The People, Appellant,v.William Morrison, Respondent.BriefN.Y.March 20, 2018No. APL-2017-00105 To be argued by: HANNAH STITH LONG 30 minutes requested Supreme Court, Oneida County, Indictment No. 233/2006 State of New York Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Appellant, – against – WILLIAM MORRISON, Defendant-Respondent. BRIEF FOR APPELLANT BARBARA D. UNDERWOOD Solicitor General NIKKI KOWALSKI Deputy Solicitor General for Criminal Matters HANNAH STITH LONG Assistant Attorney General of Counsel ERIC T. SCHNEIDERMAN Attorney General State of New York Attorney for Appellant 120 Broadway New York, NY 10271 (212) 416-8729 (212) 416-8010 (facsimile) Dated: December 20, 2017 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................ iii PRELIMINARY STATEMENT ........................................................ 1 QUESTIONS PRESENTED ............................................................ 4 STATEMENT OF THE CASE ......................................................... 5 A. Trial .................................................................................. 5 1. Evidence .................................................................... 5 2. Jury Instructions, Deliberations and Verdict .......... 6 B. Defendant’s Appeals on the Existing Incomplete Record ............................................................................. 13 ARGUMENT .................................................................................. 18 THE TRIAL COURT’S UNPROTESTED HANDLING OF THE JURY NOTE MARKED AS COURT EXHIBIT 9 DID NOT REQUIRE REVERSAL OF DEFENDANT’S CONVICTION .................................... 18 A. The Jury Note Was Not Subject to C.P.L. § 310.30 Because the Inquiry It Contained Was Ministerial. ..... 19 B. The County Court Gave Counsel Meaningful Notice of the Jury Note, Because It Gave Her the Information She Needed to Object to the Court’s Procedure and Identify Any Error in the Court’s Response in View of the Specific Contents of the Note. ............................................................................... 25 1. O’Rama errors are mode-of-proceedings errors only if counsel is deprived of the ability to object meaningfully to the court’s procedure or response. ................................................................. 27 ii TABLE OF CONTENTS (cont’d) Page 2. The County Court’s procedure enabled counsel to object meaningfully to the procedure and to the court’s response. ............................................... 32 a. The County Court enabled counsel to meaningfully object by explicitly advising counsel of its procedure, and giving her reason and opportunity to read the jury’s note herself. ..................................................... 33 b. Neither O’Rama nor its progeny require classification of the alternative procedure used by the county court as a mode-of- proceedings error. ............................................ 41 C. If the Existing Incomplete Record Does Not Establish Meaningful Notice of the Jury Note, Reconstruction is Appropriate. ...................................... 44 1. Reconstruction is appropriate because the record shows that material unrecorded proceedings occurred. ............................................. 45 2. This Court’s decisions in Silva and Walston do not bar reconstruction. ........................................... 50 a. A trial court’s neglect to make a contemporaneous record of O’Rama compliance does not bar reconstruction. ......... 51 b. Reconstruction was not appropriate in Silva and Walston because, unlike here, the records did not indicate that any material unrecorded proceedings took place. ................................................................ 56 CONCLUSION ............................................................................... 64 iii TABLE OF AUTHORITIES Cases Page(s) Allen v. United States, 164 U.S. 492 (1896) ...................................................................... 7 Fid. & Deposit Co. of Maryland v. Queens Cty. Trust Co., 226 N.Y. 225 (1919) ............................................................ 38 Long v. State, 7 N.Y.3d 269 (2006) ................................................................... 50 People ex rel. Baumgart v. Martin, 9 N.Y.2d 351 (1961) ................................................................... 52 People v. Agramonte, 87 N.Y.2d 765 (1996) ................................................................... 2 People v. Ahmed, 66 N.Y.2d 307 (1985) ................................................................. 54 People v. Alcide, 21 N.Y.3d 687 (2013) ................................................................. 54 People v. Alomar, 93 N.Y.2d 239 (1999) ........................................................... 55, 56 People v. Banch, 80 N.Y.2d 610 (1992) ................................................................. 39 People v. Bethune, 29 N.Y.3d 539 (2017) ........................................................... 53, 55 People v. Bonaparte, 78 N.Y.2d 26 (1991) ............................................................. 21, 23 People v. Camacho, 90 N.Y.2d 558 (1997) ................................................................. 57 iv TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Campbell, 48 A.D.3d 204 (1st Dep’t 2008) .................................................. 38 People v. Collins, 99 N.Y.2d 14 (2002) ................................................................... 23 People v. Conceicao, 26 N.Y.3d 375 (2015) ................................................................. 30 People v. Cruz, 14 N.Y.3d 814 (2010) ................................................................. 52 People v. Davidson, 89 N.Y.2d 881 (1996) ................................................................. 46 People v. Fenza, 198 A.D.2d 517 (2d Dep’t 1993) ................................................. 38 People v. Ferguson, 67 N.Y.2d 383 (1986) ................................................................. 52 People v. Garay, 25 N.Y.3d 62 (2015) ............................................................. 28, 29 People v. Glass, 43 N.Y.2d 283 (1977) ........................................................... 46, 48 People v. Hameed, 88 N.Y.2d 232 (1996) ................................................................. 21 People v. Harris, 76 N.Y.2d 810 (1990) ........................................................... 16, 23 People v. Harrison, 85 N.Y.2d 794 (1995) ......................................... 51, 52, 55, 56, 59 People v. Kadarko, 14 N.Y.3d 426 (2010) ............................................... 28, 31, 33, 34 v TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Kinchen, 60 N.Y.2d 772 (1983) ................................................................. 58 People v. Kisoon, 8 N.Y.3d 129 (2007) ................................................. 21, 42, 43, 54 People v. Klein, 7 N.Y.2d 264 (1959) ................................................................... 58 People v. Linares, 2 N.Y.3d 507 (2004) ................................................................... 54 People v. Lykes, 81 N.Y.2d 767 (1993) ................................................................. 16 People v. Mack, 27 N.Y.3d 534 (2016) ................................... 21, 27, 28, 30, 40, 43 People v. McLean, 15 N.Y.3d 117 (2010) ........................................................... 57, 58 People v. Mealer, 57 N.Y.2d 214 (1982) ................................................................. 53 People v. Mendez, 26 N.Y.3d 1004 (2015) ............................................................... 42 People v. Michalek, 82 N.Y.2d 906 (1994) ................................................................. 46 People v. Michalek, 82 N.Y.2d 906 (1994) ................................................................. 48 People v. Monclavo, 87 N.Y.2d 1029 (1996) ............................................................... 46 People v Morris, 27 N.Y.3d 1096 (2016) ............................................................... 30 vi TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Morrison, 148 A.D.3d 1707 (4th Dep’t 2017) ........................... 15, 16, 17, 56 People v. Morrison, 90 A.D.3d 1554 (4th Dep’t 2011) ............................................... 13 People v. Narayan, 54 N.Y.2d 106 (1981) ........................................................... 29, 30 People v. Neal, 268 A.D.2d 307 (1st Dep’t 2000) ................................................ 37 People v. Nealon, 26 N.Y.3d 152 (2015) .................... 2, 20, 27, 28, 30, 35, 37, 41, 62 People v. O’Rama, 78 N.Y.2d 270 (1991) ......................................................... passim People v. Ochoa, 14 N.Y.3d 180 (2010) ........................................................... 16, 21 People v. Odiat, 82 N.Y.2d 872 (1993) ................................................................. 52 People v. Parker, 60 N.Y.2d 714 (1983) ................................................................. 58 People v. Parris, 4 N.Y.3d 41 (2004) ............................................................... 49, 59 People v. Patterson, 39 N.Y.2d 288 (1976) ................................................................. 54 People v. Ramirez, 15 N.Y.3d 824 (2010) ..................................................... 28, 31, 35 People v. Ramos, 99 N.Y.2d 27 (2002) ................................................................... 57 vii TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Richetti, 302 N.Y. 290 (1951) ................................................................... 54 People v. Rivera, 39 N.Y.2d 519 (1976) ..................................................... 46, 49, 55 People v. Robinson, 36 N.Y.2d 224 (1975) ................................................................. 25 People v. Santorelli, 95 N.Y.2d 412 (2000) ................................................................. 52 People v. Silva, 24 N.Y.3d 294 (2014) .............................. 42, 44, 50, 51, 54, 56-62 People v. Smith, 27 N.Y.3d 643 (2016) ................................................................. 55 People v. Stewart, 81 N.Y.2d 877 (1993) ................................................................. 31 People v. Tabb, 13 N.Y.3d 852 (2009) ........................................................... 43, 61 People v. Umali, 10 N.Y.3d 417 (2008) ........................................................... 29, 30 People v. Velasquez, 1 N.Y.3d 44 (2003) ......................................................... 