The People, Respondent,v.Mark Nonni, Appellant.BriefN.Y.March 20, 2018OFFICE OF THE DISTRICT ATTORNEY, Bronx County DARCEL D. CLARK Dis1ricc Allorne:; 198 East 16lst Street Bronx, New York 10451 September 15,2016 The r lonorable Judges of the Court of Appeals Court of ~\ppeals 20 Eagle Street Albany, NY 1?.207-1095 Your Honors: Re: People v. 1\llark Nanni APL-2016-00076 People v. Lawrence Park.er APL-2016-00050 Phone: (718) 838-6239 Fax: (718) 590-6523 The People submit this letter in opposition to defendants' submissiom in the above- referenced appeals, the merits of which this Court has designated for summary review under Rule 500.11 of the Court's Rules of Practice. PRELIMINARY STATEMENT By permission of the I Ionorable Sallie Manzanet-Daniels, Justice of the Appellate Divi- sion, First Department (hereinafter '~ppellate Division"), defendants appeal from an order of the Appellate Division rendered on ~ovember 5, 2015, which affirmed, by a three justice major- ity, a judgment of the Supreme Court, Bronx County (Moore, J at hearing; Stadtmaucr, J at tri- al), convicting defendants Mark Nanni and Lawrence Parker, following a jury trial, of Robbery in the Second Degree (Penal I .aw § 160.10[1]), and sentencing each dcfenJant, as a mandatory persistent violent felony ofkndcr, to an indeterminate term of incarceration of from twenty years to life. Dcfcndant::; now raise the following issues: (1) whether the i\ppc.:llatc Division properly upheld the suppression court's ruling that the pursuit and seizure of clcfcnclants was lawful and (2) whether taking the verdici after the jury implicitly rescinded two outstanding notes was error. Contrary to deCendams' assertions, the Appellate Division applied the correct legal standard in rejecting defendant!'' suppression claims. Since the j\ppcllate Division applicJ the correct legal standard and the record supports its determination that defendants were properly seized, this Court rnay not disturb the i\ppellate Division's rc~solution of the mixed tluestion of 1 law and fact that defendants' claims present. Moreover, defendant Nanni's contention that the officers had no basis to search inside his pockets or open three envelopes found therein, is un- preserved. Furthermore, contrary to defendants' newly-minted assertions, the trial court's han- dling of the jury notes did not constitute a mode of proceedings error. STATEMENT OF FACTS FACTSADDUCEDAT THE WADE/ D UNAWAY/MAPPHEARING On .January 21, 2008, at 9:30 a.m., officers Delaney, Lemp, Fratertigo, Bala~tl Mar- tinez, along with Sergeant Morales received a .radio-run of a burglary in progress at- Coun- try Club Road (Fraterrigo: H. 81). The radio-run did not contain any information regarding the appearances or number of individuals involved (Delaney: H. 21, Fraterrigo: I I. 81 ). While en route to the location the officers did not observe any people walking or driving in the area (Fra- terrigo: H. 84, 96). Indeed, the Country Club area of the Bronx is a residential community with a few interspersed commercial country clubs, and it would be unusual to see persons from the area outside at that time, as they would either already be at work or in school. Approximately five minutes after receiving the radio-rw1, the officers-in two marked police vehicles and one unmarked car- converged on Country Club Road (Fraterrigo: H. 83). As they approached, the officers looked for • Country Club Road but realized they had passed the location (Delaney: H . 65). !-hiving "overshot" the location, the officers parked their vehicles just south of - Country Club Road (Delaney: H. 20), closer to Polo Place (Fra- terrigo: H. 101 ), and began to look around for the exact address (Delaney: J-1. 21 ). The exact ad- dress was not very clearly marked (Delaney: H. 64-65), and the buildings that comprise - Country Club Road- a multiple-dwelling yacht club-sit approximately 80 feet off the public road at the end of a long private driveway (Delaney: H. 19, 45-47). The driveway itself is sur- rounded by fences (Fraterrigo: H. 92-93) and is closed off at the front-end by a gate marked with the address (Delaney: H. 21, 65, 66, Fraterrigo: H. 84). As soon as the officers noticed the address marked on the front gate, they saw two indi- viduals behind the gate-approximately thirty feet from the building's entrance- walking away from the building and up the private driveway towards Country Club Road (H. 62, 64, 68, 72, Fraterr.igo: H. 84, 93). There were no other individuals in the entire area (Delaney: H. 53, 57). When the two individuals were about forty feet away from the officers, who had not walked be- yond the front gate (Delaney: H. 66), Officer Martinez told them to stop and that they "were police officers and wanted to ask them a question" (Delaney: H. 23). The two individuals con- tinued to walk until they were about twenty feet away from the officers, at which point Officer Martinez again stated "please, stop, we want to ask you a question" (Delaney: H. 23- 24, 53). Defendant Mark Nonni began to run towards Country Club Road and Campbell Drive (Delaney: H. 49, 53). The officers were just south of the front gate and were unable to block Nonni's path (Delaney: H. 72-73). Officers Delaney, Lemp, and Martinez pursued Nonni ap- proximately one-hundred and fifty yards until Officer Martinez caught him on the southwest corner of CampeD Drive and Country Club Road (Delaney: H. 36). Officers Delaney and Lemp 2 tackled Nanni, and Officer Lemp was cut by a foot-long serrated knife that had torn through the black backpack worn by Nanni (Delaney: H. 27-27A, 55). Officer Delaney then put Nanni face-down on the ground and placed him in handcuffs because he was striking the officers and flailing (Delaney: H. 26, 54, 59). At that point, Nonn.i was placed under arrest (Delaney: H. 53). Officer Lemp searched Nonni at the arrest location and recovered a butcher knife, a little knife, and a roll of duct tape from Nanni's backpack, as well as three bank deposit envelopes with orange highlighting each containing $1,000 from his back left pocket (Delaney: H. 30-31). The officers then walked Nonni back to the parked police vehicles where the complainant iden- tified him as one of the perpetrators of the burglary (Delaney: H. 37- 38). At the same time Nanni began to run, the other individual, defendant Lawrence Parker, began moving at a hurried pace