The People, Appellant,v.William Morrison, Respondent.BriefN.Y.March 20, 2018Submitted for Argument by Mary R. Humphrey, Esq. Ten minutes requested STATE OF NEW YORK COURT OF APPEALS __________________________________________________________________ The People of the State of New York, Appellant, vs. William Morrison, Defendant-Respondent. __________________________________________________________________ BRIEF FOR RESPONDENT No.: APL-2017-00105 Oneida County Indictment No.: 2006-00233 __________________________________________________________________ By: Mary R. Humphrey, Esq. Attorney for the Defendant-Respondent 4063 Oneida Street, Suite #6 New Hartford, NY 13413 Phone: (315) 732-4055 Telefax: (315) 793-1061 Completed: January 29, 2018 Eric T. Schneiderman, Attorney General of the State of New York Hannah Stith Long, Esq. Of Counsel Office of the New York State Attorney General 120 Broadway New York, NY 10271 Phone: (212) 416-8729 Telefax: (212) 416-8010 i TABLE OF CONTENTS Table of Citations………………………………….....……….............. ......... ii Issues Presented......................................................................................... iv Statement of Facts………………………………………………................. 1 Arguments………………………………………………………….............. 4 I. The trial court committed reversible error under CPL §310.30 and case law with the mishandling of the jury note marked as court exhibit 9................................ 4 II. Reconstruction of the Record is not a viable and/or a practical solution for this matter as reconstruction would not comply with the procedural and notice requirements of CPL § 310.30 and case law; and reconstruction is not warranted under case law......................... 17 III. A reconstruction hearing could, in fact, lead to the conclusion that a new trial should be ordered...................... 24 Conclusion……………………………………………………….................. 27 Certification of Compliance........................................................................ 28 ii TABLE OF CITATIONS Statute Crim. Proc. Law § 310.30.............4, 5, 6, 7, 10, 11, 12, 16, 17, 19, 21, 24, 25, 26 Case Law The People of the State of New York v. John O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159 (1991).... 4, 5, 6, 9, 10, 11, 12, 19, 20, 21, 26 The People of the State of New York v. Robin Kalinowski, 84 A.D.3d 1739, 922 N.Y.S.2d 704 (2011)........................................................7 The People of the State of New York v. Dale Kahley, 105 A.D.3d 1322, 963 N.Y.S.2d 487 (2013).....................................................7 The People of the State of New York v. Ronald Miller, 163 A.D.2d 491, 558 N.Y.S.2d 591 (1990).......................................................8 The People of the State of New York v. Julian Silva, 24 N.Y.3d 294, 22 N.E.3d 1022, 998 N.Y.S.2d 154 (2014)......................12, 13 The People of the State of New York v. Pamela Hanson, 24 N.Y.3d 294, 22 N.E.3d 1022, 998 N.Y.S.2d 154 (2014).....................12, 13 The People of the State of New York v. Ganesh Kisoon, 8 N.Y.3d 129, 863 N.E.2d 990, 831 N.Y.S.2d 738 (2007).......................13, 14 The People of the State of New York v. Leon Martin, III, 8 N.Y.3d 129, 863 N.E.2d 990, 831 N.Y.S.2d 738 (2007).......................14, 15 The People of the State of New York v. Angel L. Cruz, 14 N.Y.3d 814, 927 N.E.2d 542, 901 N.Y.S.2d 122 (2010).........15, 18, 25, 26 iii TABLE OF CITATIONS (Continues) The People of the State of New York v. Terrance L. Mack, 27 N.Y.3d 534, 55 N.E.3d 1041, 36 N.Y.S.3d 68 (2016)..............................16 The People of the State of New York v. Kenneth Nealon, 26 N.Y.3d 152, 41 N.E.3d 1130, 20 N.Y.S.3d 315 (2015)......................16, 20 The People of the State of New York v. Jamar Bethune, 29 N.Y.3d 539, 81 N.E.3d 835, 59 N.Y.S. 3d 301 (2017).............................19 The People of the State of New York v. Andre Davidson, 89 N.Y.2d 881, 675 N.E.2d 1206, 653 N.Y.S.2d 254 (1996).......19, 20, 24 26 The People of the State of New York v. Segundo Jose Velasquez, 1 N.Y.3d 44, 49, 801 N.E.2d 376, 769 N.Y.S.2d 156 (2003).......................22 The People of the State of New York v. Ronald Foster, 1 N.Y.3d 44, 49, 801 N.E.2d 376, 769 N.Y.S.2d 156 (2003).......................22 The People of the State of New York v. Anton Michalek, 82 N.Y.2d 906, 631 N.E.2d 114, 609 N.Y.S.2d 172 (1994).........................22 The People of the State of New York v. Jose Monclavo, 87 N.Y.2d 1029, 666 N.E.2d 175, 643 N.Y.S.2d 470 (1996).......................23 iv ISSUES PRESENTED I. The trial court committed reversible error under CPL §310.30 and case law with the mishandling of the jury note marked as court exhibit 9. II. Reconstruction of the Record is not a viable and/or a practical solution for this matter as reconstruction would not comply with the procedural and notice requirements of CPL § 310.30 and case law; and reconstruction is not warranted under case law. III. A reconstruction hearing could, in fact, lead to the conclusion that a new trial should be ordered. 