46, 52, 57 People v. Wallace, 27 N.Y.3d 1037 (2016) ............................................................... 20 People v. Walston, 23 N.Y.3d 986 (2014) ............................................... 42, 44, 57, 60 People v. Williams, 21 N.Y.3d 932 (2013) ................................................................. 31 viii TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Williams, 27 N.Y.3d 212 (2016) ..................................................... 30, 39, 40 People v. Yavru-Sakuk, 98 N.Y.2d 56 (2002) ................................................................... 49 Strickler v. Greene, 527 U.S. 263 (1999) .................................................................... 39 Statutes C.P.L. § 310.30 .............................................................................. passim § 460.10(3) .................................................................................. 55 § 470.05(2) .................................................................................. 25 § 470.35(2) .................................................................................... 2 Judiciary Law § 7-a ............................................................................................ 56 § 198 ........................................................................................... 53 § 290 ........................................................................................... 53 § 294 ........................................................................................... 53 § 295 ..................................................................................... 52, 58 Miscellaneous Authorities 1 N.Y. Evidence Proof of Cases § 2:32............................................ 50 81 N.Y. Jur. 2d §§ 5, 6, 8 ................................................................ 38 PRELIMINARY STATEMENT The People of the State of New York appeal from the Appellate Division’s order vacating defendant William Morrison’s convictions of Rape in the First Degree, Sexual Abuse in the First Degree, and Endangering the Welfare of a Vulnerable Elderly Person in the Second Degree. Defendant, while working as a nurse’s aide in 2006, forcibly raped Helen Smith,1 a 90-year-old Alzheimer’s patient. Defendant was convicted after a jury trial before the Oneida County Court and sentenced to 25 years’ imprisonment (Dwyer, J.) The Appellate Division, Fourth Department, originally affirmed the judgment, but later granted a new appeal and vacated the judgment on the ground that the County Court committed a mode-of-proceedings violation of C.P.L. § 310.30 by declining to read a jury note into the record. Dissenting Justice Erin M. Peradotto granted the People leave to appeal to this Court. The Court has jurisdiction to hear the appeal 1 Pseudonym, pursuant to Civil Rights Law § 50-b(1). 2 pursuant to C.P.L. § 470.35(2). See People v. Agramonte, 87 N.Y.2d 765, 769–70 (1996). When a deliberating jury reports a deadlock or otherwise requests substantive instruction, C.P.L. § 310.30, as interpreted in People v. O’Rama, 78 N.Y.2d 270 (1991), requires notice to counsel of the specific contents of the request. In most cases, the court’s duty is best discharged by marking the note as a court exhibit, reading it into the record so that counsel may be heard before the jury returns, reading the note in open court in the jury’s presence, and responding. O’Rama permits alternative procedures where necessary to preserve the integrity of the deliberative process. A mode-of-proceedings error—which does not require preservation— occurs only where counsel lacks notice of the request contents in time for effective objection to the court’s response. People v. Nealon, 26 N.Y.3d 152, 161 (2015). The Appellate Division’s conclusion that a mode-of- proceedings violation of § 310.30 occurred here is wrong for three reasons. First, the note was not subject to § 310.30, because it did 3 not announce a deadlock, and the only request it contained was ministerial. Second, the County Court gave defense counsel meaningful notice of the jury’s note through an alternative notice procedure designed to protect the jury from media influence. The court gave counsel timely opportunity to read the note herself and alerted her to the need to avail herself of that opportunity, which enabled counsel to object effectively to the court’s procedure and intelligently determine whether the court’s response was sufficient to protect her client’s interests. Third, if the existing record does not sufficiently show the requisite notice, the case should be remitted to County Court to reconstruct the court’s unrecorded discussion with counsel of the note response. This Court’s precedent does not require reversal of defendant’s conviction for an alleged error that likely did not occur, on an incomplete record that can readily be reconstructed. 4 QUESTIONS PRESENTED (1) Does Criminal Procedure Law § 310.30, as interpreted in People v. O’Rama, 78 N.Y.2d 270 (1991), apply to a deliberating jury’s inquiry about whether to break for the night? (2) Does a trial court commit a mode-of-proceedings error when it enables counsel to object effectively to the court’s response to a jury note by giving counsel reason and opportunity to read the note rather than reading it to her? (3) Where the record strongly suggests that meaningful notice of a jury note was given during an unrecorded proceeding, must a reviewing court presume that the trial court denied meaningful notice of the note, or may it direct reconstruction of the record to enable it to decide the issue on a record that reflects what actually happened? 5 STATEMENT OF THE CASE A. Trial 1. Evidence The People established the following facts through, among other things, defendant’s full confession. Defendant, tall and 240 pounds, worked as a certified nurse aide (A 228, 323-24, 487-88) at the nursing home that cared for Ms. Smith, a frail and tiny 90-year-old woman with debilitating dementia caused by Alzheimer’s disease (A 204). One night, when defendant was in charge of Smith, he decided to make her have sexual intercourse with him. He put her on her bed and removed her diaper. Scratching her inner labia with his fingernail and causing a bleeding laceration, he inserted his penis into her vagina and ejaculated inside her. As he covered Smith afterward, she said, “I’m going to tell on you.” Defendant left, trying not to think about what he had done to her. (A 215-22, 251-62, 273- 78, 484-86, 626-31.) Ms. Smith activated her call light and reported to responding staff, “I was raped” (A 215-218). She was agitated, trembling, 6 shaking, crying and repeating herself. She complained of pain between her legs. (A 226-33, 250, 265.) An examination revealed the presence of fresh semen in her vagina. (A 279-81, 326-40.) DNA testing confirmed that the source was defendant. (A 358-66.) Defendant later confessed to forcing Smith to have sexual intercourse with him. (A 626-27.) Upon his arrest, he told police that he expected to be imprisoned for a long time, and that, if he remained at liberty, he would commit the crime again (A 472-73).2 2. Jury Instructions, Deliberations and Verdict The Oneida County Court was determined to complete defendant’s trial during the single week in February that it had allotted, if possible. (A 38-39, 65, 200.) This was the court’s third attempt to move the case to trial. The first attempt ended in a mistrial. The second was derailed by a blizzard that closed the courthouse. (A 15-16, 65.) The court was concerned that the third effort could be undone by another storm (A 15, 65, 144, 608) or by exposure of the 2 Ms. Smith died in 2008. 7 unsequestered jury to influence from local media, which was covering the case (A 17, 32, 62, 81-82, 151, 198, 404, 588, 610). Many prospective jurors reported exposure to accounts of the case; some were dismissed as a result (A 49, 134-35, 137, 140-41, 177-78). The court was concerned that exposure to news reports published during the trial might cause jurors to question their own memories of the evidence presented (A 81-82). There was little room for delay, as the trial was expected to require three or four days (A 37-39, 65, 144), and the court had another trial scheduled for the following Monday (A 625). During jury selection, on Monday, the court delivered mild Allen-type instructions, see Allen v. United States, 164 U.S. 492, 501 (1896), regarding jurors’ deliberative duties. The court emphasized that jurors must “work together to form a unanimous verdict.” A juror may not be “close minded,” but must engage in discussion and debate, share his or her opinion and the basis for that opinion, and “listen to what [other jurors] have to say and the basis for their opinion.” (A 67-68.) Jurors, the court continued, often do not reach a unanimous verdict on the first vote, and must continue to talk 8 about the evidence and “work together to try and form the unanimous verdict.” (A 146.) During preliminary instructions, the court urged the jury to focus on the evidence to minimize the need for time-consuming read-back requests during deliberations (A 200). Before summations, the court warned counsel not to suggest that jurors should hold out or otherwise refuse to deliberate together (A 528). In its final charge, the court included additional Allen-type encouragement toward productive deliberation. The court reminded jurors that they must engage in discussion and reach a unanimous verdict (A 580-81). “It is your duty as jurors to make every honest and sincere effort to arrive at a unanimous verdict in accordance with the evidence,” the court instructed. “Each of you has a duty of giving the other jurors the benefit of your own opinion and the corresponding duty to give careful consideration to the views and opinions of your fellow jurors.” (A 580.) The court finished charging the jury at about 4:00 PM on Wednesday (A 582, 647). The court building ordinarily closed at 9 4:30 PM (A 582), and the court had previously promised jurors that they would leave by 4:30 PM “every day” (A 39). On Monday and Tuesday, the jury had indeed been excused at or before 4:30 PM (A 645-46). Therefore, the court on Wednesday offered the jury a choice: it could deliberate for 45 minutes, until 4:45 PM, or break for the night and continue the next morning (A 582). The court asked the jury to send a note at 4:30 PM, advising whether it anticipated reaching a verdict in the remaining time or whether it wished to break for the night (A 582-83). When 4:30 PM passed, the jury reported: We won’t be able to reach a verdict on all 3 counts today—Can we come Back at 9:00 AM tomorrow please (Court Ex. 4: A 633, 647.) The court read the note into the record, and instructed the jury to break until morning (A 588-89). On Thursday, the court addressed four jury notes requesting further legal instruction, exhibits or testimony read-backs. The court read each note into the record before responding. (Court Ex. 3: A 588, 591-96, 632; Court Ex. 5: A 597, 599-600, 634; Court Ex. 6: A 602, 635; Court Ex. 7: A 606, 636, 647.) 