and briskly walked across the street and into the front lawn of 3338 Country Club Road (Fraterrigo: H. 85, 94, 102). Officer Fraterrigo, accompanied by Of- ficer Balaj, pursued Parker across the street and told Parker to stop (Fraterrigo: H. 85). Officer Fraterrigo caught up to Parker and observed a sledgehammer inside an unzipped red backpack worn by Parker. Officer Fraterrigo then grabbed Parker's hands but Parker struggled-moving his arms, hiding his hands, and flailing- and Balaj assisted in cuffmg him (Fraterrigo: H. 85-86). Officer Fraterrigo then searched Parker's backpack and recovered a crow bar, as well as a small steak knife from Parker's front right coat pocket (Fraterrigo: H. 87). The complainant came out while officer Fraterrigo's back was turned and yelled that Parker was "the guy" while pointing at Parker (Fraterrigo: H. 89). THE COURT'S RULING In a Decision and Order dated April 5, 2010, the court (Moore, J.) credited the testimony of Officers Delaney and Fraterrigo and found that the police officers acted lawfully .in stopping and detaining defendants Qudgment Roll: Decision and Order). Their initial request for defend- ant Nanni to "stop" so they could "ask a question" was proper in light of the two men's pres- ence on the exact property where a burglary was purportedly in progress (Id. at 13). The court ruled that the officers' initial request for defendants to stop did not constitute a seizure because they had a common law right of inquiry (lei.). Defendants' subsequent flight elevated that com- mon law right of inquiry to reasonable suspicion, thereby "justifying the pursuit and seizure" (Jd.). The court also held that the subsequent search of defendants was "justified and lawful" (ld .). The victim's identification of defendant was ruled as spontaneous and, based on that iden- tification, police had "requisite probable cause to effectuate defendant's arrest" (Td.). Defendants' motions to suppress were denied in their entirety. 3 THE TRIAL On January 21, 2008, at approxi~ 9:15 a.m., Robe.rc Ederle and his wife, Anne Ederle. were inside of their apartment ~tt - Country Club Road in the Bronx (1\ . Ederle: T. 81; R. Ederle: 190, 235). Their apartment is part of the Westchester County Country Club (here- inafter "the club"), a private club for homeowners living in the Country Club section of The Bronx (A. Ederle: T. 40-41, 44-45, 102-1 03; R. Ederle: T. 190, 199-200). The club is set in a resi- dential area along the water with little commercial activity (A. Ederle: T: 40, 101; R. Ederle: 188, 190-192, 326, 336-338; Delaney: T. 507). Mr. and Mrs. Ederle served as the "caretakers" of the club and, in addition to a small salary, received a rent-free apartment located in the same building as the club (A. Ederle: T. 41-42,90, 92-93; R. Ederle: 190, 197-199). As the "caretakers" of the property, the Ederles performed janitorial duties such as cleaning and maintenance of the prop- erty (R. Ederle: T. 197). The main features of the club include a bar where members and their guests can have a drink, and a catering room that is available for rent (A. Ederle: T. 43, 45, 103; R. Ederle: T. 200). Since the water became polluted, membership declined and the club had fallen into poor financial straits (R. Ederle: 201). In 2008, Mr. Ederle served as the club's bartender and, in an effort to "drum up business," organized several football pools at the bar (A. Ederle: T. 44, 78, 93, 112; R. Ederle: T. 197-198, 201-202, 376, 382). Those football pools ranged in price from anywhere between $10 per box and $10,000 per box. Each pool consisted of 100 boxes, making a $10 pool worth $1000 in prize money and the $10,000 pool worth $1,000,000. The various pools were placed on oak boards and displayed in the bar (A. Ederle: T. 112-115, 135-136; R. Ederle: T. 202-203, 206, 232, 342). Fearing a robbery, Mr. Ederle did not keep the cash for the pools in the club (R. Ederle: T. 205, 300, 351-352). Although Mr. Ederle ran these pools in the bar, neither the club nor the bar received an automatic percentage of the winnings, but Mr. Ederle was accustomed to receiving a voluntary tip from the winner (A. Ederle: 143-144; R. Ederle: T. 206-207, 348-349, 385). On Friday night, January 18, 2008, at approximately 8:00p.m., a woman entered the bar and identified herself as "Samantha Sanchez" (A. Ederle: T. 54-55, 109, 182; R. Ederle: T. 207- 209). 1 Prior to that night, Mr. and Mrs. Ederle had never seen this woman, but she claimed to have a member reference and was interested in renting the catering room (A. Ederle: T. 76, 109; R. Ederle: T. 208-209, 359). Pursuant to that conversation, Mrs. Ederle escorted Mrs. Sanchez upstairs to show her the room and explained that it could hold a maximum of 100 people (A. Ederle: T 56,70-71, 167; R. Ederle: T. 210-211). After showing her the room, Mrs. Ederle brought Mrs. Sanchez back downstairs to the bar and Mr. Ederle handed her a business card attached to a price list (A. Ederle: T 71-72; R. Ederle: T 210-221, 354-356, 358; People's 46: Flyer and business card). Mrs. Sanchez took the paper and left the bar. Once outside, the Ederles observed Mrs. Sanchez turn the opposite direc- 1 "Samantha Sanchez" was later identified as Pamela Williams and indicted under Bronx Co. Ind. No. 4415/2009 for Conspiracy in the Fifth Degree based on her participation in this robbery. On August 19, 2010, Ms. Williams pled guilty to Disorderly Conduct, in full satisfaction of the in- dictment, and received community service and a conditional discharge. 