The People, Appellant,v.William Morrison, Respondent.BriefN.Y.Mar 20, 20181 Mary R. Humphrey Attorney & Counselor At Law Also admitted in CT September 29, 2017 State of New York Court of Appeals John P. Asiello Chief Clerk and Legal Counsel Clerk's Office 20 Eagle Street Albany, NY 12207-1095 Re: People v. Morrison (William) APL-2017-00105 Dear Chief Clerk Asiello: William Morrison respectfully requests that this Court affirm the Memorandum and Order of the Fourth Judicial Department dated March 24, 2017 which granted Mr. Morrison a new trial. Pursuant to the letter from the Court of Appeals dated June 21, 2017 we hereby adopt the Appellant Brief in its entirety and the Appendix. We, also, hereby adopt herein the facts as set forth in the Statement of Facts in the Appellant Brief. 4063 Oneida Street, Suite 6 * New Hartford, NY 13413 * Phone: (315) 732-4055 * Fax: (315) 793-1061 email@example.com 2 I. O'Rama and CPL § 310.30 are procedural requirements based on due process rights and allegations that juror's notes are ministerial are irrelevant. Under Crim. Proc. Law § 310.30 and case law when the jury sends a note to the court the court must give notice to both counsel in the presence of the defendant and must give the requested information or instruction as the court deems proper. The People of the State of New York v. John O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159 (1991). When such a note is received the court should mark the note as a court exhibit, read the note into the record in the presence of both counsels and defendant. Id. This gives both counsels an opportunity to suggest what they believe is an appropriate response. Id. The court should apprise counsel of the substance of the responsive instructions it intends to give, so that counsels can seek any modifications and/or other instructions they deem appropriate. Id. The jury should be returned to the courtroom and the note read into the record in the presence of the jury. Id. The Court would then provide the jury with the agreed upon and/or appropriate responses with consideration of the input from counsels. Crim. Proc. Law § 310.30 makes absolutely no provision(s) for exception(s) of the notice requirement. O'Rama makes only very limited exceptions. The 3 exceptions under O'Rama have allowed for a summary of the note to be put on the record. Or that the note's sum and substance be put on the record. Id. O'Rama makes no exception to altogether forgo reading a jury note into the record. An appellate court ordered reversal and a new trial where the Court did not read a jury note into the record or provide an explanation as to why the jury note was not be read into the record. The People of the State of New York v. Ronald Miller, 163 A.D.2d 491, 558 N.Y.S.2d 591 (1990). The trial Court here did not read court exhibit 9 into the record or offer an explanation as to why he would not read court exhibit 9 into the record. A9. Just was in Miller where the Court reversed the trial Court and ordered a new trial this Court should affirm the Fourth Department and order a new trial. Counsel for The People argues that court exhibit 9 was a request to leave for the day as it was about the time that the jury had always left for the day and the time that the Court had promised the jury that they would not work beyond. The jury had specifically asked in prior jury notes if they could leave for the day and/or start at a specific time the next day. RA633. RA639. In court exhibit 4 the jury asks " . . . [c]an we come back at 9:00 a.m. tomorrow please". RA633. In court exhibit 10 the jury asks "[c]an we come back tomorrow at 10:00 a.m. . . . ". 4 RA639. Trial Court had made it clear on the record what time the courthouse closes and had previously made it clear that the jury could request to leave for the day if deliberations continued late into the day. RA582. Since the Court expressed instructions regarding when the courthouse closes and prior jury notes specifically asked to leave for the day, it is not reasonable to believe that court exhibit 9 was a request to leave for the day. It would appear that if, in fact, the jury wanted to cease deliberations for the day that they would have specifically asked to leave for the day as they had made that specific request twice before. The Court had always been understanding on this issue previously and no reason existed to think that the Court would not have summarily granted such a request. Counsel for The People argues that the trial court was afforded alternative notice procedures. However, the trial court here took no alternative notice procedures to insure compliance with CPL § 310.30 and O'Rama. The Court as it related to court exhibit 9 states on the record " . . . I will not read that into the record, but I'm sure you know what it says. ". A9. No other mention is made to court exhibit 9 anywhere in the record. The trial court took no alternative notice as it relates to the notice and procedural requirements under CPL § 310.30 and under O'Rama. 5 Counsel for The People argues that court exhibit 9 is ministerial. I respectfully disagree that ministerial jury notes are exempt from either CPL §310.30 or O'Rama. As the majority points out in its memorandum and order the note is ambiguous. The majority also points out the statement "[n]ot sure what to do" is a definite request for direction. Since the note is ambiguous, I am not sure that an Allen type instruction was appropriate or that it directly addressed the jury's request for direction. In any case, the argument of The People and the finding of the dissent that court exhibit 9 was ministerial, is speculative. Given the ambiguity of court exhibit 9 the argument and finding