The People, Appellant,v.William Morrison, Respondent.BriefN.Y.March 20, 2018STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL BARBARA D. UNDERWOOD SOLICITOR GENERAL ERLCT. SCHNEIDERMAN ATTORNEY GENERAL CRIMINAL APPEALS &. FEDERAL HABEAS CORPUS BUREAU August 16, 2017 The Honorable John P. Asiello Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. William Morrison No. APL-2017-00105 Dear Mr. Asiello: Appellant People of the State of New York seek reversal of 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. Because this case presents issues not squarely addressed by this Court’s earlier decisions, the People request full briefing and oral argument, or at a minimum oral argument on these letter briefs. Introduction 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 writ of error coram nobis for ineffective assistance of appellate counsel, and Pseudonym, pursuant to Civil Rights Law § 50-b(l). 120 BROADWAY, NEW YORK, NY 10271-0332 •TEL (212) 4168729 • FACS. (212) 416-8010 ‘NOT FOR SERVICE OF PAPERS The Honorable John P. Asiello August 16, 2017 Page 2 ordered a new appeal. On that appeal the court vacated the judgment, by order of March 24, 2017, holding that County Court committed a mode of proceedings violation of C.P.L. § 310.30 by declining to read a jury note into the record. DissentingJustice Erin M. Peradotto granted the People leave to appeal to this Court, which has jurisdiction 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. OTtama, 78 N.Y.2d 270 (1991), requires notice to counsel of the specific contents of the request before the court responds. 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 cou"«Jlacks 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 not announce a deadlock, and the only request it contained was ministerial. Second, County Court gave defense counsel adequate notice of the jury’s note through an alternative notice procedure designed to protect the jury from media influence; consequently, any error was not exempt from the preservation requirement. Before goingon the record, the court discussed the note with counsel and prepared a "group” response. On the record, the court marked the note as a court exhibit, directed counsel’s attention to that action, advised counsel that it would not read the note in open court, and responded to the note in counsel’s presence. This procedure gave counsel all the information she needed to object effectively to the court’s response. The Honorable John P. Asiello August 16, 2017 Page 3 Third, if the existing record is not sufficient to 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.2 Facts A. Trial 1. Evidence The People established the following through, among other things, defendant’s full confession. Defendant, tall and 240 pounds, worked as a certified nurse aide (RA228, RA323-24, RA487-88) 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 (RA204). 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, she said, “I’m going to tell on you.” Defendant left, trying to not to think about what he had done to her. (RA215-22, RA251-62, RA273-78, RA484-86, RA626-31.) Ms. Smith activated her call light and reported to responding staff, “I was raped” (RA215-218). She was agitated, trembling, shaking, crying and repeating herself. She complained of pain between her legs. (RA226- 33, RA250, RA265.) An examination revealed the presence of fresh 2 Pursuant to 22 N.Y.C.R.R. § 500.11(0, the People reserve all other arguments made in their Appellate Division brief. The Honorable John P. Asiello August 16, 2017 Page 4 semen in her vagina. (RA279-81, RA326-40.) DNA testing confirmed that the source was defendant. (RA358-66.) When defendant was arrested, he said he expected to be imprisoned for a long time, and if he remained at liberty he would commit the crime again (RA472-73). 2. Jury Instructions, Deliberations and Verdict The County Court was determined to complete defendant’s trial during the single week in February it had allotted, if possible. (T25-26, T52, T187.) 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. (T2-3, T52.) The court was concerned that the third effort could be undone by another storm (T2, T52, T131, RA608) or by exposure of the unsequestered jury to media reporting (T4, T49, T68-69, T138, T185, RA404 «4,588, RA610). Many prospective jurors reported exposure to accounts of the charges; some were dismissed as a result (Tr. 36, 121-22, 124, 127-28, 164-65). Local media were covering the trial (RA404, RA588, RA610). The trial was expected to require three or four days (T24-26, T52, T131), and the court had another trial scheduled for the following Monday (RA625), leaving little room for delay. 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.” (T54-55.) Jurors, the court continued, often do not reach a unanimous verdict on the first vote, and must continue to talk about the evidence and “work together to try and form the unanimous verdict.” (T133.) The Honorable John P. Asiello August 16, 2017 Page 5 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 (T187). Before summations, the court warned counsel not to suggest that jurors should hold out or otherwise refuse to deliberate together (T528). 