1 STATEMENT OF FACTS The Defendant-Respondent, William Morrison, (hereinafter Mr. Morrison) was employed as a Certified Nurses' Assistant at Rome Memorial Hospital in May of 2006. Appendix (hereinafter "A") 228 - 229. On or about May 24, 2006 while Mr. Morrison was working in the nursing home section of Rome Memorial Hospital, a patient with dementia reported to an employee "I was raped". A 216. The employee then reported the statement to a supervisor. A 218. The patient was transferred from the nursing home section of Rome Memorial Hospital to the emergency room where she underwent a rape kit examination which revealed semen in her vagina. A 233, A 335 - 336. A superficial laceration of the inner labia believed to have been caused by a fingernail was observed. A 253. No bruises, abrasions, swelling or reddening was observed. A 253. The Rome Memorial Hospital and the Rome Police Department both conducted investigations. Mr. Morrison was developed as a suspect. A 384. Mr. Morrison was initially suspended and later terminated from his employment at Rome Memorial Hospital. 2 On June 5, 2007 Detectives Bates and Burns met with Mr. Morrison for the sole purpose of obtaining a DNA sample to compare with the results of the rape kit. A 385 - 386. During this meeting Mr. Morrison was offered a bottle of water which he accepted and consumed a portion of. A 387. The water bottle was retained by the detectives and sent for the DNA profile of Mr. Morrison. A 389 - 390. According to lab results the DNA sample from the water bottle matched the DNA in the rape kit. Mr. Morrison was arrested and on August 4, 2006 was arraigned before the Hon. Michael L. Dwyer on Indictment No. 2006-00233 charging him with the following four counts: Rape in the First Degree, Sexual Abuse in the First Degree, Endangering the Welfare of a Vulnerable Person, and Willful Violation of Health Laws. A 10. On September 6, 2006 Mr. Morrison rejected a pretrial offer and the court set motion dates. On September 20, 2006 the Court issued its decision on motions and set a Huntley Hearing date. Defense counsel requested a Mapp Hearing which request was denied. On September 29, 2006 a Huntley Hearing was held. After the hearing defense counsel was allowed to supplement her papers to request a Mapp Hearing. On October 13, 2006 defense counsel filed an affidavit regarding physical evidence obtained from Mr. Morrison. On October 26, 2006 the Court set a Mapp Hearing date. On November 8, 2006 a Mapp Hearing was 3 held. On November 27, 2006 the trial was adjourned before voir dire due to an important prosecution witness who suffered a heart attack and was unavailable to testify. On December 12, 2006 the defendant rejected a second plea offer and the matter was set down for trial on February 13, 2007. On February 13, 2007 the trial was again adjourned due to a severe snowstorm forecast and at least one witness was travelling from Albany. On February 26, 2007 the trial began and concluded on March 2, 2007 when the jury returned a verdict of guilty on the first three counts, the fourth count had not been submitted to the jury. A 622. On April 18, 2007 Mr. Morrison was sentenced to the maximum incarceration on all three counts. Mr. Morrison was sentenced to a determinate sentence of twenty-five years’ imprisonment and five years’ post-release supervision on count one, a determinate sentence of seven years’ imprisonment and three years' post-release supervision on count two, and an indeterminate sentence of one and one-third to four years’ imprisonment on count three with the sentences to run concurrently. A 9. On April 23, 2007, Mr. Morrison's trial counsel filed a Notice of Appeal. 