4 cion from where she had entered the bar, which they thought strange since that direction re- quired her to make almost a complete loop of the dub to return to the driveway (A. Ederle: T. 72-73, 185; R. Ederle: T. 221, 358-360). Within two minutes of leaving, Mrs. Sanchez called the bar and spoke with Mr. Ederle about making arrangements for her husband to see the catering room. An appointment was made for "Mr. Sanchez" to come to the club on Monday morning, January 21, 2008, at 9:30a.m. (A. Ederle: T. 74, 109-110; R. Ederle: T. 222-225). In the interim, on Sunday, January 20, 2008, there was a playoff game between the Green Bay Packers and New York Giants (A. Ederle: T. 77; R. Ederle: T. 225-226). That night, Mr. Ederle was busy bartending at the club, and there were several football pools in play for the game. Those pools, as well as the $1,000,000 Super Bowl pool, were displayed on the wall inside the bar (A. Ederle: T. 77-78, 111; R. Edcrle: T. 225, 232). At approximately 8:00 p.m., Anthony Devita walked into the bar, and Mr. Ederle recognized him as a patron at a bar where Mr. Ederle had previously worked.2 Mr. Devita stayed for approximately ten minutes and then left the bar. Approximately ten minutes later, he returned to the bar and stayed for another ten minutes be- fore leaving again (A. Ederle: 77-80; R. Ederle: T. 225-227, 231-234).3 On Monday morning, January 21, 2008, at approximately 9:20 a.m., Mr. Ederle left his apartment and went to the club for his meeting with "Mr. Sanchez" (A. Ederle: T. 81; R. Ederle: T. 235-236, 238, 272). When Mr. Ederle opened the front door of the club, he saw Parker and Nonni walking up the driveway toward the club house (R. Ederle: T. 236-240, 242, 244, 272, 362, 364-365; People's 13: Photograph of the side exit; People's 35: Photograph of the driveway). As Mr. Ederle watched the two men get closer, he saw that Parker was holding the price list with the dub's business card that Mr. Ederle had previously given to Samantha Sanchez (R. Ederle: T. 236-239, 244, 321 -324, 364; People's 46: Flyer and Business Card). Believing that Parker was Mr. Sanchez, Mr. Ederle greeted Parker and Nanni, brought them inside the dub, and up the stairs to the catering room, which was directly above the Ederle's apartment (R. E derle: T 237-239, 246-247, 274-275; People's 19: Photograph of the stairs; People's 21: Photograph from the top 2 Mr. Devita was later arrested and charged, under Bronx Co. Docket No. 2009BXOS8816, with Robbery in the Second Degree (Penal Law §§160.10[1) and [2)[a] and [3]); Robbery in the Third Degree (Penal Law §160.05); and Conspiracy in the Fourth Degree (Penal Law §105.10[1]), based on his participation in this robbery. On September 24, 2009, he pled guilty under SCI No. 3069/2009, to fourth-degree conspiracy and received three years of probation. 3 At trial, the People's theory was that Pamela Williams (a.k.a. Samantha Sanchez) set up the appointment for her husband to see the party room as a ruse to give Parker and Nonni access to the club (T. 813). Pursuant to that theory, Anthony Devita came to the bar on January 20, during a big game, to do reconnaissance on the football pools (T. 81 4-1 5) . This theory was proven through the introduction of phone records showing that on January 18, 2008, Parker received a phone call from the telephone registered to Anthony Devita at approximately 8:00 p.m., shortly after Samantha Sanchez had gone into the bar and set up an appointment for Monday morning (f. 815-81 SA). The phone records also showed that a call was placed from Anthony Devita's cell phone to Parker's cell phone on Sunday night, January 20, 2008 at approximately 9:10p.m., which corresponded with the time Mr. Devita was inside the bar and stepped out for ten minutes. Finally, the records showed that on January 21, 2008, a call was placed from Nonni's cell phone to Anthony Devita's cell phone at approximately 9:35a.m., during the robbery (T. 815). 5 of the stairs; People's 22: Photograph of the hall). While Mr. Ederle showed them the room, Parker and Nonni were constantly positioning themselves so that Mr. Ederle was not able to see both men at the same time (R. Ederle: T. 247-248, 279-280). Suddenly, as Mr. Ederle moved closer to Parker, Parker yelled out, "Now!" and pulled a black handled steak knife from his backpack (R. Ederle: T. 249-250, 281, 291, 395; People's 39: Photograph of Parker's knife). As Parker moved closer with the knife pointed at Mr. Ederle's torso, Mr. Ederle used his forearm to strike Parker, causing him to fall back (R. Ederle: T. 250, 281-282, 291, 395-396, 398, 438). Mr. Ederle then "spun around" and saw Nonni pointing a fourteen inch knife at Mr. Ederle's lower back, near his kidney. With the knife in his hand, Nonni said, "Don't move motherfucker. I'll kill you" (R. Ederle: T. 252-253, 281-282, 291, 293- 294, 399-400; People's 38: Photograph of Nanni's knife; People's 49A: Nanni's knife). Mr. Ederle immediately put his hands in the air and Nonni said, "Where's the money motherfucker? We want the football pool money. \V'here's your wife?" (R. Ederle: T. 253, 295). Nonni then told Mr. Ederle to lay on his stomach on the floor, which he did, with his face pressed into the rug. Parker then got on top of Mr. Edcrle and straddled Mr. Ederle's neck between his legs (R. Ederle: T. 254-255, 294-295). Mr. Ederle told the men that he could not breathe and Parker told him to "put [his] hands behind [his] back, don't move, I'll kill you" (R. Ederle: T 255, 295). Parker then held a knife to the back of Mr. Ederle's neck, causing several scratches, while Nonni used duct tape to bind Mr. Ederle's wrists behind his back (R. Ederle: T. 255-256, 289, 291, 296-297, 438, 441-442; People's 10: Photograph of scratches on Mr. Ederle's neck; People's 29: same; People's 48A: Knife Parker held against Mr. Ederle's neck). With his hands bound, Parker and Nanni again asked Mr. EderJe for the money from the football pools, and Mr. Ederle told them it was in a room downstairs (R. Ederle: T. 255, 295). Parker removed the knife from Mr. Ederle's neck and Nonn.i held his knife against Mr. Ederle's kidney area and told him to stand up (R. Ederle: T. 297). Once standing, Nanni placed a "rag" in Mr. Ederle's mouth, secured it with duct tape, and told Mr. Ederle they were all going downstairs to get the money (R. Ederle: T. 297 -298). With Nonni holding a knife to his kidney area, Mr. Ederle led the men downstairs to a storage room where Mr. Ederle had $3000 in cash hidden in a metal soda canister (R. Ederle: T. 297-299, 301-303, 366, 379, 405, 421; People's 15: Photograph of storage room; People's 16: Photograph of soda canister; People's 49A: Knife Nonni held to Mr. Ederle's kidney area). The money was in three separate envelopes, each containing red markings and $1000 (R. Ederle: T. 315-319, 366; People's 36: Photographs of the envelopes; People's 37: Photograph of envelopes and money). Mr. Ederle showed Nonni where the money was hidden and Nonni entered that storage room and removed the three envelopes containing the cash from the soda canister (R. Ederle: T. 303,317,319, 379):1 Nonni then spoke to someone on the telephone, saying, ''We got it, that's all there is" (R. Ederle: T. 303-304). Parker and Nonni then told Mr. Ederle to kneel on a recliner in the adjoining room. Once kneeling on that recliner in the inclined position, Mr. Ederle's feet were bound above his ankles with duct tape, and Parker threw a comforter over Mr. ~ On cross-examination, Mr. Ederle admitted that he did not "actualJy see Nonni with the $3,000" (R. Ederle: T. 414). 