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 (RA580-81). “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.” (RA580.) The court finished charging the jury at about 4:00 PM on Wednesday (RA582, RA647). The court building ordinarily closed at 4:30 PM (RA582), and the court had previously promised jurors that they would leave by 4:30 PM “every day” (Tr. 26). On Monday and Tuesday, the jury had indeed left at or before 4:30 PM (RA645-46). Therefore, the court 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 (RA582). 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 (RA582-83). 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 The Honorable John P. Asiello August 16, 2017 Page 6 tomorrow please (Court Ex. 4: RA633, RA647.) The court read the note into the record, and instructed the jury to break until morning (RA588-89). 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: RA588, RA591-96, RA632; Court Ex. 5: RA597, RA599-600, RA634; Court Ex. 6: RA602, RA635; Court Ex. 7; RA606, RA636, RA647.) When deliberations continued past 4:30 PM that day, the jury —which had been working since 9:00 AM — sent two notes (RA607, RA637-38, RA647). 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. (RA637.) 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. (RA638.) The Honorable John P. Asiello August 16, 2017 Page 7 Although the court knew that the jury had been deliberating for only about a day and continued to be “conscientiously]” engaged in its deliberative duties (RA582, RA589, RA611), 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 (RA608), and the court had another obligation on Friday afternoon (RA621) and another trial starting on Monday (RA625). Breaking then also carried the risk that jurors might be exposed to media or otherwise become unavailable. Jurors had committed to a three- or four-day trial (T25), and the alternates had been dismissed (RA597). The record shows that the court had an unrecorded conference with counsel regarding the notes, as explained at pages 18-19 below. On the record, the court marked the notes as Court Exhibits 8 and 9, respectively. (RA607, RA637-38, RA647.) Then, at 4:54 PM, with counsel preoont, the court recalled the jury. The cc"»* had expressed concern about the presence of reporters in the courtroom and was endeavoring to protect the unsequestered jury from media influence (RA404, RA588, RA610); accordingly, the court 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” (RA607, RA647). 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 possibility (RA607- 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.” (RA607-08.) 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. (RA608.) The court left the choice to the jury. Defense counsel raised no objection to the court’s response. The Honorable John P. Asiello August 16, 2017 Page 8 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: RA610, RA639, RA648). 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: RA611-13, RA640; Court Ex. 12: RA614-15, RA641; Court Exs. 13, 14: RA616-21, RA642-43, RA648.) 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 verdict would result in retrial and urging jurors to listen to each other with open minds (RA617-18). That afternoon, the jury reached a guilty verdict on all counts (RA622, RA648). B. Appeals The Appellate Division initially affirmed the judgment. People v. Morrison, 90 A.D.3d 1554 (4th Dep’t 2011), Iv. 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 Exhibits8and 9 violated C.P.L. § 310.30 and O'Rama. In response, the People submitted two affirmations. 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 partial verdict to reporters in the courtroom. Nonetheless, the Appellate Division summarily granted the writ. On defendant’s new appeal, over the dissent of Justice Peradotto, the Appellate Division vacated the judgment and ordered a new trial, The Honorable John P. Asiello August 16, 2017 Page 9 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, 1710 (4th Dep’t 2017). 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 theprinciple 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 *«®jority and dissent disagreed, however 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 tocontinue 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 guidance in the face of difficulty reaching a unanimous verdict. 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 them 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 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 Honorable John P. Asiello August 16, 2017 Page 10 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. The majority implicitly rejected the People’s argument that the unrecorded proceedings regarding the note should be reconstructed. Argument A. Court Exhibit 9 Was Not Subject to C.P.L. § 310.30, Because the Inquiry It Contained Was Ministerial. Section 310.30 applies only to jury requests for substantive instruction or information. It had no application to Court Exhibit 9, which consisted a revised status report and a ministeri*! inquiry about whether to break for the night. The note cannot reasonably be viewed as a deadlock announcement. The County Court included mild Allen-type instructions in its response, not because it read the note as announcing a deadlock, but because it hoped to avoid the risks attending an overnight adjournment by encouraging the jury to complete its deliberations that night. Section 310.30 governs only jury requests for further instruction or information with respect to “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 ministerial, requests. People v. Wallace, 27 N.Y.3d 1037, 1039 (2016); Nealon, 26 N.Y.3d at 161. A deadlock announcement — which is effectively a jury request to be relieved from further consideration of the case — is a substantiverequest. E.g., People v. Kisoon, 8 N.Y.3d 129 (2007). The Honorable John P. Asiello August 16, 2017 Page 11 On the other hand, a request is ministerial if it is “wholly unrelated to the substantive legal or factual issues at trial.” People v. Collins, 99 N.Y.2d 14, 17-18 (2002); Harris, 76 N.Y.2d at 812. 