10 When deliberations continued past 4:30 PM that day, the jury—which had been working since 9:00 AM—sent two notes (A 607, 637-38, 647). The first, Court Exhibit 8, was a self-described status update, which revealed a partial verdict: We have made decision on the Third Count we are having hard time with 1 and 2 just giving you are [sic] Status. (A 637.) The second, Court Exhibit 9—the note upon which the Appellate Division based its reversal order—was a revised update, also revealing a partial verdict: We have arrived on decision on 2 and 3. but we have alot of work to do on #1. I dont see it being quick. Not sure what to do. We ars [sic] starting to make way. (A 638.) Although the court knew that the jury had been deliberating for only about a day and continued to be “conscientious[ly]” engaged in its deliberative duties (A 582, 589, 611), the prospect of the jury breaking for the night without a complete verdict decreased the chances of concluding the trial on schedule. Impending snowfall threatened jurors’ timely return to court on Friday (A 608), and the court had another obligation on Friday afternoon (A 621) and 11 another trial starting on Monday (A 625). Breaking then also carried the risk that jurors might be exposed to media coverage of the case or otherwise become unavailable. Jurors had committed to a three- or four-day trial (A 38), and the alternates had been dismissed (A 597). The record shows that the court had an unrecorded conference with counsel regarding the notes, as explained in the next section. On the record, the court marked the notes as Court Exhibits 8 and 9, respectively. (A 607, 637-38, 647.) Then, at 4:54 PM, with counsel present, the court recalled the jury. The court, which was concerned about the presence of reporters in the courtroom and was endeavoring to protect the unsequestered jury from media influence (A 404, 588, 610), stated, somewhat cryptically: I have received a note, which I have marked as Court Exhibit Number 9, and will not read that into the record, but I’m sure you know what it says.” (A 607, 647.) Defense counsel did not object to the court’s approach. Conveying appreciation for the jury’s conscientious hard work, the court acknowledged that they might need a rest after a full day of deliberation and that immediate adjournment was a 12 possibility (A 607-08). But, noting Friday’s anticipated transportation difficulties and the undesirability of a retrial, the court expressed hope that the jury would be willing “to keep working” (A 607-08). The court offered to accommodate another hour of deliberations if that might be productive, and delivered mild Allen-type encouragement to the jury to continue to discuss the matter in order to reach a unanimous verdict (A 608). The court left the choice to the jury. Defense counsel raised no objection to the court’s response. The jury responded that it wished to break and resume deliberations on Friday at 10:00 AM, by which time it hoped the weather to clear (Court Ex. 10: A 610, 639, 648). On Friday, the jury sent four notes containing requests for further legal instruction. The court read each request into the record before responding. (Court Ex. 11: A 611-13, 640; Court Ex. 12: A 614-15, 641; Court Exs. 13, 14: A 616-21, 642-43, 648.) Noting that jurors had served well beyond the time commitment originally asked of them, the court delivered additional Allen-type instructions, reminding them that failure to reach a unanimous 13 verdict would result in retrial and urging jurors to listen to each other with open minds (A 617-18). That afternoon, the jury reached a guilty verdict on all counts (A 622, 648). B. Defendant’s Appeals on the Existing Incomplete Record The Appellate Division initially affirmed the judgment. People v. Morrison, 90 A.D.3d 1554 (4th Dep’t 2011), lv. denied, 19 N.Y.3d 1028 (2012). Defendant subsequently sought a writ of error coram nobis, because appellate counsel had not argued that the trial court’s handling of the jury notes marked as Court Exhibits 8 and 9 violated C.P.L. § 310.30 and O’Rama. In response, the People pointed out that the existing record is incomplete with respect to the handling of those notes. On its face, the trial transcript reveals the occurrence of, but not the precise actions taken and statements made during, an unrecorded conference about Court Exhibit 9 that took place before the court addressed the note on the record. 14 The court’s practice, as it told the jury on the record, was to craft answers to substantive jury questions “together with the attorneys” (A 615). The trial transcript reflects that this collaborative process was often unrecorded. The court had answered three notes requesting substantive instruction before receiving Court Exhibits 8 and 9. On receiving the first request for legal definitions, the court read the request into the record and discussed with counsel on the record its intended response. (A 591- 92.) But, on receiving a subsequent request for further legal instruction, the court discussed the note and its intended response with counsel at an unrecorded bench conference, as revealed by counsel’s subsequent references to that conference. (A 597, 599- 600.) At the time the court went on the record to read another request for legal definitions and a re-reading of certain testimony, the definitions and requested portions of testimony had already been identified. (A 602.) When the court went on the record with respect to Court Exhibit 9, the court delivered a response conveying the preferences of the court and the attorneys “as a group” (A 608)—preferences 15 which evidently had been discussed outside the record. The judge, who ordinarily referred to himself as “I,” spoke as “we” (A 607-08). Therefore, in response to the coram nobis motion, the People submitted two affirmations regarding the unrecorded events preceding the court’s on-the-record response to Court Exhibit 9. The prosecutor affirmed that the court had handed the notes to both counsel before responding. The judge affirmed that his practice has always been to disclose all jury notes to counsel, without exception. He confirmed that he did not also read these particular two notes into the record because he did not wish to reveal the existence of the partial verdict to reporters in the courtroom. (Compendium of Cited Materials [“Comp.”] 265-69.) The Appellate Division granted a writ of error coram nobis. On defendant’s new appeal, over the dissent of Justice Peradotto, the Appellate Division vacated the judgment and ordered a new trial, holding that County Court committed a mode- of-proceedings error by declining to read Court Exhibit 9 into the record. People v. Morrison, 148 A.D.3d 1707 (4th Dep’t 2017). 16 Both majority and dissent agreed that § 310.30 did not apply to the status update designated Court Exhibit 8, as it contained no request for further information or instruction. 148 A.D.3d at 1708, 1711. That holding—which the People do not challenge—is also supported by the principle that a trial court’s failure to notify counsel of a jury request is not a mode-of-proceedings error when the jury subsequently clarifies the request and counsel receives notice of the clarified version, People v. Lykes, 81 N.Y.2d 767, 768- 70 (1993); see People v. Ochoa, 14 N.Y.3d 180, 184-85, 188 (2010); People v. Harris, 76 N.Y.2d 810, 811-12 (1990). Here, Court Exhibit 8 was superseded by the revised status update contained in Court Exhibit 9. The majority and dissent disagreed, however, on whether Court Exhibit 9 contained a substantive request subject to § 310.30, or a ministerial request. The majority recognized that “[n]ot sure what to do” could be interpreted as an inquiry about whether to continue deliberating or break for the night. Citing the trial court’s Allen-type response, though, the majority concluded that the phrase could and therefore must be interpreted as a request for 17 guidance in the face of difficulty reaching a unanimous verdict. Morrison, 148 A.D.3d at 1709. The dissent found that, in view of the circumstances, “[n]ot sure what to do” could only be reasonably interpreted as a scheduling inquiry. The jury’s experience to that point was that the court at the end of the day offered it a choice of continuing or breaking for the night based on the status of deliberations. Given the late hour and the amount of work remaining on the unresolved count, the jury was inquiring whether to continue deliberating or break for the night. Nothing in the record suggests that the jury had reached an impasse. To the contrary, the jury reported that it was making progress and intended to deliberate further on the unresolved count. 148 A.D.3d at 1712-13. The majority, having determined that Court Exhibit 9 was subject to § 310.30, held that reversal was required. Finding that the record failed to show compliance with O’Rama’s recommended procedures, the majority held that it could not rely on the presumption of regularity to conclude that County Court notified counsel of the contents of the note. Morrison, 148 A.D.3d at 1709. 