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. REPLY 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: February 8, 2018 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................. ii ARGUMENT .................................................................................... 1 THE TRIAL COURT’S UNPROTESTED HANDLING OF THE JURY NOTE MARKED AS COURT EXHIBIT 9 DID NOT REQUIRE REVERSAL OF DEFENDANT’S CONVICTION ...................................... 1 A. The Jury Note Was Not Subject to C.P.L. § 310.30 Because the Inquiry It Contained Was Ministerial. ....... 2 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. ................................................................................. 7 C. If the Existing Incomplete Record Does Not Establish Meaningful Notice of the Jury Note, Reconstruction is Appropriate. ...................................... 12 CONCLUSION ............................................................................... 20 ii TABLE OF AUTHORITIES Cases Page(s) People ex rel. Baumgart v. Martin, 9 N.Y.2d 351 (1961) ................................................................... 18 People v. Brown, 90 N.Y.2d 872 (1997) ................................................................. 14 People v. Cruz, 14 N.Y.3d 814 (2010) ............................................... 10, 13, 17, 18 People v. Ferguson, 67 N.Y.2d 383 (1986) ................................................................. 18 People v. Glass, 43 N.Y.2d 283 (1977) ........................................................... 18, 19 People v. Hanley, 20 N.Y.3d 601 (2013) ................................................................. 10 People v. Kalinowski, 84 A.D.3d 1739 (4th Dep’t 2011) ............................................... 11 People v. Linares, 2 N.Y.3d 507 (2004) ................................................................... 18 People v. Mack, 27 N.Y.3d 534 (2016) ................................................................... 3 People v. Martin, 8 N.Y.3d 129 (2007) ..................................................... 3, 8, 10, 11 People v. Mealer, 57 N.Y.2d 214 (1982) ................................................................. 18 People v. Michalek, 82 N.Y.2d 906 (1994) ................................................................. 14 People v. Miller, 163 A.D.2d 491 (2d Dep’t 1990) ........................................... 11, 12 iii TABLE OF AUTHORITIES (cont’d) Cases Page(s) People v. Nealon, 26 N.Y.3d 152 (2015) ................................................................... 3 People v. O’Rama, 78 N.Y.2d 270 (1991) ..................................... 1, 3, 8, 9, 10, 11, 20 People v. Odiat, 82 N.Y.2d 872 (1993) ........................................................... 13, 14 People v. Parris, 4 N.Y.3d 41 (2004) ..................................................................... 19 People v. Rivera, 39 N.Y.2d 519 (1976) ................................................................. 19 People v. Santorelli, 95 N.Y.2d 412 (2000) ................................................................. 14 People v. Silva, 24 N.Y.3d 294 (2014) ............................................................. 8, 10 People v. Velasquez (People v. Foster), 1 N.Y.3d 44 (2003) ............................................................... 13, 15 People v. Wallace, 27 N.Y.3d 1037 (2016) ................................................................. 3 People v. Walston, 23 N.Y.3d 986 (2014) ................................................................. 11 Statutes C.P.L. § 310.30 ......................................................................... 1, 2, 3 ARGUMENT THE TRIAL COURT’S UNPROTESTED HANDLING OF THE JURY NOTE MARKED AS COURT EXHIBIT 9 DID NOT REQUIRE REVERSAL OF DEFENDANT’S CONVICTION None of defendant’s arguments that the trial court’s handling of the jury note marked as Court Exhibit 9 (“the jury note”) required reversal of his conviction can withstand scrutiny. Criminal Procedure Law § 310.30, as interpreted by People v. O’Rama, 78 N.Y.2d 270 (1991), and its progeny, requires a trial court to provide counsel with 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 an objection. But O’Rama does not require reversal here, and defendant’s arguments to the contrary are mistaken. First, defendant’s claim that the notice requirement applies to non-substantive requests is contrary to this Court’s precedent, and his argument that the jury’s inquiry was a substantive request for this purpose is unpersuasive. Second, if O’Rama procedures were required, defendant misstates the law when he argues that the existing record establishes a mode-of-proceedings error because 2 it does not show that counsel had actual knowledge of the note’s contents. Automatic reversal is not called for here because the County Court gave counsel reason and opportunity to inspect the note herself, which fulfilled § 310.30’s purpose of enabling counsel to represent defendant’s interests effectively when the jury seeks substantive supplemental instruction. Third, neither the law nor the facts support defendant’s opposition to reconstruction of the record should this Court determine that the existing record does not rule out a mode-of-proceedings violation. A. The Jury Note Was Not Subject to C.P.L. § 310.30 Because the Inquiry It Contained Was Ministerial. Defendant cites no authority for his contention that the notice requirement of § 310.30 applies to non-substantive jury requests (Def.’s Br. 11), and that claim is contrary to the text of the statute, this Court’s well-established precedent, and the purposes of the notice requirement, as demonstrated in the People’s main brief. 