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.l (2016). Here, the implicit request for instruction contained in Court Exhibit 9 — “[n]ot sure what to do” — concerned ministerial matters. Thesurrounding circumstances, together with note’s text, establish that the jury was inquiring whether it should break for the night. 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 fhoy 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 specified 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 Court Exhibit 9, revising its report: The jury had now reached a verdict on two of the three counts and was “starting to make way” on the remainingcount. But the jury still had “a lot of work to do” and “d[idn’]t see it being quick.” Therefore, the jury was “[n]ot sure what to do” at that late hour. The Honorable John P. Asiello August 16, 2017 Page 12 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 Court Exhibit 9, 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 conscientiously].” 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,” Collins, 99 N.Y.2d at 17-18; People v. Hameed, 88 N.Y.2d 232, 241 (1996); Harris, 76 N.Y.2d at 812, and certainly did not convey a deadlock Action 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 trialwascompleted 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 ordifficulty 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-type encouragement, the jury would instead continue to verdict that night. The Honorable John P. Asiello August 16, 2017 Page 13 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 during its continuing deliberations, into a deadlock announcement. Moreover, any objection to the unrequested Allen-type instruction 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 Defense Counsel Meaningful Notice of the Contents of Court Exhibit 9. Should this Court conclude that the request in Exhibit 9 was substantive, the Appellate Division nonetheless erred in finding a mode of proceedings error, because the County Court provided defense counsel with meaningful notice of the request contents. The record shows that the court adopted a proceHiÿ-p to limit the risk of media influence o" *he jury, and that procedure gave defense counsel notice of the contents of the note and an opportunity to object effectively to the court’s procedure and response. The only question before the Court is whether the County Court’s procedure constituted a mode of proceedings error, an error reviewable on the law despite defendant’s lack of objection. See People v. Mack, 27 N.Y.3d 534, 540 (2016). A mode of proceedings error concerning a jury note occurs where defense counsel lacks “meaningful notice” enabling her toeffectively represent a defendant’s interests in securing an appropriate response. Notice must enable counsel to object effectively to the court’s procedure and to the court’s response in time to cure any deficiency. Nealon, 26 N.Y.3d at 159, 162; Mack, 27 N.Y.3d at 541-42; see O’Rama, 78 N.Y.2d at 277, 280 n.3. Without access to a note’s content, counsel cannot detect error in the court’s response. Mack, 27 N.Y.3d at 541. Thus, this Court has held that a mode of proceedings error occurs where the trial court fails to mention to counsel the existence of a note The Honorable John P. Asiello August 16, 2017 Page 14 containing a substantive request, People v. Mendez, 26 N.Y.3d 1004, 1005 (2015); People v Silva, 24 N.Y.3d 294, 297 (2014), People v. Hansen, 24 N.Y.3d 294, 297 (2014); People v. Martin, 8 N.Y.3d 129, 133 (2007), and where the court withholds the contents from counsel, or misleads counsel about the contents. In O’Rama, the 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; O’Rama Appendix at 326. 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 disclose the contents of a note but omitted significant parts. In each of these cases, the trialcourt impaired counsel’s effectiveness by preventing her from learning, or misleading her regarding, the note’s contents; counsel could not object to an error of which she was unaware. Mack, 27 N.Y.3d at 541. By contrast, this Court has rejected mode of proceedings error claims where violation of 0’R”™n$ standard procedures did not deprive counsel of the ability to effectively object to the court’s procedure and response. For example, no mode of proceedings error occurs when a court apprises counsel of the contents of a note for the first time when it reads the note to the jury in open court and then responds to it. Under those circumstances, counsel can determine whether the response was appropriate, and