4 ARGUMENTS I. The trial court committed reversible error under CPL §310.30 and case law with the mishandling of the jury note marked as court exhibit 9. Under Crim. Proc. Law § 310.30 when the jury sends a note to the court the court must give notice to both counsel and in the presence of the defendant must give the requested information or instruction as the court deems proper. Additionally, 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 counsel and defendant. The People of the State of New York v. John O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159 (1991). This gives both counsels an opportunity to suggest appropriate responses. Id. The court should apprise counsel of the substance of the responsive instructions it intends to give, so that counsels can seek any modifications they deem appropriate. Id. Finally, the jury should be returned to the courtroom and the note read into the record in the presence of the jury. Id. The trial court acknowledged receipt of court exhibit 9 and specifically states ". . . I will not read that into the record, . . .". A 607. The Court has clearly violated CPL § 310.30 and O'Rama in that the jury note was not read into the record proof that defense counsel was not given notice nor an opportunity to request any response she deemed appropriate. 5 Regarding court exhibit 9 as stated above the court stated on the record " . . . I will not read that into the record, . . .". A 607. The record does not reflect that counsels, in fact, actually saw court exhibit 9. A 607. The record does not reflect and no basis exists to believe that either counsel had actual knowledge of the specific contents of court exhibit 9 nor had an opportunity to respond to court exhibit 9. The court violated CPL § 310.30 and O'Rama regarding court exhibit 9. The Court of Appeals found reversible error in a matter where the trial court failed to disclose the jury note's contents before responding with an Allen charge. O'Rama. The court received a note from a single juror. Id. The court declined to read the contents into the record, but choose to summarize the substance of the note. Id. The court reasoned that reading the note would not serve any particular purpose. Id. The court further stated that he did not read the note because it indicated what the present posture was as far as votes are concerned. Id. The People argued that the court's obligation under the law was satisfied by counsel's knowledge of the juror note and knowing that the juror note's substance was continuing disagreement among the jurors. Id. The Court of Appeals was not persuaded by this argument. The Court of Appeals found that defense counsel was denied a meaningful opportunity to participate at a critical stage of the proceeding 6 thereby defendant was deprived of his fundamental right of effective representation by counsel. The reason for reading jury notes into the record is to establish the notice requirement in CPL § 310.30 and under O'Rama. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. O'Rama. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses." O'Rama at 278, 192. In this matter as in O'Rama the contents of a jury note was not read into the record. Therefore, the record does not establish notice nor that defense counsel had an opportunity to respond to the contents of the jury note. In acknowledging court exhibit 9 the court states " . . . but I'm sure you know what it says." This statement was made in the presence of the jury. A 607. It appears clear from the record that the court was addressing the jury, not counsels when he states ". . . but I'm sure you know what it says." Since the note was from the jury, the jury "knows" what the note says. As in O'Rama where the court committed reversible error by not reading a jury note into the record the trial court here committed reversible error by not reading court exhibit 9 into the record. 7 Preservation of this issue is not required because the court failed to comply with its core responsibilities under CPL § 310.30. The People of the State of New York v. Robin Kalinowski, 84 A.D.3d 1739, 922 N.Y.S.2d 704 (2011). The dissent appears to agree that this issue need not be preserved for appellate review. The People of the State of New York v. Dale Kahley, 105 A.D.3d 1322, 963 N.Y.S.2d 487 (2013). The dissent reasoned, the trial court's failure to provide counsel an opportunity to participate meaningfully in formulating its response constitutes a mode of proceedings error that requires reversal, even in the absence of preservation. Kahley at 1326, 491. The Fourth Department reversed a jury verdict of guilty and granted a new trial where the trial court did not comply with CPL § 310.30. Kalinowski. Prior to deliberations, the attorneys and the court agreed that if the jury requested certain items of evidence that the court would provide the jury with the evidence without first reassembling the parties in the courtroom. Id. The court received a jury note requesting further clarification of the path of the bullet. Id. The court did not read the jury note into the record, nor did it respond to the jury note on the record. Id. The Fourth Department found that it was clear the court failed to comply with the mandates of CPL § 310.30 reversed the matter and ordered a new trial. 