6 Ederle's body (R. Ederle: T. 303-307, 367, 400, 433, 435; People's 12: Photograph of Chair; Peo- ple's 44: Photograph of duct tape). Once Mr. Ederle was covered, the room went silent. After a few seconds, Mr. Ederle said that he had another $500 and, getting no response, threw himself off the chair and removed the comforter from his body (R. Ederle: T. 308-309, 367). Parker and Nonni were gone. Mr. Ederle quickly freed his hands, but when the duct tape wouldn't come loose around his ankles, he "kicked and pushed" his pants off and ran to the apartment (R. Ederle: T. 309, 367-368).5 Meanwhile Mrs. Ederle, who had been lying awake in bed when Mr. Ederle left minutes earlier, heard three sets of footsteps above her in the catering room (A. Ederle: T. 81-82, 109, 115, 164-165, 170). Only expecting to hear two sets of footsteps (Mr. Ederle and Mr. Sanchez), Mrs. Ederle thought it strange that there was an extra set of feet. As she listened, she heard a loud thud in the catering room (A. Ed erie: T. 81-82, 109, 11 5, 146, 170). After hearing this loud thud, Mrs. Ederle became very nervous and frightened but, not wanting to overreact, did not immediately call the police. Instead, Mrs. Ederle called Mr. Ederle's best friend and neighbor, Joe Cotter, who told Mrs. Ederle to hang up and call the police, and that he was on his way to the clubhouse (A. Ederle: T. 82-85, 116-117). Mrs. Ederle then called 911 and, within approximately five minutes, :tv1r. Cotter arrived at the apartment (A. Ederle: T. 85-86, 116, 145, 162). As Mrs. Ederle and Mr. Cotter waited in the kitchen, Mr. Ederle arrived at the aparunent and was very agitated (A. Ederle: T. 87, 121, 147; R. Ederle: T. 309, 368). Mr. Ederle then grabbed his keys and a softball bat, and he and Mr. Cotter left the aparunent (A. Ederle: T. 87-89,1 19,121, 147; R. Ederle: T. 309-310,368-369, 410). Back on Country Club Road, Police Officers Peter Dehtney, Joseph Lcmp, and Sgt. Mo- rales, of the 45 Precinct Anti-Crime Unit, as well as Police Officers Martinez, Nlichael Fraterri- gQ, and Daniel Balaj, arrived within the immediate vicinity of - Country Club Road pursuant to a radio run of a "burglary in progress" (Fraterrigo: T. 454-456, 483; Delaney: T. 504-507; Lemp: T. 567-568). Having passed the location by "a couple of houses," the officers exited their vehicles and stood outside looking for the exact address (Fraterrigo: T. 458, 461; Delaney: T. 508; Lemp: T. 569). As they were looking, they observed Parker and Nonni walking up the driveway of the location, away from the clubhouse and toward the street (Fraterrigo: T. 459-461, 474-475, 482, 489; Delaney: T. 509-510, 530; Lemp: T. 570-571; People's 30: Photograph of driveway). G Other than Parker and Nonni, there was no other pedestrian traffic in the area (Fra- terrigo: T. 478, 486). Parker was wearing a tan coat and carrying a red backpack, and Nonni was wearing a black jacket and carrying a black bag (Fraterrigo: T. 463, 468, 470; Delaney: T. 512, 515, 517, 537; Lemp: T. 604; People's 48B: Parker's red backpack; People's 49B: Nonni's black backpack; People's 50: Parker's arrest photograph; People's 51: Nonni's arrest photograph). Ac- cording to Police Officer Fraterrigo, Parker and Nonni were approximately twenty or twenty-five 5 On January 21, 2008, at approximately 12:05 p.m., Police Officer Kegharn Jarjokian, of the NYPD Evidence Collection Team (ECT), arrived at the crime scene and collected three pieces of duct tape that were lying among a blanket and a pair of pants Qarjokian: T. 628-636, 643, 657; Peo- ple's 40, 44, 55A, and 56) . Those three pieces of duct tape were sent for DNA analysis, with nega- tive results Qa rjokian: T. 645, 661 -(J65) . 6 The llumhers - are dispb1yed on a sign outside of the premises on Count1-y Club Road (Delaney: T. 529). 7 yards away from where Officer Fraterrigo was standing when he saw them walking up the driveway (Fraterrigo: T. 487-488). As Parker and Nonni were walking up the driveway of the location, Officer Martinez called out to them, "Police. Come over here, we want to ask you a question" (Fraterrigo: T 461, 488; Delaney: T. 510; Lemp: T. 570). Parker and Nonni did not stop walking or acknowledge the officers. The officers started walking toward Parker and Nonni and, again, Officer Martinez called out for them to stop walking. With the officers moving closer, Nonni took off running up the driveway, turning right on Country Club Road and running toward Campbell Drive (Frater- rigo: T. 462, 474; Delaney: T. 510-511,532, 538; Lemp: T. 570, 586). After Nonni ran, Officers Martinez, Delaney, and Lemp chased after him while Officers Fraterrigo and Balaj followed Parker, who had "elevated his pace" across the street to 3338 Country Club Road (Fraterrigo: T. 462). Once he caught up to Parker, Officer Fraterrigo saw a sledgehammer inside Parker's open and unzipped backpack (Fraterrigo: T. 463, 469, 471; Peo- ple's 48B: Parker's red backpack; People's 48C: Sledgehammer). Parker then flailed his arms try- ing to avoid being handcuffed (Fraterrigo: T. 463). Once in handcuffs, Officer Fraterrigo looked inside Parker's unzipped, open backpack and, in addition to the sledgehammer, saw one crowbar. During a search of Parker's person, Officer Fraterrigo recovered a knife from his coat pocket (Fraterrigo: 464, 469-470; People's 48A: Knife recovered from Parker's coat pocket; People's 48D: Crowbar). While Officer Fraterrigo was standing with Parker on the lawn of 3338 Country Club Road, he heard a man yell, "That's him! That's the motherfucker who did it!" (Fraterrigo: T. 465). When Officer Fraterrigo turned around, he saw Mr. Ederle standing in the street pointing at Parker (Fraterrigo: T. 465). Officers Martinez, Delaney, and Lemp caught up to Nonni on the corner of Campbell Drive and Country Oub Road where he was eventually placed into handcuffs (Delaney: T. 511- 12, 538, 546-547, 565; Lemp: T. 570, 587-588, 598-600). After getting cut by a knife protruding from Nanni's backpack, Officer Lemp