18 In addition, the majority implicitly rejected the People’s argument that the unrecorded proceedings regarding the note should be reconstructed. ARGUMENT THE TRIAL COURT’S UNPROTESTED HANDLING OF THE JURY NOTE MARKED AS COURT EXHIBIT 9 DID NOT REQUIRE REVERSAL OF DEFENDANT’S CONVICTION The trial court’s handling of the jury note marked as Court Exhibit 9 (hereinafter “the jury note”), unprotested by defense counsel, did not require reversal of defendant’s conviction. Criminal Procedure Law § 310.30, as interpreted in People v. O’Rama, 78 N.Y.2d 270 (1991), requires a trial court to give counsel notice of the specific contents of a substantive jury request. Failure to do so is a mode-of-proceedings error, which requires reversal even in the absence of preservation. No mode-of-proceedings error occurred here, because § 310.30 and O’Rama did not apply to the jury note, as the request in the note was a ministerial scheduling inquiry. Even if the inquiry were substantive, no mode-of- proceedings error occurred, because the County Court enabled 19 counsel to object effectively to any error by giving counsel timely opportunity to read it, and alerting her to the need to do so. Should the Court determine that the existing record fails to rule out a mode-of-proceedings violation, the case should be remitted to County Court for reconstruction. The existing record reveals that, before the trial court addressed the jury note on the record, an unrecorded proceeding occurred during which the court likely disclosed the note to counsel. This Court’s precedent does not require reversal of defendant’s conviction for an alleged error that likely did not occur, on an incomplete record that can readily be reconstructed. A. The Jury Note Was Not Subject to C.P.L. § 310.30 Because the Inquiry It Contained Was Ministerial. The trial court was not required to give counsel notice under C.P.L. § 310.30 of the request in the jury note because it concerned a ministerial matter: an inquiry whether to suspend deliberations for the night. Criminal Procedure Law § 310.30 and O’Rama apply only to jury requests for substantive instruction or information. Hence, they did not apply to the jury note here, which consisted of 20 a status report and a ministerial inquiry about whether to break for the night. There is no support for the Appellate Division majority’s view that the note could reasonably be interpreted as a request for substantive instruction in the face of a potential deadlock. The County Court included mild Allen-type instructions in its response, not because it read the note as a deadlock announcement, but because it hoped to avoid the risks attending an overnight adjournment by encouraging the jury to complete its deliberations that night. By its terms, § 310.30 governs only jury requests for further instruction on “the law,” “the content or substance of any trial evidence,” or “any other matter pertinent to the jury’s consideration of the case.” In other words, the section applies only to substantive, not to ministerial, requests. People v. Wallace, 27 N.Y.3d 1037, 1039 (2016); Nealon, 26 N.Y.3d at 161. By extension, the procedures set forth in O’Rama, which interprets § 310.30, see O’Rama, 78 N.Y.2d at 276, apply only to “substantive” requests. Nealon, 26 N.Y.3d at 161 (quoting O’Rama with emphasis); accord Wallace, 27 N.Y.3d at 1039. 21 A deadlock announcement—which is effectively a request to be relieved from further consideration of the case, or at least for instruction on how to resolve an apparent deadlock—is a substantive request. See, e.g., People v. Kisoon, 8 N.Y.3d 129, 132, 134-35 (2007); O’Rama, 78 N.Y.2d at 275 n.2, 279-80. On the other hand, a request is ministerial if it is “wholly unrelated to the substantive legal or factual issues at trial.” People v. Hameed, 88 N.Y.2d 232, 241 (1996) (quoting Harris, 76 N.Y.2d at 812); see Ochoa, 14 N.Y.3d at 188. A request concerning “the logistics of the deliberative process” is ministerial. People v. Bonaparte, 78 N.Y.2d 26, 30 (1991). The timing of jury breaks, including overnight breaks, is a ministerial matter. Id.; see People v. Mack, 27 N.Y.3d 534, 537 n.1 (2016). Here, the implicit request for instruction contained in the jury’s note—“[n]ot sure what to do”—concerned ministerial matters. The surrounding circumstances, together with note’s text, establish that the jury was inquiring whether it should break for the night. 22 From the outset, jurors had learned to expect to break for the night by 4:30 PM every day. When deliberations began Wednesday afternoon, the court advised that they would be permitted to deliberate until 4:45 PM, but instructed them to inform the court if by 4:30 PM they did not believe they would reach a verdict that day; in that case, the court would permit them to break for the night. When 4:30 PM passed, they reported that they would not be able to reach a complete verdict that day, and wished to break for the night. When Thursday’s deliberations continued beyond 4:30 PM and jurors received no communication from the court, jurors did what the court had asked them to do at 4:30 PM the prior day: they sent a note reporting the status of their deliberations—“just giving you are [sic] status.” The jury informed the court that it had reached a verdict on one count but was having a hard time with the other two. Almost immediately thereafter, the jury sent the note in question, revising its report: The jury had now reached a verdict on two of the three counts and was “starting to make way” on the remaining count. But the jury still had “a lot of work to do” and 23 “d[idn’]t see it being quick.” Therefore, the jury was “[n]ot sure what to do” at that late hour. At no time did the jury ever report difficulty in discharging its deliberative duties, much less a deadlock. Nor did any individual juror ever report any such difficulty, ask to be excused, or complain about anything. To the contrary, when the jury sent the note, it had reached a unanimous verdict on two out of three counts after only about a day of deliberation, was starting to make progress on the remaining count, and was committed to doing “a lot of work” on that count. The trial court recognized, not that jurors had reached an impasse, but rather that they were working “very hard” and “very conscientious[ly].” Thus, the only reasonable interpretation of the record is that the jury’s expressed uncertainty about “what to do” concerned the logistics of the deliberative process: when to break for the night. See Bonaparte, 78 N.Y.2d at 30. The inquiry was “wholly unrelated to the substantive legal or factual issues at trial,” People v. Collins, 99 N.Y.2d 14, 17-18 (2002); Hameed, 88 N.Y.2d at 241; Harris, 76 24 N.Y.2d at 812, and certainly did not convey a deadlock. Section 310.30, therefore, did not apply. The Appellate Division majority erred in inferring that the trial judge perceived a deadlock because it included Allen-type instructions in its response to the jury’s ministerial inquiry about its overnight break. The instructions were part of the court’s ongoing efforts to ensure that the trial was completed as scheduled, despite weather- and media-related risks. The trial court gave Allen-type instructions repeatedly throughout the trial, including before deliberations commenced. The court did so twice during jury selection, once in its final charge, and twice during deliberations— and never in response to any report of juror deadlock or difficulty fulfilling deliberative obligations. The jury’s Thursday-night inquiry about breaking and saving “a lot of work” for Friday concerned the court, because an overnight break posed weather, media-taint and juror unavailability risks, and could potentially necessitate adjournment of the court’s Monday trial. Therefore, the court hoped that, with some Allen- 25 type encouragement, the jury would instead continue to verdict that night. The court’s effort to encourage completion of deliberations that night did not transform a productive, conscientious jury’s inquiry about when to take a break into a deadlock announcement. Because the jury inquired only about a ministerial matter, § 310.30 and O’Rama did not apply to the note, and any objection to the trial court’s handling of the note required preservation. Moreover, any objection to the unrequested Allen-type instruction in the court’s response required preservation like any other objection to an unrequested instruction. See C.P.L. § 470.05(2); People v. Robinson, 36 N.Y.2d 224, 228 (1975). B. The County Court Gave Counsel Meaningful Notice of the Jury Note, Because It Gave Her the Information She Needed to Object to the Court’s Procedure and Identify Any Error in the Court’s Response in View of the Specific Contents of the Note. Even if this Court determines that the jury’s inquiry was substantive, it should nonetheless reinstate defendant’s conviction, because defendant did not object to the County Court’s procedure 26 for responding to the inquiry, and the procedure does not fall within the very narrow class of errors known as mode-of-proceedings errors, which need not be preserved. In O’Rama, this Court held that a trial court’s duty to give counsel meaningful notice of a jury’s request for substantive instruction is typically best discharged by marking the note as a court exhibit and, before recalling the jury, reading it into the record so that counsel may be heard before the court responds. Departure from O’Rama’s standard procedure is not, per se, a mode-of-proceedings error. Such departure is a mode-of- proceedings error only where it deprives counsel of the information she needs to object to the court’s non-standard procedure, and to intelligently analyze the court’s response in view of the specific contents of the inquiry, so that any error may be cured. Here, the County Court did not commit a mode-of- proceedings error, because it gave counsel all the information she needed to object effectively to its procedure and response. The court advised counsel, who knew the gist of the jury’s inquiry and of the court’s intended response, that the note had been marked as a court 27 exhibit and would not be read into the record. This gave explicit notice of the court’s procedure, enabling her to object to the procedure. And it gave her reason to read the note, if she did not yet know its precise contents, and opportunity to ask to do so—thus giving her the ability to object intelligently to any error in the court’s response. 1. O’Rama errors are mode-of-proceedings errors only if counsel is deprived of the ability to object meaningfully to the court’s procedure or response. Because defendant did not object to the County Court’s procedure for responding to the jury’s inquiry in the note, he is entitled to relief only if the procedure falls within the very narrow class of errors known as mode-of-proceedings errors, which need not be preserved, cannot be waived and are never harmless. Mack, 27 N.Y.3d at 540; Nealon, 26 N.Y.3d at 158. Departure from O’Rama’s standard procedures is not, per se, a mode-of-proceedings error. Mack, 27 N.Y.3d at 544; Nealon, 26 N.Y.3d at 158. O’Rama error is a mode-of-proceedings error when the court’s departure from the standard process for responding to a 28 substantive jury inquiry deprives counsel of information necessary to render effective assistance during supplemental jury instructions, a critical stage of the proceedings. 