8 This matter is the same as in Kalinowski in that the court failed to read a jury note into the record. Just as in Kalinoski this matter should be reversed and a new trial ordered. The Second Department reversed a conviction of burglary and ordered a new trial where the trial court refused defense counsel an opportunity to review a jury note. The People of the State of New York v. Ronald Miller, 163 A.D.2d 491, 558 N.Y.S.2d 591 (1990). The jury note stated that it had reached a deadlock on the first and second counts and a unanimous decision on the third and fourth counts. Id. The jury note also contained the jury's vote of eleven to one in favor of the guilty verdict on the first and second counts. Id. The court informed defense counsel that it would be inappropriate to put the jury note's contents on the record at that time. Id. The Second Department found the court abused its discretion in refusing to reveal the contents of the jury note to defense counsel. Id. In Miller the Second Department stated "[o]n occasion, the personal nature of a note or the risk of exacerbating tensions among jurors may make it appropriate to forego reading the text of the jury note to the entire jury." Miller at 592. In this matter court exhibit 9 did not contain any personal information or any information that would exacerbate tensions among the jurors. Court exhibit 9 did not indicate 9 the presence of any tensions among the jurors which would indicate the risk of causing and/or exacerbation juror's tensions, and that therefore, was not a reason to not read court exhibit 9 into the record. The trial court here offered no explanation as to why court exhibit 9 would not be read into the record. A 607 - 609. The trial court had no legal basis or good faith reason not to read court exhibit 9 into the record and was obligated under statute and case law to read court exhibit 9 into the record. Under CPL § 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. O'Rama, 78 N.Y.2d 270 (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. 10 CPL § 310.30 makes absolutely no provisions for exceptions of the notice requirement. O'Rama makes only very limited exceptions. The exceptions under O'Rama have allowed for a summary of the note to be put on the record. Or that the jury 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. 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 other jury notes if they could leave for the day and/or start at a specific time the next day. A 633, A 639. In court exhibit 4 the jury asks " . . . [c]an we come back at 9:00 a.m. tomorrow please". A 633. In court exhibit 10 the jury asks "[c]an we come back tomorrow at 10:00 a.m. . . . ". A 639. The trial Court had made it clear on the record what time the courthouse closes and had made it clear that the jury could request to leave for the day if deliberations continued late into the day. Since the court advised the jury of 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 11 specific request twice. The Court had always granted such a request and no reason existed to believe that the Court would not have summarily granted any other such 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/or 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. ". A 607. 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. 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 of the Fourth Department points out in its memorandum and order in this matter the note is ambiguous. A 4. Additionally, the majority points out the statement "[n]ot sure what to do" is a definite request for direction. A 4. Since the note is ambiguous, I am not sure that an Allen type instruction was appropriate or that it directly addressed court exhibit 9. In any 12 case, the argument of The People and the finding of the dissent that court exhibit 9 is ministerial, is speculative. Given the ambiguity of court exhibit 9 the argument and finding by the dissent is and can only be speculative. Two Defendants were granted new trials after a verdict of guilty because jury notes were not read into the record. The People of the State of New York v. Julian Silva, The People of the State of New York v. Pamela Hanson, 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 and Hanson 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 court stated that he has court exhibit 9 and will not read it into the record. A 607. Here, just as in Silva a jury note was not read into the record. Therefore, the record does not establish that either counsel 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. 