonte, 87 NY2d at 770), because an appeal where the parties are ignored can hardly be called an appeal at all. As Professor Fuller put it, “[i]f the grounds for the decision fall completely outside the framework of the argument, making all that was discussed or proved at the hearing irrelevant . . . the adjudicative process has become a sham, for the parties’ participation in the decision has lost all meaning” (Lon L Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 388 (1978]). 39 YALE L.J. 1311, 1329 [1969]) (“the primary social purpose of the judicial process is deciding disputes in a manner that will, upon reflection, permit the loser as well as the winner to feel that he has been fairly treated”).3 But as a judge becomes more involved in guiding litigation, “both theoretical analysis and empirical data suggest that his biases are likely to be intensified and his decisions opened to prejudicial influence” (Landsman, supra, at 37 [considering an inquisitorial judge assigned the task of making factual inquiry]), a fact recognized by the great Professor Lon Fuller and others (Lon L Fuller, Talks on American Law 43 [Harold J Berman ed., 1961]). And, unsurprisingly, litigants burned by a sua sponte decision are less likely to accept the result of that decision. Indeed, as Professor Fuller put it, “[i]f the grounds for the decision fall completely outside the framework of the argument, making all that was discussed or proved at the hearing irrelevant . . . the adjudicative process has become a sham, for the parties’ participation in the decision has lost all meaning” (Lon L Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 388 [1978]). This case illustrates the point that a judge, acting in good-faith, might nevertheless lose his way when he acts as an advocate. After county court made its 3 That goal is especially important in an appellate cause. After all, where a party feels justifiably aggrieved by a trial court decision he has recourse to an appeal as of right. But where the intermediate appellate court refuses to hear the arguments of the parties this Court is the only power under heaven that can correct its error. And since grant rates for criminal leave applications have hovered between 2% and 5% in recent years, that is understandably of little comfort to the wronged party (See NY STATE UNIFIED COURT SYSTEM, 2015 ANNUAL REPORT OF THE CLERK OF THE COURT OF APPEALS, 9 [2016]); 40 decision in this case (a decision which the People believe was in error, see Point III, infra), the People filed a motion to reargue, giving the judge an opportunity to revisit his decision and correct his error. County court granted oral argument to discuss whether to grant the motion and reconsider its ruling. The People attempted to present its argument, including the argument that the issue was waived and therefore not able to be reached by county court. But rather than engage with the argument, county court found itself defending its decision. “[Y]our motion is misguided,” it told the People, “in the sense that you’re taking the position that I was somehow searching for an issue that would not readily have been observed…” (A82). It went on to say that the verdict sheet was “patently absurd” (A82). “But we have an adversarial system of justice,” the People began to say before being curtly cut off by the court. “We also have a system of justice,” the court said, noting that it was not focused on whether the issue could be raised but on what it viewed as error (A82-83). “So how can I ignore it?” the judge concluded (A83). The Court denied the motion to reargue, thereby closing itself to the People’s arguments (A84). The People do not doubt that the judge acted in accord with the dictates of his conscience and with what he viewed his duty to be. But he did so in a vacuum, without the benefit of full briefing on the issue upon which he based his decision. That was exacerbated by the fact that the judge did not grant the motion to reargue, 41 thereby never giving the parties an opportunity to make full dress arguments. Although this was unfortunate, it is not surprising. Once the judge made his decision his thinking was irrevocably settled on the issue. The People’s options— an appeal to this Court and a motion to reargue—required a posture wherein the People were forced to attack the judge’s position. Had the judge called for additional briefing when the issue first occurred to him, both parties would have been arguing the issue for the first time before a neutral arbiter who did not have skin in the game. Instead, the judge’s premature decision forced the People to argue against the judge, and put the judge in a position where he felt he needed to defend himself. That is not a situation conducive to justice or fairness. C. Other Concerns with Sua Sponte Decision Making. Prudential concerns also counsel against sua sponte decision making. After all, the courts of this state are busy and considering issues not raised