78 N.Y.2d at 277, 280 n.3; see Mack, 27 N.Y.3d at 540-41 (2016). A mode-of- proceedings error thus occurs when counsel is deprived of the information she needs to object effectively to the court’s non- standard procedure, Mack, 27 N.Y.3d at 541, 543; Nealon, 26 N.Y.3d at 162, or to object effectively to the court’s responsive instructions, in view of the specific contents of the inquiry, Mack, 27 N.Y.3d at 541-42; Nealon, 26 N.Y.3d at 157, 159, 162; People v. Ramirez, 15 N.Y.3d 824, 826 (2010); People v. Kadarko, 14 N.Y.3d 426, 429-30 (2010). The same crucial distinction—whether or not the trial court’s procedure enables counsel to object effectively—also defines the scope of the mode-of-proceedings error category for other types of alleged trial court interference with effective assistance of counsel. In People v. Garay, 25 N.Y.3d 62, 65-66 (2015), the question was whether the trial court had committed a mode-of-proceedings violation of the defendant’s constitutional right to counsel by, in 29 counsel’s absence, hearing argument and making a decision to discharge a sick sitting juror. The Court determined that no mode- of-proceedings error occurred, because counsel had “the time and the opportunity to make his position known” when the trial court, after counsel’s arrival, executed its earlier ex parte decision by directing an alternate juror to take the sick juror’s seat. Id. at 68. The Court relied on “the commonsense principle” that preservation is required if counsel is present to object, and objection would afford the trial court opportunity to cure a violation of the defendant’s right to counsel. Id. at 67. The Court relied on the same principle in People v. Umali, 10 N.Y.3d 417, 423 (2008), and People v. Narayan, 54 N.Y.2d 106, 112- 13 (1981). In each case, the trial court infringed on the defendant’s constitutional right to effective assistance of counsel at trial by banning attorney-client communication during recesses or adjourn- ments. Umali, 10 N.Y.3d at 422-24; Narayan, 54 N.Y.2d at 110, 112. The Court determined that preservation was required, because, in each case, counsel had the ability to object so as to enable the 30 trial court to rectify the violation of the defendant’s right to counsel. Umali, 10 N.Y.3d at 423; Narayan, 54 N.Y.2d at 112-13. Moreover, as the Court observed in Mack, the same dividing line—whether effective objection is possible—applies to constitu- tional errors “arguably more important to the validity of the criminal process” than O’Rama violations, such as denial of the right to trial in toto. Mack, 27 N.Y.3d at 541, 542 n.3; compare People v. Williams, 27 N.Y.3d 212, 220-23 (2016) (objection feasible; preservation required), with People v. Conceicao, 26 N.Y.3d 375, 381 (2015) (objection infeasible; preservation unnecessary). Accordingly, the Court has rejected mode-of-proceedings error claims where a trial court has violated O’Rama by apprising counsel of the contents of a note for the first time when it reads the note to the jury in open court immediately before responding. Under these circumstances, counsel can object to the court’s procedure, as she knows that she has not been heard as to the response. And she can object intelligently to the court’s response, as she knows the content of the note and hears the court’s response. Nealon, 26 N.Y.3d at 162; see People v Morris, 27 N.Y.3d 1096, 1098 31 (2016); People v. Williams, 21 N.Y.3d 932, 934-35 (2013); Ramirez, 15 N.Y.3d at 826; People v. Stewart, 81 N.Y.2d 877, 878-79 (1993). Likewise, the Court rejected a mode-of-proceedings error claim where the trial court violated O’Rama by withholding from counsel a portion of a note until after the court had responded and the jury had resumed deliberations. In People v. Kadarko, after multiple deadlock notes from the jury, the trial court received a note that the jury was still divided and that on most counts there was only one holdout. Id. 14 N.Y.3d at 428; Comp. 63-64. The court explicitly declined to disclose the vote splits to counsel before it responded to the note, and corrected itself only after it delivered an Allen charge and deliberations resumed. Kadarko, 14 N.Y.3d at 428, 430. This Court determined that no mode-of-proceedings error had occurred, because the trial court was explicit about its procedure, and counsel could have objected either before or after the court disclosed the full note. Id. at 429-30. 32 2. The County Court’s procedure enabled counsel to object meaningfully to the procedure and to the court’s response. The County Court did not commit a mode-of-proceedings error in responding to Court Exhibit 9. Counsel had the information needed to object effectively to the court’s departure from standard O’Rama procedures. She knew the gist of the note, whether or not she had read it, and that the court would not read it into the record. In addition, counsel had the information needed to identify any error in the court’s response. The court’s announcement that it would not read the note into the record put counsel on notice of her need to learn the precise contents of the note if she did not already know them, so that she could identify any error in the court’s response. And, by announcing that it had made the note a part of the record by marking the note as a court exhibit, the court alerted counsel that the note was available for her inspection. The notice procedure adopted by the court comports with long established concepts of meaningful notice. None of this Court’s O’Rama decisions required classification of the County Court’s procedure as a mode-of-proceedings error. 33 a. The County Court enabled counsel to meaningfully object by explicitly advising counsel of its procedure, and giving her reason and opportunity to read the jury’s note herself. First, counsel had all the information she needed to object to the court’s procedure. The record here shows that, as in Kadarko, 14 N.Y.3d at 428-29, the trial court, before responding to the note, explicitly informed counsel of its intended procedure. The court stated: “I have received a note, which I have marked as Court Exhibit Number 9, and I will not read that into the record[.]” Also as in Kadarko, the record here shows that, at the time the court responded to the note, counsel was aware of the general topic of the note contents, even if she had not heard or read the contents verbatim. Indeed, in this case, the record reflects that counsel was aware of the main elements of the jury’s inquiry. In responding to the note, the court advised the jury that, in view of anticipated transportation difficulties due to overnight inclement weather, counsel and the court “as a group” preferred that the jury continue its after-hours deliberations for up to another hour in an effort to reach a verdict that night, rather than break for the night 34 immediately and resume in the morning. (A 608-09.) The court advised that it and counsel (“we”) hoped that the jury would reach a unanimous verdict and that a retrial would not be necessary. (A 607-08.) The fact that counsel expressed these preferences to the court reveals that counsel knew that the note conveyed that the jury still had a significant amount of work to do and was inquiring about breaking for the night. Also, as in Kadarko, counsel knew at the time of the court’s response whether she had read, or been read, the note and whether she had been heard in regard to the court’s response. Thus, as in Kadarko, counsel had all the information she needed to object to the court’s procedure, even without knowing the specific contents of the note. See Kadarko, 14 N.Y.3d at 429 (holding that counsel could object “either before or after the entire contents of the note were revealed”). Second, the record shows that counsel had adequate notice of the specific contents of the jury note, regardless of whether she had seen or heard those specific contents during the unrecorded proceeding that took place before the court addressed the note on 35 the record. The court gave her the means of apprising herself of the contents, under circumstances where she reasonably could be expected to recognize her need to do so to identify any error in the court’s response in time for the court to cure it. O’Rama instructs that there is no single mandated means for providing the requisite meaningful notice of the contents of a note. A trial court may read the note to counsel, O’Rama, 78 N.Y.2d at 277-78, show the note to counsel, Id. at 279; Nealon, 26 N.Y.3d at 159; Ramirez, 15 N.Y.3d 825-26, or, in special circumstances, employ other procedures equally conducive to counsel’s participation, O’Rama, 78 N.Y.2d at 278. This Court has repeatedly cautioned that the purpose of its decision in O’Rama was not to mandate adherence to particular procedures, but to maximize meaningful participation by counsel. Nealon, 26 N.Y.3d at 158. Here, the County Court chose a procedure designed to avoid revealing the fact of the jury’s partial verdict in open court and exacerbating media attention that could taint the deliberative process. In so doing, the court exercised its discretion under O’Rama, 78 N.Y.2d at 278, not to read the note into the record but 36 to adopt an alternative procedure equally conducive to counsel’s participation. The record shows that the court’s procedure was equally conducive to counsel’s participation, because it gave counsel both reason and opportunity to read the note herself, at a time when the court could avoid or cure any error in its response that counsel might identify. Counsel had sufficient information for her to recognize that reading the note herself was necessary (if she had not seen it at the unrecorded conference) to identify any error in the court’s response. As discussed above, at the time that the court addressed the note on the record, counsel was aware of at least the gist of the jury’s inquiry, that the jury still had significant work to do and was inquiring about breaking for the night, and that the court intended to offer extended deliberations that night and deliver Allen-type instructions. When she heard that the court would not read the note into the record, she knew that, in order to identify effectively any deficiency in the court’s response, she needed to read the note herself. 