searched the backpack and recovered a long serrated knife that was poking out of the bag, another knife, and a roll of duct tape (Delaney: T. 512-517, 519; 538; 552-555, 557; Lemp: T. 572, 574-575, 591, 593; People's 49A: long serrated knife; People's 49B: black backpack; People's 49C: knife recovered from Nanni's bag; People's 49F: roll of duct tape). Additionally, Officer Lemp recovered three envelopes from Nonni's back pants pocket each containing red markings and $1000 in cash, and a cell phone (Delaney: T. 520, 558; Lemp: T. 572-573, 577; People's 36: three envelopes; People's 37: photograph of the enve- lopes and the money). Officers Martinez, Lemp, and Delaney then walked Nanni back to the location where Mr. Ederle was standing in the midclle of the street, pointing at Nonni and yell- ing, "That's the other guy!" (R. Ederle: T. 313, 444; Fraterrigo: T. 468; Delaney: T. 521; Lemp: T. 575-576, 602-603). Robert Ederle identified the three envelopes and their contents as the en- velopes and money that were removed from the soda canister in the storage room (R. Ederle: T. 316-319; People's 36 and 37). Renada Lewis, the custodian of records at Verizon Wireless, authenticated phone records for cell phone numbers registered to Parker and Anthony Devita. Certified records showing the subscriber information from Sprint/Nextel were admitted for Parker's cell phone. According to 8 these records, two calls were made between Anthony Devita's cell phone and Parker's cell phone on January 18, 2008 at 8:07 p.m., and 8:08 p.m. Again, on January 20, 2008, the records show that a cellular phone call was made between Anthony Devita and Parker at approximately 9:10 p.m. Finally, on January 21, 2008, at approximately 9:35 a.m., the records show that there was a phone caU placed between Nonni and Anthony Devita (Lewis: T. 676-677, 679-680, 683, 689- 690,692,697-698, 705; T. 722, 733-742; People's 57; People's 58; People's 59). DEFENDANTS' APPEAL TO THE APPELLATE DIVISION On appeal before the Appellate Division, First Department defendant Nonni argued that the court erred in fmding that the police had the requisite suspicion to stop and arrest him. As set forth in the relevant point headings, defendant contended that the officers had insufficient cause to stop Nonni, that his flight did not create reasonable suspicion to justify pursuit, that there was no probable cause to arrest and search him after he was stopped, and that at best, of- ficers had only a level one right to request information (Nonni App. Brief at .ii). In response, the People asser ted that the police had a common law right to inquire when they observed Nonni, in a desolate area, in the private driveway of the exact location where a reported burglary was reported five minutes earlier. The People elaborated that the officers had the right to approach and inquire whether the two men were victims, witnesses, or suspects of the burglary, and that the use of the word "please" and phrase "we want to ask you a question" would not lead a reasonable person to believe that the police were placing a significant limitation on his freedom. The People then argued that N onni's flight, coupled with his presence on pri- vate grounds at the location of the burglary, gave rise to reasonable suspicion sufficient to justify Nonni's detention. The People again responded to Nonni's argument by focusing on his pres- ence on the private driveway of the exact location where the burglary occurred. Finally, the People argued, the use of handcuffs was justified under either of two theories: (1) Nonni was under arrest for attempted assault on an officer, or (2) after an officer had been cut by a knife in Nonni's backpack, handcuffs and a search of the offending backpack were necessary due to a legitimate concern for safety. On appeal before the Appellate Division, First Department defendant Parker argued that, at all times, the police exceeded the permissible level of intrusion. As set forth in the rele- vant point headings, Parker contended that he was quietly walking down the driveway of a commercial establishment on a weekday, in an unsuspicious manner, and that police had nothing more than an objective, credible reason to request information (Parker App. Brief at 27). Nota- bly, Parker argued that, unlike Nonni, he did not run. Instead, Parker argued, he walked briskly and did not actively flee from the officers. Parker emphasized this distinction to prove that the officers did not have the authority to chase him. In response, the People, as they had done with Nonni, asserted that the police had a common law right to inquire when they observed Parker in the private driveway of the exact lo- cation where a reported burglary was reported five minutes earlier. Again, the People empha- sized the lack of anyone else in the vicinity, the cxoc111ess of Parker's locations and the private na- ture of the driveway. Where the People's argument differed, however, was to point out that 9 "speed" is not the defining characteristic of "ilight." The People also emphasized the role that the in-plain-view sledgehammer played in justifying Parker's detention. The Appellate Division considered and rejected both defendants' suppression arguments in a single opinion and held that the judgments of the Supreme Court, Bronx County should be affirmed. The court initially stated its ultimate conclusion that "each of the successive police actions at issue was justified by the requisite level of suspicion." People v. Nonni, 135 AD3d 52, 54 (1st Dept 2015). Immediately thereafter, the Court described the specific facts justifying the ini- tiallevel-two common-law inquiry: Five minutes after receiving a radio run reporting a burglary in progress, the police responded to the location. This was a private, gated country club, and the police were aware that it was the specific location mentioned in the radio message ... [t]he police saw defendants on the club's private driveway, walking toward the street, while carrying bags, and no one else was present. ... defendants were not walking on a public thoroughfare in the vicinity of the reported burglary ... they were walking dO\.vn the private driveway leading to the street from the premises reported just five minutes before to have been burglarized, with no one else in sight. Id. at 54-55. Continuing, the Appellate Division recounted that "the