is “an inefficient use of judicial resources” (Eric D Miller, Comment, Should Courts Consider 18 USC § 3501 Sua Sponte?, 65 U. CHI. L. REV. 1029, 1050 [1998]). Relying on the parties to do the tedious work of reviewing the record, raising issues, and researching and presenting arguments allows appellate courts “to focus their energies on evaluating these arguments,” rather than taking the whole task into their hands (Id.; Reed v Ross, 486 US 1, 16 [1984] [“Appellate courts [would be] overburdened with meritless and frivolous cases and contention” without 42 effective advocates to limit issues “at least to those which may be legitimately regarded as debatable”). Decisions that raise issues sua sponte do little to encourage the parties to thoroughly research their cases; a judicial safety net may function as a sort of insurance against poor lawyering, promoting moral hazard on the part of attorneys (see Tom Baker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237 [1996] [“What moral hazard means is that, if you cushion the consequences of bad behavior, then you encourage that bad behavior.”]). And if courts get into the business of deciding unraised issues sua sponte, there will be inevitable pressure to decide more and more such issues, until eventually the exceptions swallow the rule. Courts are ill-equipped for the general, legislature-like tasks that such an undertaking would entail (see Schlesinger v Reservists Comm. to Stop the War, 418 US 208, 221 n.10 [1974]). D. Law and Equity: A Way to Strike an Appropriate Balance. Against these concerns is the judicial desire to “do justice” (Burdett v Miller, 957 F2d 1375, 1380 [7th Cir 1992]), perhaps owing to unresolved tension from the merger of law and equity (Barry A Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to be Heard, 39 SAN DIEGO L. REV 1253, 1262-64 [2002]). Certainly, the county court felt such a tension in this case. He had spotted an issue that, at first blush, he thought might be dispositive, and 43 one that he felt was weighty and egregious. “So how,” he wondered, “can I ignore it?” (A83). The People do not suggest that an appellate court faced with that dilemma must ignore the issue. But, as this Court has said, fairness requires that a judge who believes he has spotted an issue must give the parties “an opportunity to refute the proposition on which... [he decides the] appeal against him” (Misicki, 12 NY3d at 519). Chief Justice Traynor of the California Supreme Court made the same observation when he wrote “it is only fair that the appellate court direct the attention of counsel” to issues it is considering but which were not raised, and “if it appears that they may affect the outcome of the case… give [the parties] the opportunity to submit additional briefs (Roger J Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. CHI. L. REV. 211, 219 [1957]). Justice Breyer echoed the sentiment for the Supreme Court in Trest v Cain, where he wrote for the majority, “We do not say that a court must always ask for further briefing when it disposes of a case on a basis not previously argued. But often, as here, that somewhat longer (and often fairer) way ’round is the shortest way home” (522 US 87, 92 [1997]). The People submit that this Court should take the opportunity to instruct all appellate courts within the state that requesting additional briefing when they raise an issue sua sponte is not only fairer, but required. This can be accomplished 44 without undue prejudice to the parties, since courts possess inherent authority to control their calendars (see Plachte v Bancroft, Inc., 3 AD2d 437, 438 [1st Dept 1957] [calling the proposition “ancient and undisputed law”]). How a court does this may be up to them; they might ask the parties to prepare to address the question at oral argument or might ask the parties to address the question in a writing limited in scope and length, and submitted on an expedited basis (Barry A Miller, supra at 1304). No matter what course the court chooses, it should give the parties “fair notice and an opportunity to present their positions” (Day, 547 US at 202; Miller, supra at 1304).4 In many cases there will be no prejudice at all to the parties, since (as in this case) the defendant is out of custody on bail. In all other cases, the minimal prejudice occasioned by a short delay is outweighed by the benefit of getting the issue right. 4 No court, it seems, has ever explicitly ruled that sua sponte appellate decisions violate due process. Yet, there is a fair argument that they do. After all, they “adversely impact the life, liberty, or property of a party without giving that party an opportunity to be heard on the issue that the court deems dispositive” (Milani & Smith, 69 TENN. L. REV. at 263 [arguing that sua sponte decisions offend due process]). The Supreme Court has long held that the two indispensable rudiments of due process are notice and an opportunity to be heard (see Mathews v Eldridge, 424 US 319, 348-49 [1976]). Whether viewed through the lens of due process or not, the People submit that notice and an opportunity to be heard should be required in the interest of fundamental fairness to all parties. 