The People, Appellant,v.William Morrison, Respondent.BriefN.Y.March 20, 2018I STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL BARBARA D. UNDERWOOD SOLICITOR GENERAL ERICT. SCHNEIDERMAN ATTORNEY GENERAL CRIMINAL APPEALS & FEDERAL HABEAS CORPUS BI 'REAU October 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 request, pursuant to 22 N.Y.C.R.R. § 500.11(e), that the Court accept this letter reply in support of their appeal. A. The Jury Note Marked As Court Exhibit 9 Was Not Subject to C.P.L. § 310.30, Because the Inquiry It Contained Was Ministerial. Criminal Procedure Law § 310.30 and People u. O’Rama, 78 N.Y.2d 270 (1991), contrary to defendant’s contentions (Def. Ltr. 2, 4), apply only to jury requests for substantive instruction or information. They did not apply to the jury note marked as Court Exhibit 9. That note — which was received at the end of the first full day of deliberations and stated that the jury still “ha[d] a lot of work to do” and therefore was “[n]ot sure what to do” — sought direction from the court on a purely ministerial matter, whether to recess for the night. (See Peo. Ltr. 4-8, 11-12). There is no support for defendant’s theory that the note could reasonably be interpreted as a request for substantive instruction. 120 BROADWAY, NEW YORK, NY 1027I-0U2 •TEL. (212) 416-8729 • FAGS. (212) 416-8010 ‘NOT FOR SERVICE OF PAPERS The Honorable John P. Asiello October 16, 2017 Page 2 Section 310.30 and O’Rama have no application to ministerial requests. (See Peo. Ltr. 10-11.) By its own 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.” Thus, § 310.30 does not apply to ministerial requests, meaning requests that are wholly unrelated to the substantive legal or factual issues of the trial. People v. Ochoa, 14 N.Y.3d 180, 188 (2010); People v. Hameed, 88 N.Y.2d 232, 241 (1996). By extension, the procedures for responding to jury notes set forth in ORama, which interprets § 310.30, see ORama, 78 N.Y.2d at 276, apply only to “a substantive written jury communication.” People v. Nealon, 26 N.Y.3d 152, 161 (2015) (quoting ORama with emphasis); accord People v. Wallace, 27 N.Y.3d 1037, 1039 (2016)4 There is no merit to defendant’s 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 made a explicit request for an overnight recess, as it did in the notes marked as Court Exhibits 4 and 10. (Def. Ltr. 3-4.) But he overlooks the fact that those notes were responses to directives by the court to elect between specified options in regard to the overnight recess. On Wednesday night, the court directed jurors that, if at 4:30 PM they did not anticipate reaching a verdict by 4:45 PM, to send a note saying “we can’t reach a verdict today” and “we need more time,” and specifying 1 Defendant’s statement, in the heading of his first point (Def. Ltr. 2), that C.P.L. § 310.30 and O’Rama are “based on due process rights” is not entirely accurate. Section 310.30’s requirement of meaningful notice to counsel of a substantive jury request — the requirement at issue in ORama and here — protects the right to effective assistance of counsel. See People v. Mack, 27 N.Y.3d 534, 541-42 (2016); ORama, 78 N.Y.2d at 277, 279 n.3. Section 310.30’s requirement that the defendant be present for the court’s response to the jury — a requirement not at issue in ORama or here — protects a defendant’s due process right to be present during substantive supplemental jury instructions. See People v. Collins, 99 N.Y.2d 14, 17 (2002); People v. Cain, 76 N.Y.2d 119 (1990). The Honorable John P. Asiello October 16, 2017 Page 3 “what time [they] would like to come back tomorrow.” instructed that jurors could select a time between 8:30 AM and 10 AM. (RA582-83.) Jurors responded with Court Exhibit 4, stating that they would not be able to reach a complete verdict that day, and asking to resume deliberations at 9:00 AM the next day. (RA632.) The court 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 jurors to elect either to continue their deliberations for up to another hour, or to specify that they wished “to come back tomorrow to resume [their] deliberations” and “what time [they]’d like to start.” Jurors answered with Court Exhibit 10, stating that they did not believe they would reach a complete verdict within the next hour, and asking to resume deliberations at 10:00 AM the next day. By contrast, the court had given the jury no information about the Thursday evening break before the jury sent Court Exhibit 9. The jury sent the note after the accustomed 4:30 PM recess time passed without word from the court. Thus, the jury’s open-ended inquiry in Court Exhibit 9 reflected the fact that the court had not yet given the jury the type of explicit options that elicited the specific responses reflected in Court Exhibits 4 and 10. Defendant’s argument, then, casts no doubt on the ministerial nature of the jury’s inquiry in Court Exhibit 9. Indeed, defendant identifies no plausible substantive interpretation of the inquiry. B. The County Court Gave Defense Counsel Meaningful Notice of the Contents of Court Exhibit 9. Even if this Court were to conclude that Court Exhibit 9 contained a substantive request, no mode of proceedings error occurred here because, contrary to defendant’s arguments (Def. Ltr. 4, 6), the court provided meaningful notice of the note under this Court’s reasoning in People u. Mack, 27 N.Y.3d 534 (2016), and People v. Nealon, 26 N.Y.3d The Honorable John P. Asiello October 16, 2017 Page 4 152 (2015). Defendant’s reliance on People v. Silva, 24 N.Y.3d 294 (2014), and People v. Miller, 163 A.D.2d 491 (2d Dep’t 1990), in arguing to the contrary (Def. Ltr. 5-6) is misplaced. In Mack and Nealon, the Court explained that, in the jury note context, mode of proceedings