13 In Hanson the jury sent out a series of notes. The record does not show that the court received the second and third jury notes. Id. The record did not show that the jury notes were shared with the parties before the defendant was convicted. Id. Under both Silva and Hanson, Mr. Morrison is entitled to a new trial. This matter is analogous to the matter where despite defense counsel’s failure to request to see a jury note or to object to the trial court’s supplemental charge this Court up held the order of a new trial. The People of the State of New York v. Ganesh Kisoon, The People of the State of New York v. Leon Martin, III, 8 N.Y.3d 129, 863 N.E.2d 990, 831 N.Y.S.2d 738 (2007). The trial court paraphrased the jury note’s sum and substance rather than read the jury note into the record verbatim. Id. The trial court did not read the jury note verbatim to counsels and defendant, or offer to let counsels read the note themselves. Id. The trial court then admonished the jury and sent them back to continue deliberations. Id. The defendant was convicted. Id. The Appellate Division reversed the conviction and ordered a new trial. Id. This Court affirmed the reversal and order of a new trial. The trial court in Kisoon did not follow the procedural standards set down in O’Rama. The trial court in Kisoon did not give counsels notice of the specific 14 contents of the jury note prior to calling the jury back into the courtroom and paraphrasing the note into the record. The trial court did not give counsels an opportunity to prepare and/or make suggestions related to the trial court’s response and/or possible responses. Id. Just as the trial court in Kisoon did not give the perquisite notice or opportunity to participate at a critical stage of the proceedings, the trial court for Mr. Williams deprived defense counsel of the same notice and opportunity to participate at a critical stage of the proceedings. Likewise, Mr. Morrison’s case is analogous to the matter where the trial court did not give notice of several jury notes and did not give counsels an opportunity to respond or make suggestions of responses. Martin, 8 N.Y.3d 129 (2007). The trial court due a clerical error did not read a jury note into the record. Id. The trial court received other jury notes which were responded to by the trial court without input from counsels. Id. The Appellate Division reversed the conviction and ordered a new trial. This Court affirmed the reversal and order of a new trial. Here, just as in Martin the trial court did not read the jury note into the record. The record here does not establish that counsels knew of the specific contents of court exhibit 9. Just as in Martin the record establishes that counsels 15 were not given an opportunity to suggest and/or propose responses. Just as this Court upheld the order of a new trial in Martin, this Court should uphold the order of the Fourth Department that granted Mr. Morrison a new trial. This Court found a mode of proceeding error and ordered a new trial where after a reconstruction hearing was held regarding a jury note requesting an exhibit not in evidence no one had any independent recollection of the jury note at issue. The People of the State of New York v. Angel L. Cruz, 14 N.Y.3d 814, 927 N.E.2d 542, 901 N.Y.S.2d 122 (2010). Initially the Appellate Division reserved decision and remitted to the trial court for a reconstruction hearing. Id. The reconstruction hearing revealed that no one had any recollection of the jury note that requested to see an exhibit not in evidence. Id. The court found "[n]othing in the record suggests that the judge received the jury note or discussed its contents with the parties” and ordered a new trial. Cruz at 815. Here just as in Cruz nothing in the record suggests the trial court discussed court exhibit 9 with counsels and the defendant. 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 respond the jury 16 returned with a verdict. The People of the State of New York 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 the 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. Id. 