45 POINT III THE VERDICT SHEET AT ISSUE WAS NOT IN ERROR; IT FOLLOWS THAT THERE WAS NO INEFFECTIVE ASSISTANCE OF COUNSEL FOR CONSENTING TO IT A. The Verdict Sheet was Not in Error. A Tale of Two Rules: the Consent Rule and the Non-Consent Rule A long and unbroken line of cases from this Court, most recently People v Miller (18 NY3d 704 [2012]), establish the proposition that where a defendant does not agree to the inclusion of annotations beyond those expressly authorized by CPL §310.20(2), it constitutes reversible error not subject to harmless error analysis. In People v Spivey, this Court wrote that it is error to give the jury a verdict sheet with language not authorized by statute “unless the parties agree” otherwise (Spivey, 81 NY2d at 361), and in People v Damiano it explained that harmless error does not apply (Damiano, 87 NY2d at 484). This Court reaffirmed those rules again in Miller, where the defendant specifically objected to the verdict sheet annotations (Miller, 18 NY3d at 708). But there is a different rule where the defendant consents to the verdict sheet annotations. This Court has said that where the record “establishes that the annotated verdict sheet was submitted to the jury with defendant's consent… no error in its submission occurred” (People v Angelo, 88 NY2d 217, 224 [1996]; 46 Damiano, 87 NY2d at 482 [“the court may only furnish an expanded or supplemental verdict sheet ‘with the consent of the parties…’”]). That rule is hardly surprising. Generally speaking, when a procedure is consented to by the parties, it is not only not reversible error, it is not error at all. As this Court has explained, “the parties to a litigation may adopt their own rules ‘by the simple expedient of failing to object’” (People v Mezon, 80 NY2d 155, 160 [1992]; People v Lawrence, 64 NY2d 200, 206-207 [1984]; Horton v Smith, 51 NY2d 798 [1980]) or, as here, upon consent, express or implied (Brown, 90 NY2d at 874). Even important procedural rights may be waived in this way (Id. [citing waiver of rights to be present at trial, prosecuted by information, and to mistrial]). As this Court explained in People v Lawrence: Generally, parties to litigation, even parties to a criminal prosecution, may adopt their own rules at trial by the simple expedient of failing to object to evidence offered or to except to instructions given the jury. Thus, there are decisions which have held the People bound by their failure to object to rulings of the court although the omission resulted in the imposition of a higher standard of proof upon them. Similarly, there are any number of statutory pretrial rights available to a criminal defendant which may be lost by inaction (e.g., the right to a preliminary hearing [CPL 180.10]; the right in some instances to testify before the Grand Jury [CPL 190.50, subd 5]; the right to move for discovery [CPL 240.30]; etc.). The burden rests on the parties to protect their own rights by asserting them at the time and in the manner that the Legislature prescribes. (Lawrence, 64 NY2d at 206-207 [citations omitted]). 47 As explained in Part I, supra, there is a narrow category of procedures that are deemed so indispensable to our system of justice that a defendant cannot waive them—so called “mode of proceedings” errors. But this is not one of those errors, as this Court’s decisions in Angelo and Damiano established by sanctioning consent to expanded verdict sheets upon consent of the parties (Angelo, 88 NY2d at 224; Damiano, 87 NY2d at 482). Simply put, county court erred in finding the verdict sheet annotations to be in error. Lower Court Reliance on the Two-Rule System The appellate divisions have long relied upon the decisions of this court in their decisions dealing with jury sheet annotations. They have reversed verdicts where the parties did not consent to the annotations (see, e.g., People v Robertson, 185 AD2d 210, 211 [1st Dept 1992]; People v Kelly, 164 AD2d 767, 768 [1st Dept 1990]; People v Sotomayer, 173 AD2d 500, 502-503 [2d Dept 1991] [noting overturning fifteen verdicts based on the decisions]; People v Vargas, 199 AD2d 291, 292 [2d Dept 1993]; People v Soler, 52 AD3d 938, 940 [3d Dept 2008]; People v Gerstner, 270 AD2d 837, 837 [4th Dept 2000]). And they have affirmed where the parties did consent (People v Santos, 41 AD3d 324, 325 [1st Dept 2007]; People v Thomas, 287 AD2d 326, 327 [1st Dept 2001); People v Fecunda, 226 AD2d 474, 475 [2d Dept 1996], lv denied 88 NY2d 936 [1996]; People v McCloud, 121 AD3d 1286, 1289-1290 [3d Dept 2014]; People v Bjork, 105 AD3d 48 1258, 1264 [3d Dept 2013], lv denied 21 NY3d 1040 [2013], cert denied 134 SCt 1306 [2014]); People v Johnson, 96 AD3d 1586, 1587-88 [4th Dept 2012]; People v Knight, 280 AD2d 937, 940 [4th Dept 