37 The court’s procedure also gave counsel the opportunity to read the note herself. The court made it available to her for that purpose by alerting her that the note was marked as a court exhibit, and by doing nothing to prevent or deter her from inspecting the note. Thus, as in Nealon, where the court read the note into the record immediately before responding, counsel here could have objected intelligently in time for the court to avoid or cure any error in its response. Indeed, the County Court’s notice procedure was superior to the notice procedure that the trial court employed in Kadarko where counsel had no opportunity to learn the specific contents of the note until after the jury had resumed deliberations based on the court’s response. Thus, measured by the purposes of the notice requirement identified in O’Rama and its progeny, notice in the form of information that gives counsel reason and opportunity to timely read a note herself is just as meaningful as notice that consists of timely reading or showing the note to counsel. Cf. People v. Neal, 268 A.D.2d 307, 307 (1st Dep’t 2000) (finding meaningful notice 38 where the court did not read part of a note, but counsel knew of the note’s existence and “was not deprived of an opportunity to read it”); People v. Fenza, 198 A.D.2d 517, 518 (2d Dep’t 1993) (finding meaningful notice where counsel had “an opportunity to ask to see the note after having been informed of its existence”); see also People v. Campbell, 48 A.D.3d 204, 205 (1st Dep’t 2008) (finding meaningful notice, assuming that counsel was “afforded the opportunity to read the note”). This conclusion is also supported by the language of § 310.30, long-established concepts of notice, and the purposes of the preservation rule. Section 310.30 requires that the court give counsel “notice” of the jury’s inquiry, not that the court “impart to counsel instantaneous actual knowledge” of the inquiry. Under well-established concepts of notice, giving counsel the means of knowledge under circumstances where reasonable counsel would use those means to obtain knowledge, constitutes actual notice. See Fid. & Deposit Co. of Maryland v. Queens Cty. Trust Co., 226 N.Y. 225, 232–33 (1919); 81 N.Y. Jur. 2d §§ 5, 6, 8. 39 By analogy, a prosecutor fulfills the federal and state constitutional duty to disclose to defense counsel material exculpatory information or witness’ prior statements by advising defense counsel that documents containing such information are available to her pursuant to open file discovery. See Strickler v. Greene, 527 U.S. 263, 283 n.23 (1999); People v. Banch, 80 N.Y.2d 610, 621 (1992). This Court would not entertain a claim that a new trial was required because the prosecutor failed to read the documents to counsel. Nor should the Court credit an analogous claim here. As this Court explained in People v. Williams, the Court has “never held . . . that the defendant’s lack of actual knowledge that an error has occurred, despite an opportunity to learn of the error, may excuse the defendant from having to preserve his or her claim via objection.” 27 N.Y.3d at 223 n.2 (original emphasis). An actual knowledge requirement “would swallow the preservation doctrine 40 whole, thereby eviscerating an essential limit on [the Court’s] jurisdiction.” Id.3 An actual knowledge prerequisite for application of the preservation rule would also undermine the preservation rule by rewarding gamesmanship. The promise of automatic reversal on appeal would encourage counsel to decline to take reasonable measures to learn, and to resist the court’s efforts to disclose, the contents of a jury note. Mack, 27 N.Y.3d at 543-44. In view of such factors as the strength of the People’s case, the nature of prior jury notes, and the feasibility of retrial years later, counsel might reasonably believe that the marginal benefit of her informed analysis of the court’s response to a jury note would be of less value to her client than automatic reversal on appeal. Thus, an actual 3 In Williams, the Court assumed that the defendant’s guilty plea was involuntarily entered in reliance on a mistaken and unfulfillable promise of an illegally lenient sentence. Because counsel had opportunity to inquire into and learn of the law and the facts supporting his client’s involuntariness claim, the Court held that preservation was required. Williams, 27 N.Y.3d at 222-23. Here, similarly, counsel had the opportunity to inquire into and learn of the content of the note in time to object to any error in the court’s response. 41 knowledge requirement would have “precisely the opposite effect from what this Court intended in O’Rama: ‘to maximize participation by counsel.’” Nealon, 26 N.Y.3d at 162. Here, counsel chose not to object, either because she was satisfied with the court’s procedure and response or because she was making a tactical choice not to give the court an opportunity to correct a possible O’Rama violation. Either way, no mode-of- proceedings error occurred, because the court’s procedure gave counsel reason and opportunity to read the note, if she did not already know its contents, and thus enabled her to object effectively to the court’s procedure and response. b. Neither O’Rama nor its progeny require classification of the alternative procedure used by the county court as a mode-of- proceedings error. Neither O’Rama, nor any of its progeny, require expansion of the mode-of-proceedings error category to include a case where, as here, a departure from standard O’Rama procedure was made clear on the record, did not prevent counsel from knowing the contents of 42 the note, and thus did not prevent her from participating meaningfully in the critical supplemental instruction stage of trial. The Court has recognized mode-of-proceedings errors only where the trial court prevented counsel from objecting effectively to the court’s procedure and/or evaluating the court’s response in view of the specific contents of a note. Specifically, the Court has recognized mode-of-proceedings errors where, unlike here, the court failed to disclose the existence of the note, affirmatively denied counsel disclosure of the contents of a note, or mislead counsel regarding its procedure or the content of the note. In People v. Mendez, 26 N.Y.3d 1004, 1005 (2015), People v. Silva, 24 N.Y.3d 294, 297 (2014), and People v. Martin, 8 N.Y.3d 129, 133 (2007), the trial court failed to mention to counsel the existence of a note containing a substantive request. Counsel could not object to the handling of, or lack of response to, a note of which she was unaware. In People v. Walston, 23 N.Y.3d 986, 988 (2014), and People v. Kisoon, 8 N.Y.3d 129, 132 (2007), the court purported to read the contents of a note into the record but actually omitted significant 43 parts. By misleading counsel regarding the court’s procedure and the note’s contents, the court prevented her from intelligently objecting to the procedure or participating in the court’s response. Counsel could not object to an error of which she was unaware. Mack, 27 N.Y.3d at 541; see Kisoon, 8 N.Y.3d 129, 132 (2007).4 In O’Rama itself, the trial court offered an inaccurate 7-word summary of a 153-word deadlock note, sealed the note in an envelope and refused to disclose it to counsel, even after the court responded. 78 N.Y.2d at 275-76; Comp. 7. By refusing to show or read the note to counsel, the court prevented counsel from 4 The Court’s brief decision in People v. Tabb, 13 N.Y.3d 852 (2009), a case decided pursuant to 22 N.Y.C.R.R. § 500.11, does not elucidate the Court’s reasoning. But the facts of the case are consistent with the principle that keeping counsel ignorant as to the court’s procedure deprives counsel of the ability object effectively to the procedure or the court’s response. In Tabb, shortly after answering a substantive jury note from the jury and then four substantive oral requests by individual jurors, stated on the record that it was responding to an unspecified jury “request.” The court did not advise counsel that the “request” was actually a jury note marked as a court exhibit, which counsel might then have asked to see. And the court did not otherwise disclose to counsel the note’s contents. Comp. 14-21. The court’s opaque procedure prevented counsel from objecting intelligently to either procedure or response. 44 meaningfully participating in the court’s response. 78 N.Y.2d at 279. In sum, none of this Court’s jury note decisions requires automatic reversal where, as here, the court did not prevent counsel from meaningfully participating in its response, as counsel was fully aware of the court’s non-standard procedures, and counsel had reason and opportunity to read the note herself in time for the court to cure any error counsel might identify. C. If the Existing Incomplete Record Does Not Establish Meaningful Notice of the Jury Note, Reconstruction is Appropriate. If, contrary to the arguments above, this Court were to conclude that the jury note contained a substantive request and that the existing record does not establish meaningful notice, the case should be remitted for reconstruction of the court’s unrecorded discussion with counsel about the note response. It is well established that remittal for reconstruction is appropriate where, as here, important trial proceedings were not recorded and reconstruction may be possible. This Court’s decisions in Walston, 23 N.Y.3d at 990, and Silva, 24 N.Y.3d at 300, did not, sub silentio, 45 overrule decades of precedent favoring resolution of claims on a complete record, and authorizing reconstruction when material proceedings are absent from the record. Neither case holds that a trial court’s failure to fulfill its affirmative duty to make a record of O’Rama compliance—unlike such a failure by the trial court at any other critical stage of trial—is itself a mode-of-proceedings error. Rather, the Court did not consider reconstruction, because there was no indication in those cases that there were any material unrecorded proceedings to reconstruct. No good reason exists to presume error where, as here, there is ample evidence that the court disclosed the note’s contents to counsel in a proceeding that can readily be reconstructed. 