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 did not read court exhibit 9 into the record and therefore a mode of proceedings error did occur. No mode of proceedings error occurred in Mack. Also, unlike Mack as argued above a mode of proceedings error need not have been preserved. Mr. Morrison's claim under CPL § 310.30 and case law is a mode of proceedings error which did not need to be preserved. This matter is distinguishable from other matters where no mode of proceedings error occurred. No mode of proceedings error occurred where the court read a jury note into the record in the presence of the jury, counsels and the defendant. The People of the State of New York v. Kenneth Nealon, 26 N.Y.3d 152, 41 N.E.3d 1130, 20 N.Y.S.3d 315 (2015). The trial court, after off-the-record discussions, read jury notes into the record and provided responses. Id. Neither attorney objected. Id. The Appellate Division reversed the conviction and ordered 17 a new trial. Id. This Court reversed holding that counsels were given notice and an opportunity to participate at a critical stage of the proceedings, specifically, when the jury notes were read into the record. Mr. Morrison is entitled to a new trial under CPL §310.30 and case law as the notice and procedural requirements under same were not met. II. Reconstruction of the Record is not a viable and/or a practical solution for this matter as reconstruction would not comply with the procedural and notice requirements of CPL § 310.30 and case law; and reconstruction is not warranted under case law. A reconstruction hearing by definition would not comply with or give the notice requirements under CPL §310.30 and case law. 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. The trial court clearly stated on the record that he would not read court exhibit 9 into the record. A 607. Notice is required under CPL §310.30 and case law. 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. That 18 was over a decade ago. It is not practical that trial court or counsels will remember any possible off-the-record discussions or the specific contents of court exhibit 9 as opposed to any other jury note, the substance of the discussion, assuming arguendo that counsels were made aware of the contents of court exhibit 9 prior to the disclosure of same by the trial court on the record, and any possible suggested answers/responses that were offered. Counsel for The People suggests that court personnel can be a part of any possible reconstruction hearing. I believe that this suggestion would put Mr. Morrison at the mercy of people who possibly had strong feelings, hard feeling or biases about him and/or about his charges. The inclusion of court personnel in a possible reconstruction hearing would be extremely unfair and possibly prejudicial to Mr. Morrison. Also, after over a decade a reconstruction hearing is impractical and extremely unreliable. A trial court and counsel were unable to remember a jury note four years later. Cruz, 14 N.Y.3d 814 (2010). A reconstruction hearing was ordered. Id. Neither the trial court, counsels nor the court reporter could remember the specific jury note at issue. Id. Based on Cruz, it appears very unrealistic to expect the court, counsels or the court reporter to remember the specific handling of one jury note after over a decade in a matter where the trial court actually received twelve jury notes. A 632 - 643. 19 This Court has held that not every dispute about the record mandates a reconstruction hearing. The People of the State of New York v. Jamar Bethune, 29 N.Y.3d 539, 81 N.E.3d 835, 59 N.Y.S. 3d 301 (2017) quoting People v. Santorelli, 95 N.Y.2d 412, 424 (2000). The reconstruction hearing in Bethune was to correct the record, not to supplement or clarify the record. The issue in Bethune was whether the correct word for the record was actually "unintentional" or "intentional". The court reporter checked her notes and corrected the transcript to read "intentional" rather than "unintentional". Id. The issue in this matter is completely unlike the issue in Bethune the purpose of the record here was to establish the prerequisite notice requirement under CPL §310.30 and O'Rama. The trial court here did not read the jury note into the record, therefore, as the record indicates the notice requirement was not met. This matter is unlike the reconstruction hearing where a Defendant was deprived of his right to be present during voir dire of prospective jurors at the bench. The People of the State of New York v. Andre Davidson, 89 N.Y.2d 881, 675 N.E.2d 1206, 653 N.Y.S.2d 254 (1996). Three of the prospective jurors were excused. Id. It would appear that the court believed that although the defendant 20 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. Id. A reconstruction hearing was ordered. Id. This matter is very different from Davidson, in that Mr. Morrison's case was not made moot by any subsequent decisions and/or actions of defense counsel. The Defendant in Davidson was excluded from being present during voir dire questioning at the bench. 