2001], lv denied 96 NY2d 864 [2001]). Committed to the appellate divisions is the important task of determining whether a defendant consented to jury sheet annotations—a factual determination that this Court does not review (Brown, 90 NY2d at 874). Once that determination has been made, the appellate divisions understand what the clear commands of this Court’s cases have been, and they have no trouble putting those decisions into practice. That county court ignored the clear weight of authority from each of the departments simply underscores how far off the beaten path it had to go in order to make its erroneous result. The Verdict Sheet Annotations in this Case were Not Prejudicial The rationale for requiring the consent of the parties before supplementing the verdict sheet is threefold. First, there is the risk that careless wording could be suggestive to the jury (see People v Owens, 69 NY2d 585, 590 [1987]; People v Taylor, 76 NY2d 873, 874 [1990] [citing Owens]). Second, there is a relevant question of what allegations or statutory elements should be included on the jury sheet, which might also cause prejudice (Owens, supra at 590). Third, there is a danger that the jury might perceive that the information on the verdict sheet is of particular importance (Id.). 49 None of these dangers are present in the instant case, and this Court can be sure of that for three reasons. First, because the annotations here were mere allegations of the sort approved of in People v Moore. In that case, the court sent copies of several counts of the indictment in to the deliberating jury over the objection of counsel. This Court affirmed, explaining that this did not implicate the concerns articulated in Owens since “the contents of the indictment were not new,” had been previously read to the jury, and “did not purport to be a statement of the law” (People v Moore, 71 NY2d 684, 688 [1988]). In part because they were mere allegations, already known to the jury, they did not “emphasize[] one side of the case to the exclusion of the other” (Id.). The same is true here. The jury was certainly aware of the allegations in the accusatory instruments (they had been read to already them twice before [A37-46; A47-71]), and the annotations merely parroted those allegations. It would be no more or less prejudicial to have sent the accusatory instruments in with the jury—a procedure that would not have even required the defendant’s consent (Id.). Second, the lower court was careful to instruct the jury that the annotations had no evidential weight and were mere allegations, and that they were provided only to help them distinguish the charges (Cf. Moore, supra at 688 [trial court “carefully explained the nature of an indictment for the jury again as only a charge, lacking any evidentiary value”]). Juries are presumed to follow the instructions 50 they are given, and there is no reason to presume they did not do so here (People v Baker, 14 NY3d 266, 274 [2010]). Third, this Court should have confidence that the annotations were not prejudicial because his attorney consented to them. As this Court has recognized, it is “trial counsel who are best positioned to assess the usefulness of such references in the deliberative process and/or the prejudice that may inure therefrom” (Damiano, 87 NY2d at 482-83). “Trial counsel”—not a reviewing court—“is best equipped to assess the value of materials provided to the jury which are not expressly authorized by statute” (Id. at 483). That remains as true today as it was when it was written in 1996, and it applies in this case. Damiano’s deference to the wisdom of defense counsel required the humility to understand that an appellate court is ill-equipped to determine what annotations would be useful to a jury without having gone through the give-and- take of trial. But county court exercised no such humility when it characterized the verdict sheet as “replete with extraneous, and highly inflammatory, information” (A7) and “patently absurd” (A82). Moreover, the court wrote that the annotations “effectively marshalled and bolstered the People’s proof” (A7-8). County court was wrong in all respects. First, there was nothing “highly inflammatory” about the language used in the verdict sheet. The description for count 1, for example, read “(calling approximately 36 times and sending 51 approximately 13 emails)” (A76). For count 2, it read “(calling approximately 50 times)” (A76). If this was inflammatory, then so are street signs. Notably, the language used in the verdict sheet hewed closely to the language used in the accusatory instruments, but in abbreviated form. By the time the jury was given the verdict sheet, the accusatory instruments had already been read to them twice—no doubt inflaming their passions each time. It is notable that the indictment sent back to the jury in People v Moore alleged that the defendant had caused the death of the victim by asphyxiation through smothering (Id. at 