errors are distinguished from other errors by the fact that they prevent counsel from objecting effectively to the trial court’s procedure or response in time to cure any deficiency. Mack, 27 N.Y.3d at 541-44; Nealon, 26 N.Y.3d at 159, 162. Reading the note into the record is one way, but not the only way, to give counsel meaningful notice. See O’Rama, 78 N.Y.2d at 278. Here, the court adopted an alternative notice procedure to protect the jury from media influence, and that procedure fully enabled counsel to object effectively to the court’s procedure and response. As explained in the People’s August 16 letter (Peo. Ltr. 15-16), the court’s on-record comments revealed that counsel knew that the note had been received and that the court intended to deliver Allen-type instructions and offer the jury the option of continued after-hours deliberations that night. Before it did so, the court informed counsel that it had marked the note as a court exhibit and would not read the note into the record. This alerted counsel to her need to read the note, if she were not already aware of its contents, and enabled her to object to the court’s procedure or response in time for the court to correct any error. Defendant identifies no way in which the trial court’s procedures might have compromised his counsel’s effectiveness. To excuse lack of preservation where, as here, counsel had full opportunity to object, would, as the Court explained in Mack, encourage counsel to remain silent in the face of error in order to secure automatic reversal in the event of a conviction. Mack, 27 N.Y.3d at 543-44. In Silva, this Court found a mode of proceedings error where, as defendant seems to concede (Def. Ltr. 5), the record contained no indication that the court or counsel were aware of the existence of the note, or that any discussion of the note occurred off the record. (Peo. Ltr. 22.) Silva’s counsel, unlike defendant’s counsel, could not effectively The Honorable John P. Asiello October 16, 2017 Page 5 object to lack of notice of, or lack of judicial response to, a note of which he was unaware. In Miller, where the Appellate Division found error, defense counsel was likewise unable to effectively object to the court’s response. As in O’Rama, the trial court affirmatively denied counsel’s request for disclosure of the contents of the deadlock note, thus denying counsel the ability to effectively object to the court’s response. 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. If the Existing Incomplete Record Does Not Establish Meaningful Notice of a Substantive Jury Request, a Reconstruction Hearing is Appropriate. C. Should this Court determine that the existing incomplete record does not show meaningful notice of a substantive jury request, this matter should be remitted to the County Court for a reconstruction hearing. Defendant does not dispute existence of an unrecorded proceeding regarding the note and the court’s intended response. Instead, he takes the position that whether or not the court actually gave counsel meaningful notice of the note’s contents is irrelevant, because “a record establishing proof of notice was not made.” (Def. Ltr. 7.) However, defendant offers no support for his view that imperfect contemporaneous record-making is a mode of proceedings error. It is not. ( See Peo. Br. 21.) A hearing to reconstruct the relevant underlying events is appropriate. See People v. Rivera, 39 N.Y.2d 519, 523 (1976). Defendant’s speculation that reconstruction ten years after his trial is “not practical” (Def. Ltr. 7) does not show that a reconstruction hearing would be futile. In People v. Glass, the Court held that reconstruction of summations and the court’s jury charge could not be assumed impossible, The Honorable John P. Asiello October 16, 2017 Page 6 even though “the existence of harmful error in a charge may at times turn on words of art or the exact phrasing in which it occurred.” 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 was disbarred and unbeatable, 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 he, his trial counsel, the prosecutor, court personnel, others present during trial, or, for that matter, the Trial Judge were not willing and capable of aiding in the reconstruction of a substitute record.” People v. Yavru-Sakuk, 98 N.Y.2d 56 (2002) (quoting People v. Glass, 43 N.Y.2d 283, 286 (1977)).2 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 Court Exhibit 9. (See Peo. Ltr. 8.) Defense counsel and court personnel may also be able to recall whether the court handed counsel the note during the unrecorded proceeding. The judge and court personnel may recall whether or not the court followed a practice of always handing jury notes to counsel. If reconstruction shows that the court handed the note to counsel, there will be no need to try to 2 Defendant has made no effort to fulfil 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. “A defendant who does not proceed diligently is open to the suspicion that he thinks the likelihood of really finding significant appellate issues remote — and would prefer failure in reconstructing the proceedings to success, hoping to claim prejudice when reconstruction proves impossible.” Id. The Honorable John P. Asiello October 16, 2017 Page 7 reconstruct “discussions of the specifics of Court Exhibit 9,” as defendant fears (Def. Ltr. 7). 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. 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 / / /} A y Hi/By: ftnnah Stith Lon 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 reply 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 2,028 words. Dated: New York, New York October 16, 2017 jl/hjL //!ÿÿ'> HANNAH STI'TH I/)NG Assistant Attorney General