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 to take any subsequent action that would have made the trial court's failure to read the jury note into the record moot. The record here does not establish that Mr. Morrison's defense counsel had an opportunity to respond or was provided any subsequent action which would have redressed the failure of the court to read the jury note into the record. In Nealon this court held that we will not assume that an off-the-record discussion remedied the O’Rama violation related to notice and an opportunity to 21 participate at a critical stage in the proceeding. The record in Nealon indicated that off-the-record discussions were held by counsels with the court just prior to the court reading jury notes and responding to same on the record. The record here does not indicate that any off-the-record discussion was held with the court and counsels prior to the receipt of court exhibit 9. If this Court is not inclined to assume compliance with CPL § 310.30 and O’Rama where the record clearly indicates an off-the-record discussion was had just prior to receipt of jury notes, I do not believe this Court should assume compliance with O’Rama here where the record indicates that no such off-the-record discussion was held. The trial record here starts with the marking of court exhibits 8 and 9. A 607. The trial court then states "[t]he record should reflect that the jury has reentered the courtroom, . . . ". A 607. Prior to announcing that the jury had reentered the courtroom if, in fact, the trial court had had an off-the-record discussion with trial counsels the trial court would have stated that such off-the- record discussion was held. The trial court goes on to encourage the jury to continue deliberations or decide to resume deliberations the next day. A 607 - 609. The trial court then receives court exhibit 10 and paraphrases it into the record. A 609. A 639. The record here does not establish that trial counsels were made 22 aware of the specific contents of court exhibit 9 nor had an opportunity to make suggestions in response thereto. This Court held a reconstruction hearing may be appropriate where it is clear that a proceeding took place that was not transcribed. The People of the State of New York v. Segundo Jose Velasquez, The People of the State of New York v. Ronald Foster, 1 N.Y.3d 44, 49, 801 N.E.2d 376, 769 N.Y.S.2d 156 (2003). A reconstruction hearing can be ordered where it is clear that an unrecorded/untranscribed proceeding occurred. The record was clear that a Sandoval hearing was held, but not recorded. The People of the State of New York v. Anton Michalek, 82 N.Y.2d 906, 631 N.E.2d 114, 609 N.Y.S.2d 172 (1994). A reconstruction hearing was ordered. Id. The reconstruction hearing was ordered to determine if the defendant was present during the Sandoval hearing. Id. This Court ordered that if the reconstruction hearing determined that the defendant was not present that a new trial is ordered. Id. It was clear in Michalek that Sandoval hearings were held. However, here it is not clear and we have no indication that any off-the-record discussion was held related to court exhibit 9. The trial court in Mr. Morrison’s matter went back on the record after a recess announced it was in receipt of a jury note and that he would not read that into the record. A 607. We have no reason to believe that any off-the-record discussion occurred. This Court 23 goes on to say in Foster “[r]econstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant’s burden of showing that he was absent from a material state of the trial." Id at 49. At issue in Michalek was the defendant’s presence at a critical stage of the proceedings, a right that can be waived. At issue in Mr. Morrison’s matter is a mode of proceedings error, a right that cannot be waived. Unlike Mr. Morrison’s matter is the matter where the record is very clear that an earlier Sandoval hearing took place. The People of the State of New York v. Jose Monclavo, 87 N.Y.2d 1029, 666 N.E.2d 175, 643 N.Y.S.2d 470 (1996). On the record at a subsequent hearing defense counsel stated his belief as to what the trial court had ordered in a prior Sandoval hearing. Id. The trial court’s response indicated that clearly a prior Sandoval hearing had taken place. Id. This is not the situation we have with Mr. Morrison’s matter the record here does not indicate that a prior proceeding took place. In fact, the record does not suggest and we have no reason to believe that any proceeding took place that was not recorded or transcribed. 