686). That allegation was undoubtedly more “inflammatory” than any of the accusations against the defendant here, yet Moore affirmed the defendant’s conviction. Nor were the annotations in any way bolstering. As this Court has explained, “the term ‘bolstering’ is used to describe the presentation in evidence of a prior consistent statement—that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony” (People v Smith, 22 NY3d 462, 465 [2013]; Black’s Law Dictionary 176 [6th Ed 1990] [“occurs when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party”]). Of course, the annotations on the verdict sheet were merely allegations, not evidence, as the jury was explicitly instructed. Nor could any of the language conceivably be considered evidence, much less evidence that 52 bolstered an in-court statement by a witness. Thus, no party can be said to have improperly used one item of evidence to add credence or weight to another. Similarly, the annotations did not ‘marshal’ the proof—indeed, they did not refer to any proof in evidence, just allegations. Since the annotations did not refer to the proof or the evidence, it plainly cannot be said to have marshalled it. Far from being inflammatory, marshalling, or bolstering (and especially in light of the trial court’s instructions regarding the annotations) any reasonable juror could only have understood them in one way: as aids to assist the jury in keeping their verdict tied to the evidence supporting each charge. In so doing, the annotations actually decreased the danger that the jury would make their decisions based on an emotional response to the huge mass of evidence presented. B. Counsel was not Ineffective for Consenting to the Verdict Sheet. County court’s decision is not a model of clarity. While it appears to rest its reversal of the jury’s verdict on its erroneous belief that the verdict sheet annotations constituted reversible error even if consented to, county court also addressed counsel’s performance in consenting to the verdict sheet. And although county court rejected each of the arguments for reversal raised by counsel to support the defendant’s ineffectiveness claim, county court also wrote that consent to the verdict sheet in this case evidenced “ineffective assistance of counsel at its worst” (A8). If the trial court’s innocuous attempt to focus the jury’s attention to 53 the task at hand was actually “highly inflammatory,” then that argument might have some force. Since it was not, county court’s ineffective assistance conclusion is pure hyperbole. The test for ineffective assistance is whether an attorney provided his client “meaningful representation” (People v Flores, 84 NY2d 184, 187 [1994]). And although the meaningful representation standard articulated by this Court does not require a strict showing of prejudice it does require, at a minimum, some sort of “deficient conduct” (see People v Caban, 5 NY3d 143, 155 [2005]). Even where some deficient conduct has been found, meaningful representation does not equate to perfect representation (People v Aiken, 45 NY2d 394, 398 [1978] [“[R]epresentation… need not be errorless”]). The ultimate question is whether the attorney’s errors were so “egregious and prejudicial” as to undermine the fairness of the proceedings (Flores, 84 NY2d at 188-89; People v Benevento, 91 NY2d 708, 7123 [1998]). In applying that standard, reviewing courts must not confuse “true ineffectiveness with mere losing tactics” (People v Baldi, 54 NY2d 137, 146 [1981]). Courts may not use the benefit of hindsight to second-guess defense counsel because a different course might have been more effective (Benevento, 91 NY2d at 712). Instead, defense counsel’s performance must be “objectively evaluated” for consistency with the strategic decisions of a “reasonably competent 54 attorney” (People v Satterfield, 66 NY2d 796, 799 [1985]). If the defense strategy was reasonable and legitimate in light of the evidence presented, it is not ineffective, even if it was ultimately unsuccessful (Benevento, supra at 713). A defense counsel is “strongly presumed” to make decisions in the exercise of sound professional judgment, and appellate courts accord a “heavy measure of deference” to their judgments (Strickland v Washington, 466 US 668, 690-91 [1984]). It is the defendant who bears the hefty burden of showing that counsel lacked any legitimate or strategic reason for his conduct (People v Barboni, 21 NY3d 393, 407 [2013]; People v Porter, 82 AD3d 1412, 1415 [3d Dept 2011]). While county court recited this standard in its decision and order (A3-4), its failure to apply it faithfully rendered that a hollow ritual. County court made no attempt to explain how consenting to the verdict sheet was “deficient conduct,” especially in light of decisions of this Court that such consent is not in error (see Part III[A], supra). Nor did county court make any credible argument that consent was so “egregious and prejudicial” that it undermined the fairness of the defendant’s trial. Instead, the county court merely reached a conclusion: that counsel’s consent evidenced “ineffective assistance of counsel at its worst” (A8). But that ipse dixit cannot substitute for legal reasoning, and a decision based on it cannot stand. 