1. Reconstruction is appropriate because the record shows that material unrecorded proceedings occurred. Remittal for reconstruction is warranted here because the existing record strongly supports the inference that counsel received meaningful notice of the jury note’s contents at an unrecorded proceeding before the court responded to the jury. 46 Remittal for reconstruction is appropriate where important trial proceedings were not recorded or otherwise fail to appear in the record, see People v. Velasquez, 1 N.Y.3d 44, 49 (2003); People v. Davidson, 89 N.Y.2d 881, 882 (1996); People v. Monclavo, 87 N.Y.2d 1029, 1031 (1996); People v. Michalek, 82 N.Y.2d 906, 907 (1994), unless reconstruction has been shown impossible, People v. Rivera, 39 N.Y.2d 519, 523-25 (1976); People v. Glass, 43 N.Y.2d 283, 286 (1977). Here, the record of the court’s handling of prior jury notes, together with the phrasing of its response to the note marked as Court Exhibit 9, show that the court held an unrecorded proceeding with counsel about the note before addressing the note on the record. The court’s practice, as it told the jury, was to craft answers to substantive jury questions “together with the attorneys” (A 615). The record of the court’s handling of prior jury notes shows that this collaborative process was largely unrecorded. The court had answered three notes requesting substantive instruction before it received the note marked as Court Exhibit 9. On receiving the first 47 such request, the court read it into the record and discussed with counsel on the record its intended response. (A 591-92.) But, upon receiving the second note requesting legal instruction, the court discussed the note and its intended response with counsel at an unrecorded bench conference, as revealed by counsel’s subsequent references to that conference. (A 597, 599-600.) The note containing the third request for legal instruction also contained requests for a read-back of the parts of testimony pertaining to four specified subjects. By the time the court went on the record and read the note in the presence of the jury, the requested portions of testimony had already been identified—revealing that an unrecorded discussion must have occurred before the court went on the record. (A 602.) When the court went on the record to respond to the note marked as Court Exhibit 9, it referred to a prior unrecorded discussion with counsel about that particular note. The court characterized its response as reflecting the views of the court and the attorneys “as a group” (A 608). The judge, who ordinarily 48 referred to himself as “I,” spoke as “we” (A 607-08). Counsel did not object. Thus, the record demonstrates that unrecorded proceedings occurred, which, if reconstructed, would reveal whether the court provided meaningful notice of the note. Defendant has never claimed otherwise. Nothing suggests that reconstruction of the relevant unrecorded events or discussions preceding the court’s response to the note is impossible. In People v. Glass, the Court held that reconstruction of the court’s jury charge could not be assumed impossible, even though the existence of harmful error might depend on the exact phrasing employed in the court’s instructions. Glass, 43 N.Y.2d at 287. In People v. Michalek, the Court ordered reconstruction of whether the defendant was present at a hearing five years earlier. 82 N.Y.2d 906 (1994), on remand, 218 A.D.2d 750, 751 (2d Dep’t 1995). In People v. Rivera, this Court found reconstruction of an entire trial record impossible 23 years after the trial—but only after a reconstruction hearing and proof that the defendant suffered complete retrograde amnesia, defense counsel 49 was disbarred and could not be located, the prosecutor’s memory was impaired by a stroke, and the trial judge was dead. 39 N.Y.2d at 522, 524. Here, defendant has not established that everyone present at trial is either unwilling or incapable of assisting in reconstruction of the record. See People v. Yavru-Sakuk, 98 N.Y.2d 56 (2002) (quoting Glass, 43 N.Y.2d at 286).5 It is plausible that the final events of a sensational trial would be remembered by those who participated in them. Indeed, the record of defendant’s coram nobis motion shows that both the trial prosecutor and the trial judge are willing and capable of aiding in reconstruction of the record concerning the handling of the note.6 5 Defendant has made no effort to fulfill his obligation to take steps to maximize the likelihood that the unrecorded proceedings can be reconstructed. See People v. Parris, 4 N.Y.3d 41, 48 (2004). In fact, he has opposed the People’s efforts in that regard, which suggests that he thinks a reconstructed record would not support his claim. See id. 6 The prosecutor submitted an affirmation stating that the trial court handed the note marked as Court Exhibit 9 to both counsel before responding. Comp. 266. The judge submitted an affirmation explaining that his practice has always been to disclose all jury notes to counsel, without exception. Comp. 268. While 50 There may be no need for anyone to recall whether the court read the note to counsel verbatim. The trial judge, the prosecutor, defense counsel, court personnel or defendant himself may be able to recall whether the court handed counsel the note during the unrecorded proceeding. The judge and court personnel may also recall whether the court followed a practice of always handing jury notes to counsel. Therefore, should this Court determine that the existing record fails to show meaningful notice of a substantive jury request, remittal for reconstruction of the record is appropriate. 2. This Court’s decisions in Silva and Walston do not bar reconstruction. Reconstruction in the instant case is consistent with the principle, recognized in Silva, 24 N.Y.3d at 300, that a trial court these recollections are not part of the record on appeal and cannot be considered for their truth, this Court, in considering whether reconstruction has been proven impossible, may take judicial notice of the undisputed fact that both the judge and the prosecutor submitted affirmations detailing facts relevant to the question of whether the court disclosed the notes. See Long v. State, 7 N.Y.3d 269, 275 (2006); 1 N.Y. Evidence Proof of Cases § 2:32. 51 has an “affirmative obligation” to create a contemporaneous record of compliance with § 310.30 and O’Rama. A trial court’s failure to create a contemporaneous record of giving meaningful notice is not itself a mode-of-proceedings error; such a record-making oversight may be cured by reconstruction of the relevant unrecorded events. The reason that this Court did not remit for reconstruction in Silva and Walston is that, unlike in this case, there was no indication in the records that unrecorded proceedings took place during which the trial courts might have complied with O’Rama. a. A trial court’s neglect to make a contemporaneous record of O’Rama compliance does not bar reconstruction. This Court’s requirement in Silva and Walston that a trial court make a record of O’Rama compliance simply mandates adherence to general record-making requirements, which this Court has consistently viewed as allowing reconstruction in appropriate circumstances. The trial court has an affirmative duty to create a complete contemporaneous record of all material parts of the trial. People v. Harrison, 85 N.Y.2d 794, 796-97 (1995); see 52 Judiciary Law § 295. This facilitates appellate review. See Harrison, 85 N.Y.2d at 796; O’Rama, 78 N.Y.2d at 278. Reconstruction is appropriate when the trial court fails to fulfill this contemporaneous record-making obligation: where a material proceeding took place but was not recorded. Velasquez, 1 N.Y.3d at 49; see People v. Cruz, 14 N.Y.3d 814, 815-16 (2010) (unrecorded jury note handling); People v. Santorelli, 95 N.Y.2d 412, 424 (2000) (side-bar conference and Antommarchi waiver absent from the transcript); Monclavo, 87 N.Y.2d at 1031 (unrecorded Sandoval hearing); Michalek, 82 N.Y.2d at 907 (same); People v. Odiat, 82 N.Y.2d 872, 873-74 (1993) (defendant’s presence at Sandoval hearing unrecorded); People ex rel. Baumgart v. Martin, 9 N.Y.2d 351, 353 (1961) (incompletely recorded verdict); see also People v. Ferguson, 67 N.Y.2d 383, 386-87, 389 (1986) (defense consent to mistrial unrecorded and in effect reconstructed). This is so, even where a trial court affirmatively refused to record a material proceeding. Velasquez, 1 N.Y.3d at 49 (citing, e.g., Davidson, 89 N.Y.2d 881 (1996) (trial court refused to record voir dire)); see Harrison, 85 N.Y.2d at 797-98 (trial court 53 refused to record voir dire; conviction reversed only because reconstruction was impossible). Thus, reconstruction of the record is no less appropriate where a trial court failed to make an adequate contemporaneous record than where another arm of the court, such as the court reporter, see Judiciary Law §§ 198, 290, 294, lost a contemporaneous record that once existed, see, e.g., Glass, 43 N.Y.2d at 284. The parties are entitled to have the record reflect what actually happened at trial. People v. Bethune, 29 N.Y.3d 539, 541 (2017). The subject of the unrecorded proceedings here—O’Rama compliance—presents no reason to forgo reconstruction. This Court has not recognized any exception to the availability of reconstruction based on the nature of the proceedings. It has sanctioned reconstruction to resolve a claimed violation of the trial court’s duty to provide meaningful notice to counsel of a substantive jury request, Cruz, 14 N.Y.3d at 816. And the Court has endorsed reconstruction of proceedings involving similar interests: jury instructions, see Bethune, 29 N.Y.3d at 543 (existing transcript inaccurate); People v. Mealer, 57 N.Y.2d 214, 219 (1982) (original 54 record lost); Glass, 43 N.Y.2d 283, 285-87 (1977) (same), and proceedings involving claimed violations of the right to counsel, People v. Linares, 2 N.Y.3d 507 (2004); see People v. Richetti, 302 N.Y. 290, 292, 298 (1951). Nor does the reasoning of this Court’s O’Rama precedent support the conclusion that poor contemporaneous record-making on this subject is, of itself, a mode-of-proceedings error. This Court has always identified the trial court’s core responsibilities under C.P.L. § 310.30 as giving meaningful notice and a meaningful response, not as contemporaneous record-making. Silva, 24 N.Y.3d at 298-299; People v. Alcide, 21 N.Y.3d 687, 692 (2013); Kisoon, 8 N.Y.3d at 134. Mode-of-proceedings errors—such as trial before fewer than 12 jurors, trial before a court without jurisdiction, denial of the right to counsel, shifting the burden of proof to the defendant, violating constitutional double jeopardy protection—impair the essential validity of the process and irreparably taint the entire trial. See People v. Ahmed, 66 N.Y.2d 307, 310 (1985); People v. Patterson, 39 N.Y.2d 288, 296 (1976). Deficient contemporaneous record-making does no such thing. It is relevant primarily to the 55 right to appeal, and impairs that right only when adequate reconstruction of material proceedings is impossible. See Harrison, 85 N.Y.2d at 797-98. Moreover, deficient contemporaneous record-making cannot be a mode-of-proceedings error, as appeals were “perfected, heard and justly determined with the aid of [reconstruction] devices long before modern stenography and the stenotype machine arrived on the scene.” Rivera, 39 N.Y.2d at 523. To this day, the Criminal Procedure Law authorizes appeals from local criminal courts to be heard on wholly reconstructed records.7 C.P.L. § 460.10(3)(d), (e). Furthermore, treating deficient contemporaneous record- making as a mode-of-proceedings error would abrogate the established rule that the trial judge, as “final arbiter of the record,” Bethune, 29 N.Y.3d at 541 (quoting People v. Alomar, 93 N.Y.2d 239, 247 (1999)), “certifies to the appellate court, if he or she can, what originally took place below,” Alomar, 93 N.Y.2d at 247. 