24 For the reasons stated herein a reconstruction hearing would not comply with CPL §310.30 and case law nor would it redress the failure to comply with the notice requirements and therefore should not be ordered. Further, the record does not indicate nor imply that an off-the-record discussion took place that would have indicated compliance with the notice requirement under CPL § 310.30 or case law. III. A reconstruction hearing could, in fact, lead to the conclusion that a new trial should be ordered. Just as orders of a reconstruction hearing lead this Court to order new trials, a reconstruction hearing here, would very likely only lead to the order of a new trial. A reconstruction hearing was held to determine if the defendant was present at the bench during conferences of prospective jurors. Davidson, 89 N.Y.2d 881 (1996). The reconstruction hearing lead to the conclusion that the defendant was not present at the bench during the conferences of the prospective jurors and a new trial was ordered. Id. At issue here is whether the trial court committed a mode of proceedings error. Mr. Morrison cannot and did not waive a mode of proceedings error. If, in 25 fact, a reconstruction hearing establishes what the transcript reveals, specifically, that defense counsel was not given notice of the contents of court exhibit 9, and had no opportunity to suggest responses under CPL § 310.30 and case law a new trial would be ordered. In Cruz a reconstruction hearing was ordered and lead to an order of a new trial. At the reconstruction hearing no one had any recollection of the jury note at issue. Id. Reconstruction hearings have lead to this Court's order of new trials. The reconstruction hearing in Davidson lead to exactly what the defendant alleged, that he was not present at the bench during some conference with some prospective jurors. The purpose of the reconstruction in Cruz was to determine the procedure related to a jury note. The reconstruction hearing determined that no one, including the trial court, had any recollection of the jury note. A new trial was ordered. In both Davidson and Cruz the ordered reconstruction hearings confirmed exactly what the defendants alleged in the appeals. Davidson alleged he was not present at the bench during some juror conferences. In Davidson the trial court 26 refused to record some portions of the voir dire proceedings. However, the reconstruction hearing confirmed what the defendant alleged in his appeal. In Cruz a CPL § 310.30 and O'Rama violation was alleged. The trial record established that the jury's note at issue was not read into the record. Again the reconstruction hearing confirmed the defendant's allegation in the appeal, as well as, what the trial record confirmed. Just as reconstruction hearings lead to the order of new trials in Davidson and Cruz a reconstruction here is very likely only to lead to the order of a new trial. Just as the trial record in Cruz revealed a violation of CPL § 310.30 and O'Rama the trial record here reveals the same violation when the Court stated on the record that I will not read [court exhibit 9] into the record. A 607. The trial record here reveals a clear violation of CPL § 310.30 and O'Rama, a reconstruction hearing is only likely to confirm that a violation has occurred and that a new trial should be ordered. 27 CONCLUSION For the foregoing reasons, we respectfully request that this Court affirm the decision and order of the Fourth Judicial Department which granted Mr. Morrison a new trial. RESPECTFULLY SUBMITTED Dated: January 29, 2018 ______________________________ Mary R. Humphrey, Esq. For Defendant-Respondent, William Morrison 4063 Oneida Street, Suite #6 New Hartford, NY 13413 Phone: (315) 732-4055 Cell: (315) 292-8808 Fax: (315) 793-1061 E-mail: mrhlawfirm@roadrunner.com 28 STATE OF NEW YORK COURT OF APPEALS __________________________________________________________________ The People of the State of New York, Appellant, Docket No.: KA 10-02201 vs. CERTIFICATE OF William Morrison, COMPLIANCE Defendant-Respondent. __________________________________________________________________ Mary R. Humphrey, Esq., attorney for the Defendant-Respondent and signatory on the Brief For Respondent hereby certifies that pursuant to §500.1(j) and §500.11(m) that the brief was prepared by using a word processing system using a serifed, proportionally-spaced typeface and 14-point type for text, no footnotes were included. The total word count according to the word processing software that was used to prepare the letter is 6,054. Dated: January 29, 2018 _______________________ Mary R. Humphrey, Esq. 4063 Oneida Street, Suite #6 New Hartford, NY 13413 Phone: (315) 732-4055 Fax: (315) 793-1061 E-mail: mrhlawfirm@roadrunner.com