object if necessary to protect the defendant’s interests. Further, counsel knows that she was not shown the note before the court’s response or given an opportunity to be heard on what the response should be, and so she also has the information necessary to object to the court’s procedures for responding to the note. Nealon, 26 N.Y.3d at 162; see People v Morris, 27 N.Y.3d 1096, 1098 (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). Thus she must preserve any claim of error for this Court’s review. Likewise, no mode of proceedings error occurs if the court makes only partial disclosure of a substantive request before responding, so long as the disclosure gives defense counsel sufficient information to preserve The Honorable John P. Asiello August 16, 2017 Page 15 any claim of error. In People v. Kadarko, 14 N.Y.3d 426 (2010), 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. at 428; Kadarko Def. Br. 2-6. The court at first explicitly declined to disclose the vote splits to counsel, but corrected itself after it delivered an Allen charge and deliberations resumed. Id. at 428, 430. This Court found no mode of proceedings error, noting that the trial court advised counsel that it was withholding the splits and counsel did not object before or after the court disclosed the full note. Id. at 429-30. Thus, as with other claims of trial court interference with the effective assistance of counsel, counsel’s ability to effectively object is the deciding factor. See People v. Garay, 25 N.Y.3d 62, 67-68 (2015) (juror replacement decision made in counsel’s absence); People v. Umali, 10 N.Y.3d 417, 423 (2008) (ban on communication between counsel and defendant); People v. Narayan, 54 N,Y, d 106, 112-13 (1981) (same). This case is analogous to the cases in which this Court found no mode of proceedings error, because the alternative procedure adopted by the trial court gave counsel full ability to object to the court’s procedure and its response. The court provided meaningful notice by explaining the court’s procedure, and making the precise contents of the note available tocounsel, thereby enabling her to object effectively both to the procedure and to the court’s response to the note. The trial court chose a procedure designed to avoid revealing the 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 to adopt an alternative procedure equally conducive to counsel’s participation. As more fully described at pages 18-19 below, off the record, the court and counsel agreed upon a “group” response after discussing the note. On the record, the court marked the note as a court exhibit. Then the court alerted counsel that the note was marked as a court exhibit and would not be read into the record. This enabled counsel The Honorable John P. Asiello August 16, 2017 Page 16 to object to the court’s procedure. While the absence of a transcript of the discussion that preceded the response to Court Exhibit 9 leaves uncertain the extent to which the court apprised counsel of the note’s contents, counsel knew the court intended to offer extended deliberations that night and deliver Allen-type instructions. As a result, when the court advised counsel that the note would not be read into the record, it alerted counsel to her need to read the note, if the court had not otherwise revealed its contents to her, so she could object to the content of the response. Therefore, no mode of proceedings error occurred. Unlike the cases in which this Court found a mode of proceedings error, the trial court here did nothing to prevent or discourage counsel from learning the actual contents of the note. Instead, as in Nealon and Kardarko, the court gave counsel all the information she needed to provide effective assistance; she had the tools she needed to object effectively to both the court’s procedure and the court’s response, in time for court to cure any error. It is immaterial that the existing record does not directly establish counsel’s actual knowledge of the precise contents of the note. Section 310.30 requires “notice,” not actual knowledge. 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. This 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.” People v. Williams, 27 N.Y.3d 212, 223 n.2 (2016). An actual knowledge prerequisite for application of the preservation rule would also reward gamesmanship. The promise of automatic reversal on appeal would encourage counsel to remain silent at a time when O’Rama error could be prevented or cured. Mack, 27 N.Y.3d at 543-44. This would be “precisely the opposite effect from what The Honorable John P. Asiello August 16, 2017 Page 17 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 made the note available to counsel, conveyed her need to read it if she did not already know its contents, and thus enabled her to object to the court’s procedure or response. C. If the Existing Incomplete Record Does Not Establish Meaningful Notice of a Substantive Jury Request, a Reconstruction Hearing is Appropriate. If, contrary to the arguments above, this Court were to conclude that Court Exhibit 9 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. The Appellate Division erred in apparently viewing this option as foreclosed by this Court’s holdings in Walston, 23 N.Y.3d at 990, and Silva, 24 N.Y.3d at 