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.” 3 This Court does not apply the notice requirement to ministerial requests. People v. Wallace, 27 N.Y.3d 1037, 1039 (2016); People v. Nealon, 26 N.Y.3d 152, 161 (2015). This approach is consistent with the Court’s view of the purpose of § 310.30’s notice requirement, which is to protect the defendant’s right to counsel (People’s Br. 27- 28). See People v. Mack, 27 N.Y.3d 534, 540-41 (2016); People v. Martin, 8 N.Y.3d 129, 135 (2007); O’Rama, 78 N.Y.2d at 277, 280 n.3. Notice to counsel of a request for further instruction on the law or the evidence is crucial to effective representation. By contrast, notice to counsel of an inquiry about a ministerial matter such as the timing of breaks has no such impact. Nor is there merit to defendant’s alternative theory that Court Exhibit 9 was not a recess inquiry, but a request for substantive instruction. Defendant contends that, if the jury were making a recess inquiry, it would have explicitly asked to break and resume deliberations at a specified time the next morning, as it did in the notes marked as Court Exhibits 4 and 10 (Def.’s Br. 10-11). But defendant overlooks the fact that, unlike the note at issue here, those notes were responses to directives by the court to elect 4 between explicitly specified options in regard to the overnight recess. Court Exhibit 4 was a response to the court’s late-Wednesday directive to the jury to specify whether it would need more time to reach a verdict and, if so, the time at which it wished to resume deliberations on Thursday. The court directed the jury that, if at 4:30 PM, the time the courthouse normally closed, the jury did not anticipate reaching a verdict by 4:45 PM, to send a note saying “we can’t reach a verdict today” and “need more time,” and specifying “what time [the jury] would like to come back tomorrow.” The court advised the jury to select a time between 8:30 AM and 10 AM. (A 582-83.) The jury responded with Court Exhibit 4, stating that it would not be able to reach a complete verdict that day, and wished to resume deliberations at 9:00 AM on Thursday (A 633). Court Exhibit 10 was likewise a response to a directive by the court to elect between specified options. On Thursday night, the court, in responding to Court Exhibit 9, asked the jury to elect either to continue deliberations for up to another hour, or to specify that it wished “to come back tomorrow to resume [its] deliberations” 5 and “what time [it woul]d like to start” (A 609). In Court Exhibit 10, the jury answered that it did not believe it could reach a complete verdict within the next hour, and wished to resume deliberations at 10:00 AM on Friday (A 639). By contrast, the court had given the jury no information about its break options when the jury sent Court Exhibit 9 on Thursday night. The jury sent the note after its accustomed 4:30 PM break time passed without any communication from the court. The jury advised that court that it was “[n]ot sure what to do” at that late hour, given that it still had “a lot of work to do” on the top count and “d[idn’]t see it being quick,” but was “starting to make way.” Moreover, defendant offers no plausible substantive interpretation of the jury’s inquiry. He does not defend the Appellate Division majority’s view that that note could reasonably be interpreted as a deadlock announcement. And, by questioning the appropriateness of the court’s Allen-type instructions (Def.’s Br. 11), he suggests that the majority’s interpretation is unsound. Indeed, as the People have previously explained (People’s Br. 21- 25), the Appellate Division’s interpretation is untenable. The jury 6 never reported difficulty in deliberating; to the contrary, Court Exhibit 9 announced that they had arrived at a verdict on two of the three counts and were “starting to make way” on the remaining count but still had “a lot of work to do.” As explained in the People’s main brief, the court’s instruction, which encouraged productive deliberation, did not indicate any concern that that the jury was at an impasse, but instead reflected the court’s desire that the jury attempt to arrive at a verdict that evening, because an overnight break posed weather, media-taint and juror unavailability risks, and could potentially necessitate adjournment of the court’s next trial. Defendant apparently maintains that the jury was seeking some other type of substantive direction, but his inability to articulate what that might have been undermines his claim. While defendant is correct that Court Exhibit 9 is “ambiguous” in some sense (Def.’s Br. 11), the scope of the ambiguity falls wholly within the realm of the ministerial. The note might be viewed as a respectfully phrased request to break for the night; as a request for the court to clarify the jury’s options as the court had done the night 7 before, or as a request for direction as to whether to continue after- hours deliberations or resume in the morning. In any case, the request concerned the logistics of the deliberative process, when to take a break, a purely ministerial matter. 