police did not exceed the bounds of a common-law inquiry when they requested defendant's to stop so that the police could 'ask them a question"' Id. at 56. After refuting the dissent's interpretation of the facts, the court analyzed defendants' ilight: Under all the circumstances, the record supports the conclusion that both defendants 'actively fled from the police; rather than exercising their 'right to be let alone ... [and] [d]efendants' ilight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention. Id. at 57. The court went on to distinguish the cases cited by the dissent "in which flight from police was held insufficient to give rise to reasonable suspicion." Id. at 57. Having already specifically recounted the facts supporting each level of police intrusion, the Appellate Division additionally commented that the protruding knife and visible sledge- hammer justified "the use of handcuffs to secure [defendants]" and an "immediate and protec- tive search" of each defendant's bag and person. Id. at 58. Finally, the court considered and re- jected defendant's remaining suppression arguments, as well as Nonni's ineffective assistance of counsel claim and Parker's challenge to the Sandoval ruling. !d. at 58- 59. Justices Rosalyn Richter and Sallie Manzanet-Daniels dissented, on the basis that, at best, the officers were justified in conducting a level one request for information. The Appellate Division had no opportunity to consider defendants' O'Rama arguments, as neither defendant raised the issue in their submissions. 10 ARGUMENT There is Adequate Record Support to Sustain the Appellate Division's Conclusion that all Police Action was Justified. Defendants claim that the suppression court erred in finding that police had the requisite suspicion to stop and arrest them. Defendants' claims are unreviewable, and in any event, the police acted at all times with the requisite suspicion necessary to justify their attempted inquiries, pursuit, detention, and eventual arrest. For these reasons, defendants' claims must be denied and the decision of the Appellate Division must be affirmed. Preliminarily, defendants' suppression claims are unreviewable mixed questions of law and fact. Whether the circumstances of a particular case give rise to a founded or reasonable suspicion presents a mixed question of law and fact that is beyond this Court's review if the de- termination has record support. See People v Fletcher, -NY3d-, 2016 NY Slip Op 05883 (2016); see also People v Pines, 99 NY2d 525, 527 (2002). In other words, the dispositive issue is "whether there was evidence at the suppression hearing to support the hearing court's determination." People v Cmtro, 68 NY2d 850, 850 (1986). If such support exists, this Court's review must end, even where "different conclusions may have been reasonable at the fact finding level." People v IV/illicllll, 19 NY3d 891, 893 (2012); see also People v Alexander, 37 NY2d 202, 204 (1975) ("where more than one inference may be drawn from the facts, the question of probable cause is primar- ily one of fact, and this court has no power to review factual determinations"); People v Harrison, 57 NY2d 470, 479 (1982) ("because reasonable minds could differ as to the inferences and thus as to whether the police action was justified, further review by this court is precluded"). Here, where reasonable minds could differ but record support exists for the suppression court's de- termination, the judgment must be affirmed. Indeed, Nanni's arguments are premised upon a version of "facts" utterly at odds with those found, based on record support, by the Appellate Division. For example, Nonni strains mightily to classify the private driveway as being located in a "massive, commercial property" in an "urban" area where "hundreds of innocent people" could have been congregating (Nonni SSM 15). It is only upon this faulty factual premise that defendant can argue that the police did not have the requisite suspicion to stop him at the very premises that had just been burglarized. However, the Appellate Division concluded instead that the defendants were apprehended in a secluded section of a suburban residential neighborhood. See Nomu~ 135 AD3d at 55. This con- clusion was amply supported by the record, which consisted of specific testimony describing the area as "secluded," "residential" and "suburban" (I I. 95), where there would typically be very few people (H. 96), as well as an aerial photograph depicting, not an urban area, but a suburban neighborhood (People's Hearing Ex. 1; People's Trial Ex. 53). Thus, not only was there ample 11 record support for the conclusions of the Appellate Division, but defendants' arguments de- pend on factual allegations without a'!Y support in the record. 7 Nonoi's citation to People v DiaiJ 81 NY2d 106, 108-09 (1993) does not compel a differ- ent result. In Diat the question was not whether Officer .Headley had reasonable suspicion to conduct a protective pat-down-the court found that mixed question unreviewable-but whether or not the officer's subsequent conduct exceeded the scope of a pat-down. Here, how- ever, Nonni is not alleging that the officers conduct-telling defendants to please stop so that they could be questioned-exceeded the scope of a common law right of inquiry, but whether or not the officers had a founded suspicion at all. Jee People v Brown, 25 NY3d 973, 975 (2015). That latter question is a mixed question of law and fact, not a categorical question of law, and therefore unreviewable. See People v Mercado, 25 NY3d 936, 937 (2015) ("determinations regard- ing founded suspicion of criminality justifying a request to search ... involved mixed questions of law and fact"); see also People v ]oms, 11 NY3d 822, 823 (2008)("determination that police the pos- sessed founded suspicion of criminality justifying a common-law inquiry, (is] a mixed question of law and fact"). Turning to the record support for the suppression court's determination, Nonni's con- tention that his "mere presence" at the location was "purely innocuous" and the "sole basis for the prosecution's founded suspicion theory" is a total dilution of the circumstances (Nonni SSM at 14) (emphasis added). The question, of course, is not whether each piece of information in and of itself had a conceivable innocent interpretation, but whether the "totality of the