300. In those cases, this Court held that the record must indicate compliance with O’Rama procedures, and refused in the absence of such a record to affirm on the presumption of regularity. Walston and Silva do not, sub silentio, overrule decades of precedent favoring resolution of claims on a complete record, and authorizing reconstruction when material proceedings are absent from the record. No good reason exists to treat a court’s poor record-making regarding a jury note differently from other lapses in record-making. And 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. The Honorable John P. Asiello August 16, 2017 Page 18 1. Reconstruction is Appropriate Because the Record Unequivocally Shows that Highly Relevant Unrecorded Proceedings Occurred. Remittal for reconstruction is called for here because the existing record strongly supports the inference that counsel received meaningful notice of Court Exhibit 9’s contents at an unrecorded proceeding before the court responded to the juiy. 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. Monelavo, 87 N.Y.2d 1029, 1031 (1996); People v. Michalek, 82 N.Y.2d 906, 907 (1994). The evidence of an unrecorded conference about Court Exhibit 9 is strong. First, the court’s practice, as it told the jury, was to craft answers to «”h8tantive jury questions “together with attorneys” (RA615), and the record shows that on several occasions that collaborative process was unrecorded. The court had answered three notes requesting substantive instruction before receiving Court Exhibit 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. (RA591- 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. (RA597, RA599-600.) And on receiving another request for legal definitions and a re-reading of certain testimony, the court must have held an unrecorded discussion, because by the time the court read the note into the record, the definitions and requested portions of testimony had already been identified. (RA602.) Second, when the court went on the record to respond to Court Exhibit 9, it referred to 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” (RA608). The judge, The Honorable John P. Asiello August 16, 2017 Page 19 who ordinarily referred to himself as “I,” spoke as “we” (RA607-08). Counsel, a vigorous advocate, never objected to the court’s procedure concerning any jury note. Thus, the record demonstrates that an unrecorded discussion occurred, which, if reconstructed, would reveal whether the court provided meaningful notice of Court Exhibit 9. Defendant has never claimed otherwise. Therefore, remittal for reconstruction of that discussion is appropriate. 2. This Court’s Decisions in Silva and Walston Do Not Bar Reconstruction The Appellate Division majority apparently misinterpreted Silva and Walstonas holding that failure tocreate a record of compliance under C.P.L. § 310.30 and O’Rama is itself a mode of proceedings error, which is not «"hject to remedy through reconstruction rf relevant unrecorded events. Such a view is unsupported by the holdings, reasoning or facts of those cases. This Court’s requirement in Silva and Walston that the trial court make a record of O’Rama compliance simply mandates adherence to general principles regarding record-making that this Court has consistently viewed as allowing reconstruction in appropriate circumstances. complete contemporaneous record of all material partsof the trial. People v. Harrison,85 N.Y.2d 794, 796-97 (1995); see Judiciary Law § 295. This enables appellate review. See Harrison, 85 N.Y.2d at 796; O’Rama, 78 N.Y.2d at 278. The trial court has an affirmative duty to create a A presumption of regularity applies to judicial proceedings, including criminal trials, Velasquez, 1 N.Y.3d at 48, and a reviewing court may not infer error from a record that fails to reflect the relevant events, People v. McLean, 15 N.Y.3d 117 (2010); People v. Camacho, 90 The Honorable John P. Asiello August 16, 2017 Page 20 N.Y.2d 558, 563 (1997); People v. Parker, 60 N.Y.2d 714 (1983); People v. Klein, 7 N.Y.2d 264 (1959). Reconstruction is one of multiple mechanisms that exist to allow a reviewing court to address a claim of error when the existing record is inadequate for one reason or another. For example, a defendant claiming error that occurred outside of court proceedings may develop the record through a motion to vacate judgment under C.P.L. 440.10. Similarly, reconstruction is available when the trial court fails to fulfill its record¬ making obligation and reconstruction is possible. Compare People u. Davidson, 89 N.Y.2d at 882 (trial court refused to record voir dire; conviction reversed on a reconstructed record that showed defendant had been excluded from bench conferences with jurors) with Harrison, 85 N.Y.2d at 797-98 (trial court similarly refused to record voir dire; conviction reversed because reconstruction deemed impossible). See also People v. Payne, 88 N.Y.2d 172, 184-86 (1996); People v. Ferguson, 67 N.Y.2d 383 389 (1986). Indeed, a trial judge’s obli#?«Hon to reconstruct the record is part of its duty to certify for appellate review what occurred below. People v. Bethune, 2017 N.Y. Slip Op. 04493 (N.Y. June 8, 2017); People v. Alomar, 93 N.Y.2d 239, 247 (1999); see Judiciary Law § 7-a. The subject of the unrecorded proceedings here — O’Rama compliance — presents no reason to forgo reconstruction of a deficient record. 