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 the jury’s inquiry were deemed substantive (which it was not), the record shows that no mode of proceedings error occurred, because the trial court’s alternative procedure provided counsel with meaningful notice of the note. Defendant’s argument to the contrary is unpersuasive. Defendant appears to offer two alternative standards under which he urges this Court to find the notice inadequate. The first is not supported by the law. The reasoning behind the second actually supports the conclusion that notice here was adequate. Defendant repeatedly asserts that notice is adequate only if the record reflects counsel’s actual knowledge of the contents of a 8 jury note (Def.’s Br. 5, 12, 14). He relies on People v. Silva, 24 N.Y.3d 294 (2014), and People v. Martin, 8 N.Y.3d 129 (2007), but neither case imposed such a requirement; in each case, counsel was never even made aware of the existence of the jury note. Further, as the People explained in their main brief (People’s Br. 38-41), this Court has never held that notice to counsel of a fact requires proof of counsel’s actual knowledge of that fact. Equally without support in the law is defendant’s further assertion that counsel’s actual knowledge of a note’s contents is established only if the note is read into the record (Def.’s Br. 10). While O’Rama, on which he relies, recommends reading the note into the record to memorialize counsel’s notice of its contents, it expressly allows for alternative forms of notice when circumstances warrant it. 78 N.Y.2d at 277- 78. A trial court’s determination not to read a substantive jury request into the record is not a mode of proceedings error where the court provides meaningful notice of the request by other means. Id. Elsewhere, defendant seems to recognize an alternative form of adequate notice, acknowledging that a court would satisfy the requirement by offering to let counsel read the note herself (Def.’s 9 Br. 13). This position undermines defendant’s claim that giving counsel reason and opportunity to review the note does not constitute meaningful notice. Adequate notice must afford counsel an opportunity to represent her client’s interests in assuring that a court adequately responds to a substantive jury note, as defendant acknowledges (Def.’s Br. 5). And here, defendant’s counsel had all the information she needed to object effectively to the court’s departure from standard O’Rama procedure for responding to substantive jury notes and to the content of the court’s response. Defendant does not claim otherwise. 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 exhibit and would not be read into the record. This enabled counsel to object to the court’s procedure in time for the court to change course. The procedure also enabled counsel to object intelligently to any error in the court’s response, by giving counsel reason to inspect the court exhibit herself, if she had not already seen or heard its precise contents. Such objection from 10 counsel would have enabled the court to prevent or cure any error in its response. Recognizing a mode of proceedings error here where counsel had access to the specific jury-note content necessary to represent her client effectively, and had reason to review it, would be improper because the alleged error did not impair a fundamental constitutional right or deprive the court of jurisdiction. See People v. Hanley, 20 N.Y.3d 601, 604 (2013). Moreover, despite defendant’s suggestion to the contrary, such a result is certainly not required under any of this Court’s jury note precedents (Def.’s Br. 4-9, 12- 15). This Court has never recognized a mode of proceedings error for a departure from standard O’Rama procedure that was made clear on the record and did not prevent counsel from knowing the contents of the note and objecting effectively to the court’s response. In People v. Silva, 24 N.Y.3d at 297, People v. Hanson, 24 N.Y.3d 294, 298 (2014), People v. Cruz, 14 N.Y.3d 814, 815-16 (2010), and People v. Martin, 8 N.Y.3d at 133, this Court recognized mode of proceedings errors where, unlike here, the trial courts failed to disclose the existence of jury notes. Such a failure denies the 11 defendant “his core right to the assistance of counsel in responding to the jury’s request.” Martin, 8 N.Y.3d at 135. In People v. Kalinowski, 84 A.D.3d 1739, 1740 (4th Dep’t 2011), also relied upon by defendant, the Appellate Division recognized a mode of proceedings error based on the same fact pattern. In People v. Kisoon, 8 N.Y.3d 129, 132 (2007), like in People v. Walston, 23 N.Y.3d 986, 988 (2014), the trial court purported to read the contents of a jury note into the record but actually omitted significant