infor- mation available to the police" provided the requisite level of suspicion. People v Johnson, 111 AD 3d 469, 469 (1st Dept 2013); see also People v Be'!Jamin, 51 NY2d 267, 270 (1980) ("whether the action taken was justified ... in view of all the circumstances"). Furthermore, it is well-settled that "a defendant's flight in response to an approach by the police, combined with other specific cir- cumstances indicating that the suspect may be engaged in criminal activity, may give rise to rea- sonable suspicion, the necessary predicate for police pursuit." People 11 Sierra, 83 NY2d 928, 929 (1994). Here, defendants were walking together in an otherwise desolate area of a secluded resi- dential neighborhood. They were walking towards the public road on the private driveway of the exact location where a burglary was reported just five minutes earlier. Thus, when the police ar- rived on scene they had a founded suspicion that criminal activity was afoot and the officers had the right to approach and inquire whether the only two men in the vicinity were victims, wit- nesses, or suspects of the burglary. Indeed, "given the extremely close temporal and spatial prox- imity to the reported crime, and the absence of anyone else in the vicinity ... there was a strong likelihood that these men were robbers." People v Bn!Jan, 104 AD3d 481, 481-82 (1st Dept 2013)(emphasis added)( citing People v W'i/liaill, 81 AD3d 453 [1st Dept 2011], affd 19 NY3d 891). 7 Nonni concedes that the police would "likely" have had reasonable suspicion if the defend- ants were seen walking down the driveway of a "suburban" home, in the wake of a report of a bur- glary at that horne (Nonni SSM 15). Since the record established that the area was in fact ''suburban" and that the Ederles in fact lived at the club, he is haxd-pressed to argue that this Court has the au- thority to reverse the Appellate Division's ruling. 12 Then, exercising their common-law right to inquire, the officers twice informed defend- ants that they wished to ask them a few questions. After failing to respond to both attempts to inquire, Nonni ran in one direction and Parker briskly walked in the other. Given all the circum- stances that justified the earlier initial common-law inquiry, defendants' ilight gave the officers' reasonable suspicion to pursue and detain them. See People v Marti11e!(; 80 NY2d 444, 448 (1992)( defendant's ilight may be considered in conjunction with attendant circumstances such as time and location). Defendant Parker unpersuasively argues that his brisk walk away from police did not constitute flight, and that the Appellate Division improperly imputed to him the flight of his co- defendant, Nonni. First and foremost, Parker can point to no case by this Court, or any inter- mediate court, whereby fligh t is primarily defined by the rate at which one departs. Indeed, walk- ing, like running, can constitute flight. See People v Exum, 208 AD2d 557 (2d Dept 1994). 8 Sec- ond, the Appellate Division did not rest its determination that defendant "actively fled from the police" on co-defendant Nonni's flight. Instead, the Appellate Division held that, under all the circumstances, pursuit of Parker was justified when "Parker immediately made what officers de- scribed as a 'hurried' and 'evasive' departure." Notmi, 135 AD3d at 56-57. 9 Thus, in view of all the circumstances, the police had the requisite level of suspicion necessary for the initial common-law inquiry as well as the subsequent pursuit and detention of each defendant. Nonni's Argument that the Envelopes Should have been Suppressed is not Preserved. Tacitly conceding that defendant's initial motion focused solely on the legality of the stop as the basis for suppressing the physical evidence and that this omission did not comply with the statutory mandate of CPL 710.60 (1) outlining the requirements for a suppression mo- 8 Parker concedes, citing to People v Moore, 6 NY3d 496, 500 (2006), that where the police possess a common law right to inquire, they may "follow" a defendant while attempting to en- gage him. The officers still would have seen the sledgehammer in Parker's open backpack had they simply "followed" him, thus furnishing the requisite level of suspicion necessary to justify his immediate detention. 9 Defendant Parker attempts to fault the Appellate Division's holding by trudging up ancil- lary comments in the court's footnotes, specifically the third footnote. But even if the court's deter- mination as to Parker was, in part, based on Nanni's flight, there is nothing impermissible about ana- lyzing the appropriateness of pursuit under the totality of the circumstances. Parker seeks to isolate the suspicious acts of each defendant to diminish their collective effect, but when determining whether an officer's response to one individual was reasonable, the totality of information includes actions taken by others, who are together in dose proximity. See People v Joh!lsO!I, 111 AD3d 469, 469- 70 (1st Dept 2013) (defendant's behavior, considered in light of "preceding factors," including "a pattern of suspicious behavior'' by another man, justified frisk); see also People 11AIIm, 42 AD3d 331, 332 (1st Dept 2007) (frisk justified "notwithstanding any possible innocent explanations for defend- ant's imlitJtdllal actions" [emphasis added]). 13 cion, Nanni unconvincingly attempts to argue that he preserved his claim that the money and envelopes should be suppressed because they were not recovered during a valid search incident to arrest and that the suppression court erred in supposedly adopting a protective search theory. First, Nanni's counsel did not preserve these arguments. Not only was this issue not liti- gated during the hearing, but none of counsel's argument focused on this issue. Indeed, the court indicated its belief that "the question that I have in my mind, which I think is applicable law in the case, is did they have a common-law right of inquiry and then what docs flight do to elevate or not elevate the actions the police took. I suggest that's the question I have to answer," to which defense counsel responded, "1 agree with the Court a hundred percent in terms of the law that the Court just now indicated" (H. 123). Nonni points this court to certain statements made by counsel during argument (Nonni SSM 19; H. 117, 125- 27). But the portions of tran- script