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, People v. Cruz, 14 N.Y.3d 814, 816 (2010). And the Court has endorsed reconstruction of proceedings involving similar interests: jury instructions, see Bethune, 2017 N.Y. Slip Op. 04493 (existing transcript inaccurate); People v. Mealer, 57 N.Y.2d 214, 219 (1982) (original record lost); People v. 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). The Honorable John P. Asiello August 16, 2017 Page 21 Nor does the reasoning of this Court’s O’Rama precedent support the conclusion that poor 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 record-making. Silva, 24 N.Y.3d at 298-299; Alcide, 21 N.Y.3d at 692; Kisoon, 8 N.Y.3d at 134. Mode of proceedings errors, such as shifting the burden of proof to the defendant, impair the essential validity of the process and irreparably taint the entire trial. People v. Patterson, 39 N.Y.2d 288, 296 (1976). Defective contemporaneous record-making is relevant primarily to the 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. Thus, reconstruction is no less appropriate where the judge failed to make a contemporaneous record, see Velasquez,1 N.Y.3d at 49; see, e.g., People v. Santorelli, 95 N.Y.2d 412, 424 (2000), than where the court stenographer lost the record. The fact that this Court declined to apply the presumption of regularity in Walston, 23 N.Y.3d at 990, and Silva, 24 N.Y.3d at 300, also casts no doubt on the appropriateness of reconstruction here. The presumption of regularity applies to the handling of jury notes and supplemental instruction where the defendant alleges a violation of the fundamental rights protected by § 310.30: the right toeffective assistance of counsel and the right to be present during supplemental instructions. Cruz, 14 N.Y.3d at 818; People v. Andrew, 1 N.Y.3d 546, 547 (2003); People ex rel. Bartlam v. Murphy, 9 N.Y.2d 550 (1961). The presumption permits an appellate court to affirm a judgment where the record is incomplete. See, e.g., Glass, 43 N.Y.2d at 285-87. In both Walston and Silva, the People urged this Court to invoke the presumption of regularity where the existing record seemed to show each court’s failure to provide meaningful notice. Applying the presumption would have required this Court to conclude that the apparent error in each case was remedied in unrecorded proceedings. The Honorable John P. Asiello August 16, 2017 Page 22 This Court declined this invitation 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 of, alerted counsel to, or responded to substantive requests received immediately before the juries reached verdicts, or that any unrecorded proceedings occurred. Silva Def. Br. 21-22 & Peo. App’x 1010-12; Hanson App’x 364- 66 & Resp. Br. 17.3 Neither party in Silva sought reconstruction. In Hanson, defendant argued that there was nothing to reconstruct, and the People could point to no contrary evidence. Arg. Tr. 41-42, 56. 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 requ°«f for reconstruction, Resp. Br. 18, 31, ’'Wtified no evidence that the record was incomplete, Arg. Tr. 24. Thus, Walston and Silva reflect the commonsense principle that the Court will not presume that omissions were remedied in unrecorded proceedings, and there is no occasion to consider reconstruction, when there is no evidence that the record is incomplete. Here, by contrast, 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. Walston and Silva 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 3 Briefs/records/transcripts available on Court-PASS, www.nycourts.gov/ ctapps/courtpass/. The Honorable John P. Asiello August 16, 2017 Page 23 at 163 — confirming that this Court does not read Walston and Silva tobar reconstruction. Therefore, if reversal of the Appellate Division’s order is not warranted on the grounds set forth in Parts A and B, this case should be remitted for a reconstruction of what transpired immediately before the court recalled the jury to respond to the note. Defendant has never alleged, and there is no reason to believe, that reconstruction would be futile. Cf. People v. Rivera, 39 N.Y.2d 519, 524-25 (1976). The judge, the prosecutor and defense counsel were all witnesses to the relevant events. Appellate review of defendant’s O’Rama claim could then take place on a record that reflects the relevant events. 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. Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York jAi/UBy: pannah Stith Long Assistant Attorney General Tel. 212-416-8729 cc: Mary R. Humphrey, Esq. Tel. 315-732-4055 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, CERTIFICATION OF COMPLIANCE-against - APL-2017-00105WILLIAM MORRISON, Respondent. HANNAH STITH LONG, the signatory on the accompanying letter brief, hereby certifies, pursuant to 22 N.Y.C.R.R. §§ 500.l(j) and 500.11(m), that the letter was prepared by a word-processing system using a serifed, proportionally-spaced typeface and 14-point type for text and 12-point type for footnotes, and that the total word count for the body of the letter, including headings and footnotes, is 6,982 words. Dated: New York, New York August 16, 2017 Ik4 HANNAH STITH'LONG Assistant Attorney General