parts. By misleading counsel regarding the court’s procedure and the note’s contents, the court prevented her from objecting to the procedural irregularity and intelligently evaluating the court’s response. Here, by contrast, the court fully disclosed its procedural departure, enabling counsel to object to the departure or inspect the note herself. In People v. Miller, 163 A.D.2d 491 (2d Dep’t 1990), another Appellate Division decision cited by defendant, the trial court, like the trial court in O’Rama itself and unlike the trial court here, affirmatively denied counsel’s request for disclosure of the contents of the deadlock note. The trial court thus prevented counsel from 12 evaluating its response effectively. Miller is inapposite for the additional reason that the error was preserved, and the Appellate Division thus had no occasion to distinguish between ordinary error and mode of proceedings error. Thus, the case law cited by defendant does not support his view that a departure from O’Rama’s standard procedures that in no way impairs the right to effective assistance of counsel can constitute a mode of proceedings error. C. If the Existing Incomplete Record Does Not Establish Meaningful Notice of the Jury Note, Reconstruction is Appropriate. Should this Court conclude that the existing incomplete record does not establish meaningful notice of a substantive jury request, the crucial question of whether the trial court provided meaningful notice should be decided on a reconstructed record that reflects the relevant facts. No good reason exists for this Court to ignore all indications that the record is incomplete and assume that there is nothing to reconstruct, and defendant offers none (Def.’s Br. 21-24). And his argument that reconstruction is unlikely to succeed (Def.’s Br. 17-18, 24-26) is legally and factually baseless. 13 Contrary to defendant’s contentions (Def.’s Br. 21-22), unequivocal proof in the record that the record is incomplete is not a prerequisite for a reconstruction hearing. A reconstruction hearing may be held “where it is clear that a proceeding took place that was not transcribed . . . or there is significant ambiguity in the record.” People v. Velasquez (People v. Foster), 1 N.Y.3d 44, 49 (2003). This Court has repeatedly relied on a reconstructed record, or remitted for a reconstruction, in order to determine an issue in a case where it was not certain that the original record was incomplete. For example, in People v. Cruz, 14 N.Y.3d at 815, nothing in the original unreconstructed record suggested that the trial judge discussed a particular jury note with counsel, or even received the note. Nonetheless, this Court declined to assume that the judge did not disclose the note, and, instead, relied on the judge’s statements at a reconstruction hearing, showing that the judge had not disclosed the note. Id. at 816. In People v. Odiat, 82 N.Y.2d 872, 873 (1993), the original unreconstructed record did not reflect the defendant’s presence at 14 a Sandoval hearing, and indeed affirmatively suggested that he was absent. Instead of assuming that the defendant was in fact absent, this court remitted the case to the trial court for a reconstruction hearing. Id. at 874; accord People v. Michalek, 82 N.Y.2d 906, 907 (1994). Likewise, in People v. Santorelli, 95 N.Y.2d 412, 423 (2000), the original unreconstructed record did not contain an Antommarchi waiver by the defendant. This Court endorsed the trial court’s reconstruction of the record to reflect that the defendant had waived his Antommarchi rights during an unrecorded discussion. Id. at 423-24. In People v. Brown, 90 N.Y.2d 872, 874 (1997), the Court ruled that it had no power to review a factual determination by the Appellate Division that the defendant did not consent to the submission of an annotated verdict sheet. But the Court observed that, had the People sought reconstruction, the Appellate Division could have remitted the case for a hearing on whether an unrecorded approval of the verdict sheet was given by the defense. Id. at 874 n. 15 The passage quoted by defendant (Def’s Br. 23) from Velasquez (Foster), 1 N.Y.3d at 49 — “[r]econstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant’s burden of showing that he was absent from a material stage of the trial” — is inapposite. The passage refers to the principle that, ordinarily, a defendant is not entitled to a reconstruction hearing unless he first presents substantial evidence of irregularity or reversible error, so as to rebut the presumption of regularity that attends judicial proceedings. In the instant case, the People do not rely on the presumption of regularity. Contrary to defendant’s suggestion (Def.’s Br. 21), the People are not asking the Court to presume anything. Here, reconstruction is appropriate because the evidence in the record clearly shows that an unrecorded proceeding took place before the court addressed the jury note on the record, and there is significant ambiguity in the record as to whether the court showed or read the note to counsel. Contrary to defendant’s contention (Def.’s Br. 21), the occurrence of the unrecorded discussion is not 16 refuted by the fact that the trial court did not explicitly state on the record that the off-record discussion had occurred. The court’s practice was to craft answers to substantive jury questions “together with the attorneys” (A 615). The record 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 (A 591-92, 597, 599- 600, 602). Although the trial court did not make an affirmative record of discussing the second two with counsel, the record reveals that court in fact did so. Defendant’s counsel made record reference to the court’s discussion of the second request at an unrecorded bench conference with counsel (A 597, 599-600). The third request for legal instruction was accompanied by a request for a read-back 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.) 