by the dissent is and can only be speculative. A Defendant was granted a new trial after a verdict of guilty for a jury note not read into the record. The People v. Julian Silva, 24 N.Y.3d 294, 22 N.E.3d 1022, 998 N.Y.S.2d 154 (2014). Mr. Morrison's matter is analogous to Silva in that both juries reached a verdict of guilty and in both a jury note was not handled by the trial court under the guidelines and procedures set forth in CPL §310.30 and O'Rama. In Silva the trial record does not establish that the Court or the attorneys were made aware of the jury note. Here, the trial stated that he has court exhibit 9 and will not read it into the record. A9. Here, just as in Silva a jury note was not read into the record. Therefore, the record does not establish that either counsel 6 was made aware of the specific contents of court exhibit 9. We have no proof that either counsel had an opportunity to read the contents of the jury note. The trial Court proceeded to give the jury Allen-type instructions. The record contains nothing that indicates that either counsel believed the Allen-type instructions were appropriate or directly responded to the jury note. Under Silva, Mr. Morrison is legally entitled to a new trial. Mr. Morrison's case is unlike the case where the trial Court read the jury notes into the record, but before the Court and counsels could respondent the jury returned with a verdict. The People v. Terrance L. Mack, 27 N.Y.3d 534, 55 N.E.3d 1041, 36 N.Y.S.3d 68 (2016). During a recess the jury sent out three notes. Id. When court reconvened the trial Court read all three notes into the record. Id. Before the Court could respond to the notes, the jury announced it had a verdict. The Appellate Division ordered a new trial. But, this Court reversed holding that counsel had meaningful notice of the contents of the jury notes and that no mode of proceedings error occurred. Here, trial Court never read court exhibit 9 into the record and therefore a mode of proceedings error did occur. Mr. Morrison is entitled to a new trial under Mack. Also, unlike Mack as argued in Appellant Brief the matter need not have been preserved. Mr. Morrison's claim under CPL § 7 310.30 and O'Rama is preserved. (See arguments related to preservation in Appellate Brief.) Mr. Morrison is entitled to a new trial under CPL §310.30, O'Rama and its progeny as the notice and procedural requirements under same were not met. II. Reconstruction of the Record is not a viable or practical solution for this matter as reconstruction would not comply with the procedural and notice requirements of CPL § 310.30 and O'Rama. A reconstruction hearing by definition would not comply with or give the notice requirements under CPL §310.30 and O'Rama. A reconstruction hearing by definition is being done after the fact. A reconstruction hearing would not establish notice as clearly notice and/or a record establishing proof of notice was not made. In fact, the opposite is true. Trial Court clearly stated on the record that he would not read court exhibit 9 into the record. A49. Just, as argued in Appellant Brief and above notice is required under CPL §310.30 and under O'Rama. A reconstruction hearing is not practical. The events related to court exhibit 9 and trial Court's failure to read it into the record occurred on March 1, 2007. 8 That was over a decade ago. It is not practical that trial Court or counsels will remember any possible off the record discussions of the specifics of court exhibit 9 as opposed to any other jury note, the substance of the discussion, the substance of the jury note (assuming arguendo that Counsel were ever made aware of the contents of the jury note) and any possible suggested answers/responses that were offered. After over a decade a reconstruction hearing is impractical and extremely unreliable. This matter is unlike the reconstruction hearing where a Defendant was deprived of his right to be present during voir dire of prospective jurors. The People v. Andre Davidson, 653 N.Y.S.2d 254, 89 N.Y.2d 881, 675 N.E.2d 1206 (1996). Three of the prospective jurors were excused. Id. It would appear that the court believed that although the Defendant was deprived of a fundamental right, i.e., to be present at a critical stage of the criminal proceedings, that since three of the prospective jurors were excused that Defendant's exclusion did not affect the outcome. Id. The Court held that the Defendant's exclusion did not require reversal. The Court held a reconstruction hearing was proper. This matter is very different from Davidson, in that Mr. Morrison's case is not made moot by any subsequent decisions and/or actions of defense counsel. 9 The Defendant in Davidson was excluded from being present during voir dire questioning. Id. Three of the prospective jurors were dismissed as a direct result of decisions made by defense counsel. Id. Unlike, defense counsel in Davidson, defense counsel for Mr. Morrison had no opportunity to make any decision or take any action that would have made moot the Court's failure to read the jury note into the record. The record here does not establish that Mr. Morrison's defense counsel had an opportunity to respond or was provided any subsequent option which would have redressed the failure of the court to read the jury note into the record. For the reasons stated herein a reconstruction hearing would not comply with CPL §310.30 and O'Rama nor would it redress the failure to comply with the notice requirements and therefore should not be ordered. III. Conclusion We, therefore, respectfully request that this Court affirm the order that granted William Morrison a new trial. Respectfully Submitted, Mary R. Humphrey, Esq.