55 A reviewing court is not permitted to simply substitute its own judgment for that of the trial attorney. An attorney is not ineffective simply because the reviewing court might have handled a situation differently. This is not the standard, and the pages of the New York Reports are littered with reminders that appellate courts do not sit to second-guess every decision a defense attorney makes, or to require a new trial every time a defense attorney makes an error (see, e.g., Satterfield, 66 NY2d at 799-800 [“It is not for this court to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one”]; Benevento, 91 NY2d at 712; Baldi, 54 NY2d at 151 [hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel]). Nor can county court’s (mistaken) impression that counsel waived a particularly important right justify its decision. Even where defense counsel waives far more serious rights of a constitutional dimension, as opposed to mere statutory procedures, there is no presumption of ineffectiveness (see People v Tortorici, 249 AD2d 588 [3d Dept 1998], aff’d 92 NY2d 757, 767 [1999] [defense counsel “failed to move for a competency hearing,” which implicated a due process right, found not to constitute ineffective assistance]). Moreover, since county court raised the issue sua sponte, its decision encounters another roadblock. To prevail on a claim of ineffective assistance of 56 counsel, the defendant bears the burden of showing the complete absence of any legitimate or strategic reason for his attorney’s supposedly ineffective conduct (Barboni, 21 NY3d at 407). Obviously, the defendant did not meet that burden. But neither did county court, acting as his advocate. Defendant’s trial attorney may very well have thought that the sheer number of charges would confuse the jury, which would then act upon a holistic sense of the case, rather than upon the evidence supporting each count. She may have concluded that explaining to the jury what charges related to what alleged conduct would aid the jury in rejecting the weaker counts. She may have hoped that focusing the jury’s attention on the counts would force them to more critically consider each bit of evidence. So long as some legitimate, strategic reason for why the defendant’s attorney consented to the verdict sheet can be conceived of, then she was effective. Case law from the appellate divisions supports this conclusion. In one case where counsel consented to an annotated verdict sheet—and whose representation included a host of additional deficiencies— the First Department nevertheless concluded that there was no basis for a finding of ineffective assistance of counsel (People v Santos, 41 AD3d 324, 325 [1st Dept 2007]). Both the Second Department and the Fourth Department have reached the same conclusion (People v James, 114 AD3d 1202, 1207 [4th Dept 2014], lv denied, 22 NY3d 1199 [2014] [Error “not so prejudicial as to deprive defendant of a fair trial and thus does not 57 constitute ineffective assistance”]; People v Mason, 176 AD2d 358, 358 [2d Dept 1991] [“minimal parenthetical notations” on verdict sheet did not deny defendant a fair trial or constitute ineffective assistance]). One other point is worth noting. Defense counsel was given a very difficult case, with a very volatile defendant. That defendant initially refused to be sworn, and once sworn admitted much of the case against him (A33; A142-144). Under those circumstances, defense counsel nevertheless managed to secure an acquittal on two of the fourteen counts. Perhaps that is attributable to counsel’s canny decision to consent to the verdict sheet annotations, crystalizing the issues for the jury. Perhaps not. In either case, defense counsel’s efforts deserve to be commended, not condemned. Accordingly, the defendant was not denied effective assistance of counsel and this Court should affirm the judgment of conviction. Conclusion County court’s inability to settle on a basis for its ruling renders it a conclusion in search of a justification. But neither explanation county court flirted with can support its conclusion. Consent to verdict sheet annotations is not error, and it follows that it is not deficient conduct for the purposes of ineffective assistance. County court’s decision and order should be reversed, and the judgment of conviction should be affirmed. 58 CONCLUSION THIS DECISION AND ORDER OF COUNTY COURT SHOULD BE REVERSED, AND THE CONVICTION SHOULD BE AFFIRMED. RESPECTFULLY SUBMITTED, P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR APPELLANT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 Dated: November 28, 2016 By:_______________________ CHRISTOPHER D. HORN Of Counsel VINCENT STARK Of Counsel