7 No contemporaneous recording of any kind was required in those courts until mechanical recording was ordered by the Chief Administrative Judge in 2008. People v. Smith, 27 N.Y.3d 643, 649 (2016). 56 Reconstruction, if feasible, enables the trial judge to fulfill this function. Id. at 247; see Judiciary Law § 7-a. Thus, a trial court’s neglect of its affirmative duty to make a contemporaneous record of proceedings, such as in this case the County Court’s neglect to make a record of disclosing the note before addressing the note on the record, is not itself a mode-of-proceedings error. It “does not, per se, require reversal.” Harrison, 85 N.Y.2d at 796. b. Reconstruction was not appropriate in Silva and Walston because, unlike here, the records did not indicate that any material unrecorded proceedings took place. The Appellate Division rejected the People’s request for a reconstruction hearing to determine what happened at the off-the- record proceeding in this case concerning the jury note, relying on a misunderstanding of this Court’s rulings in Walston and Silva. The Appellate Division correctly quoted Walston for the proposition that “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to.” Morrison, 148 A.D.3d at 1709 (quoting 57 Walston, 23 N.Y.3d at 990). But that quotation has no relevance to the People’s request for a reconstruction hearing here, for two reasons. First, the People did not ask the court to assume anything at all—they asked for a hearing to determine, as a matter of fact, whether the required notice to counsel was given at an off-the- record conference. And, second, at issue was an off-the-record conference that is quite plainly referenced in the transcript, and not a hypothetical conference described in Walston, “that the transcript does not refer to.” In asking for reconstruction, the People in this case were thus not relying on any presumption of regularity—as they were in Walston and Silva—but rather on a different principle: that a reviewing court cannot properly determine whether or not there was reversible error from a record that does not contain all of the relevant events, and should not find reversible error on such a record. This is true regardless of whether the alleged error is exempt from the preservation rule. See People v. McLean, 15 N.Y.3d 117 (2010); Velasquez, 1 N.Y.3d at 47-48; People v. Ramos, 99 N.Y.2d 27, 37 (2002); People v. Camacho, 90 N.Y.2d 558, 563 58 (1997); People v. Kinchen, 60 N.Y.2d 772, 773–74 (1983); People v. Parker, 60 N.Y.2d 714, 715 (1983); People v. Klein, 7 N.Y.2d 264 (1959). And the rule has special force when it is possible to remedy the gap in the record by reconstructing the omitted events at a hearing. This rule is essential to the fair and orderly administration of justice, because it encourages the party claiming error to utilize his right to make a contemporaneous record, see Judiciary Law § 295, and to fulfill his obligation to present a materially complete record for appellate review, by obtaining reconstruction if necessary. Neither the opposing party nor the trial court can effectively perform the function of ensuring a complete record, as they cannot know what claims of error will be raised on appeal, particularly if those claims do not require preservation. See McLean, 15 N.Y.3d at 121. Silva and Walston did not overrule this long-established law, and the Appellate Division majority erred in concluding to the contrary. 59 In Silva and Walston, on records that did not establish O’Rama compliance, this Court rejected the People’s invocation of the presumption of regularity; it also declined to order reconstruction. As the People here have not sought to rely on the presumption, it is unnecessary to identify precisely why this Court rejected its application in those other cases, or whether it might apply in this case. What the People seek here is reconstruction, which may be appropriate in a given case whether or not the presumption applies. People v. Parris, 4 N.Y.3d 41, 48-49 (2004) (affirming conviction where presumption did not apply, but defendant did not diligently seek reconstruction); Harrison, 85 N.Y.2d at 796-98 (reversing conviction where presumption applied but was rebutted and reconstruction was impossible). It should be ordered where, as here, the record indicates that O’Rama compliance might well have occurred in an unrecorded proceeding. It was rejected in Silva and Walston because the People could point to no evidence that any such unrecorded proceedings occurred. In Silva and its companion case People v. Hanson, 24 N.Y.3d 294, nothing in the records suggested that the judges were aware 60 of, alerted counsel to, or responded to substantive requests received immediately before the juries reached verdicts, or that any unrecorded proceedings occurred. Comp. 110-11, 152-54, 188-90, 197. Neither party in Silva sought reconstruction. In Hanson, defendant argued that there was nothing to reconstruct, Comp. 259, 262-63, and the People could point to no contrary evidence, Comp. 264. As the records in those cases were devoid of any indication that jury notes were handled in unrecorded proceedings, Silva, 24 N.Y.3d at 300, there was no reason to remit for reconstruction. In Walston, 23 N.Y.3d 986, the trial court disclosed most of the jury’s notes to counsel by reading them verbatim into the record, but, for the note at issue, neglected to read the crucial last word. The People primarily relied on the presumption of regularity. Their one-sentence alternative request for reconstruction, Comp. 81, 94, identified no evidence that the record was incomplete, Comp. 107- 08. Accordingly, this Court declined to remit for reconstruction of a speculated unrecorded conference “that the transcript does not refer to.” Walston, 23 N.Y.3d 990. 61 Thus, Walston and Silva reflect the commonsense principle that the Court will not remit for reconstruction, when there is no evidence that the record is incomplete. The Court’s earlier decision in People v. Tabb, 13 N.Y.3d 852 (2009), cited by the Court in Silva and Walston, should be understood to be based on this same principle. In Tabb nothing indicated that O’Rama compliance occurred in off-record proceedings. See Comp. 20-21, 30. The Court’s brief opinion, which was based on letter briefs pursuant to 22 N.Y.C.R.R. § 500.11 and explains that reversal is required “in the absence of record proof” of compliance, can and should be interpreted to mean that reconstruction is not warranted when there is no evidence that the record is incomplete. The broader alternative interpretation, that a trial court’s neglect to make a contemporaneous record of compliance is itself a mode-of-proceedings error and cannot be cured by reconstruction, is not a reasonable reading of the Court’s opinion. The Court would not have overruled the long-established principles and numerous prior decisions cited in this argument sub silentio and without full briefing or oral argument. 62 Here, in contrast to Silva, Walston and Tabb, the record shows the court and counsel participated in an unrecorded proceeding at which the required notice likely occurred. Refusing to permit reconstruction in the face of a materially incomplete record would needlessly and unjustly erect an irrebuttable presumption of reversible error. Silva, Walston and Tabb did not abrogate the long-standing rejection of such an approach. Indeed, in Nealon, the Court expressly declined to address the People’s argument that the Appellate Division erred in rejecting reconstruction, 26 N.Y.3d at 163—confirming that this Court does not read Silva, Walston and Tabb to bar reconstruction of the record to reflect what actually occurred. There is simply no reason for this Court to insist that a case should be adjudicated on the basis of a record that misrepresents the facts, when there is a perfectly good mechanism for ascertaining the relevant facts through a reconstruction hearing. The Appellate Division’s contrary view should be rejected. Therefore, if reversal of the Appellate Division’s order is not warranted on the grounds set forth in Points I and II, this case 63 should be remitted for a reconstruction of what transpired immediately before the court recalled the jury to respond to the jury note marked as Court Exhibit 9. Appellate review of defendant’s O’Rama claim could then take place on a record that reflects the relevant events. 64 CONCLUSION Therefore, the order of the Appellate Division should be reversed, and the case remitted either to the Appellate Division for consideration of defendant’s remaining claims or to County Court for reconstruction. Dated: New York, New York December 20, 2017 BARBARA D. UNDERWOOD Solicitor General NIKKI KOWALSKI Deputy Solicitor General for Criminal Matters HANNAH T. STITH Assistant Attorney General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General State of New York Attorney for Appellant By: ____________________________ HANNAH STITH LONG Assistant Attorney General 120 Broadway New York, NY 10271 (212) 416-8729 Reproduced on Recycled Paper COURT OF APPEALS STATE OF NEW YORK CERTIFICATION OF COMPLIANCE APL-2017-00105 THE PEOPLE OF THE STATE OF NEW YORK, Appellant, – against – WILLIAM MORRISON, Respondent. HANNAH STITH LONG, the signatory on the accompanying brief, hereby certifies, pursuant to 22 N.Y.C.R.R. §§ 500.1(j) and 500.11(m), that the brief was prepared by a word-processing system using a serifed, proportionally-spaced typeface and 14-point type for text and footnotes, and that the total word count for the body of the brief, including headings and footnotes, is 11,536 words. Dated: New York, New York December 20, 2017 _________________________ HANNAH STITH LONG Assistant Attorney General