17 When the court responded on the record to the note marked as Court Exhibit 9, its response reflected a prior unrecorded discussion with counsel about that note. In encouraging the jury to continue its after-hours deliberation if the jury believed it would be productive, the court characterized its response as an expression of the preferences of the court and the attorneys “as a group” (A 608). The judge, who ordinarily referred to himself as “I,” spoke as “we” (A 607-08). Counsel did not object. The judge could not have known counsel’s preferences in the absence of a prior unrecorded discussion with counsel. Defendant is also wrong to suggest, in reliance on Cruz, that there is no need for reconstruction, because a mode of proceedings error has occurred wherever an original unreconstructed record does not reflect meaningful notice of a substantive jury request (Def.’s Br. 15, 26). As the People previously explained (People’s Br. 54-58), a trial court’s neglect of its duty to make a contemporaneous record of meaningful notice is not itself a mode of proceedings error, and this Court will not assume a mode of proceedings error occurred where the record does not show it. In Cruz, this Court in fact 18 ordered a new trial based on substantial evidence of nondisclosure adduced at a reconstruction hearing. 14 N.Y.3d at 816. Nor is there any merit to defendant’s suggestion that reconstruction is inappropriate where the proceedings missing from the existing record could have involved mode of proceedings error (Def.’s Br. 23). This Court has never drawn such a distinction, and has long permitted reconstruction of proceedings where mode of proceedings errors could have occurred. See, e.g., People v. Linares, 2 N.Y.3d 507 (2004) (proceedings on demand for new counsel missing); People v. Ferguson, 67 N.Y.2d 383, 386-87, 389 (1986) (defense consent to mistrial unrecorded); People v. Mealer, 57 N.Y.2d 214, 219 (1982) (jury instructions missing); People v. Glass, 43 N.Y.2d 283, 285-87 (1977) (same); People ex rel. Baumgart v. Martin, 9 N.Y.2d 351, 353 (1961) (verdict of twelfth juror unrecorded). Defendant offers no sound reason why claims of lesser error should be decided on a record that reflects the relevant facts, while claims of the most fundamental error should be decided on assumptions. And, indeed, no sound reason exists. 19 Defendant’s final argument — that reconstruction is unlikely to succeed (Def.’s Br. 17-18, 24-26) — is legally immaterial and factually unfounded. It is not the People’s burden to show that successful reconstruction is guaranteed, but defendant’s burden to show that reconstruction is impossible. People v. Parris, 4 N.Y.3d 41, 47 (2004); Glass, 43 N.Y.2d at 286. One of the functions of a reconstruction hearing is the answer the question of whether reconstruction is feasible. People v. Rivera, 39 N.Y.2d 519, 523 (1976). Here, nothing suggests that reconstruction of the relevant unrecorded events or discussions preceding the court’s response to the note is impossible. Defendant has not established that everyone present at trial is either unwilling or incapable of assisting in reconstruction of the record. It is plausible that the final events of a highly-publicized trial for a monstrous crime would be remembered by at least some of people who participated in those final events. And 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 20 may be able to recall whether the court handed counsel the note during the unrecorded proceeding, or whether the court followed a practice of always showing jury notes to counsel. The record of defendant’s coram nobis motion includes affirmations by trial prosecutor and the trial judge detailing such facts eight years after the trial (People’s Br. 49 & n.6; Comp. 266, 268-69). 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, so that defendant’s O’Rama claim can be reviewed on a record that reflects the relevant events. CONCLUSION Therefore, and for the reasons stated in the People’s main brief, 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. 21 Dated: New York, New York February 8, 2018 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 reply brief, hereby certifies, pursuant to 22 N.Y.C.R.R. §§ 500.1(j) and 500.13(c), 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 3,789 words. Dated: New York, New York February 8, 2018 _________________________ HANNAH STITH LONG Assistant Attorney General