cited by Nonni do not contain any argument regarding the constitutionality of the arrest or search. Rather, counsel was challenging the cour t on its assessment of the officer's credibility. Indeed, counsel was directing the court's attention to the alleged discrepancies between the testi- fied-to reason for arrest, and the reason for arrest made out in the criminal complaint (H. 123- 35 ["I disagree with the Court when the Court credits a witness ... with such great credibil- ity ... (because] the witness . .. goes through great lengths to say he's not arrested for a burgla- ry .. . which is inconsistent with the criminal court complaint"]). Moreover, although defendant now cites p. 143 of the transcript of January 14, 2010 for the argument that counsel adopted Nonni's prose claims regarding search incident to arrest, the transcript contains no indication of precisely what submissions counsel had adopted. Indeed, the record makes clear that Nonni submitted several sets of pro se papers throughout the pen- dency of this matter (approximately 15 to 20, on speedy trial grounds alone, by the People's es- timation [H. 145]), and the court specifically alluded to the multitude of submissions made by the defendant on the hearing alone (1-1. 146-47, 149-54). With this plethora of pro se material, and no indication whatsoever as to which submissions were adopted, defendant is hard-pressed to convince this Court that counsel adopted these specjfic arguments. Additionally, the pro se ma- terial to which Nonni currently cites contains insufficient allegations to alert the court that he was contesting the legality of the search for any reason other than that it followed an allegedly improper stop (1 /6/10 Memo of Law at 7), let alone the further notion that, even pursuant to a lawful arrest, the police could not open the closed envelopes found in Nanni's back pocket without a search warrant (Notmi SSM 18). Nor did the suppression court's decision serve to preserve the claim under CPL § 470.05(2). Since Nonni never articulated this claim in either his motion or subsequent argu- ments, the People did not set forth argument on this issue in their submission (People's Post- hearing Motion in Opposition 6-7 [ceasing analysis after stating that officers had reasonable suspicion necessary to support pursuit and detention]) Indeed, Nonni's failure to so articulate "effectively deprive[d) the People of a fair opportunity to present their proof on that issue." People 11Ma11in, 50 NY2d 1029,1031 (1980) (citing People v Tutt, 38 NY2d 1011,1012- 13 [1976]) ("resulting record is inadequate to permit. .. an intelligent determination on the merits"). Accord- ingly, no proof was adduced during the hearing as to whether the envelopes were closed or open, sticking out of the top of Nanni's pocket or concealed beneath the brim, or originally felt to be a weapon during the frisk . 14 Thus, while the ADA mentioned the circumstances of the recovery of the property in his recitation of the events after the hearing (People's Post-hearing Motion in Opposition S-6), and the suppression court stated that the seizure of the property was "justified and lawful" (De- cision 13- 14), this was certainly not an "express" endorsement of any legal theory. Instead, it was a ruling on the claim that defendant in fact Li tigated at the hearing: whether the evidence should be suppressed as the fruit of the poisonous tree based on the alleged illegality of the ini- tial stop (Decision 13- 14 [ceasing analysis after stating that officers were justified in pursuing, detaining, and recovering evidence]). Since there was no "express" determination of this issue, it is unprescrvcd for this Court's review See C.."PL § 470.05(2); People v T11niogo, 90 N. Y2d 77, 83-84 (1 997); Me~rli11, 50 N.Y2d at 1 029; T1111, 38 N.Y.2d at 1011; People v IY/r~~/;1, 34 N.Y2d 776 (1974).10 Moreover, even if it were preserved, Nanni's argument remains without merit. A pat- down frisk is not limited in the way that Nonni describes (Normi SSM 17). Indeed, the only clear limit on a protective pat-down search is that it "may not exceed what is necessary to ascertain[] the presence of weapons." Diaz, 81 NY2d at 109. Accordingly, in Diaz, the interior pocket search was unlawful precisely because the officer already knew that defendant's pocket did not contain a weapon before searching the interior. !d. at l 08, l 09 (where the officer "grabbed de- fendant 's pocket. .. felt no weapon but did detect what 'appeared to be a bunch of vials"'). Defendant's position, that a temporary detention never justifies a "search," only a "frisk," is controverted by this Court's precedent. See Diaz at 109 ("the protective pat-down exception to the warrant requirement authorizes a limited search of lawfully detained suspects" [emphasis added]). Matter of Victor M., 9 NY3d 84, 88 (2007) and People v Batista, 88 NY2d 650, 654 (1996) are not to the contrary. Matter of Victor M. states only that a temporary detention does not justify a "full-fledged" search; it makes no statement regarding the availability of " limited" searches. Victor M, 9 NY3d at 88. Similarly, Batista considered only whether a frisk could be justified on less than what would be required for an arrest; it did not state that such "lesser" justi- fication could only support the use of a frisk. Batis ta, 88 NY2d at 654. Here, the search of de- fendants back pockets for weapons was certainly justified in light of an officer having been cut while defendant 's back was facing the officer (H. 54- 55). At the time Nonni was detained, the officers may not yet have known whether they had been cut by the knife that was protruding through a rip in Normi's backpack, or some other sharp, concealed object. Indeed, Nonni was found to have not one, but three different knives on his person (H. 55). In any event, the suppression court did not rule one way or the other as to whether Nmmi was merely detained at the time he was stopped and handcuffed on Campbell Drive, or actually under formal arrest (Decision 13-14 ). Indeed, based on Officer Delaney's testimony (H. 59), the People argued that "[Nonni] was immediately arrested for resisting arrest and assaulting a peace officer" (People's Post-hearing Motion in Opposition 5). Assuming for the moment that the court, had the issue been raised at the hearing, would have agreed that Nonni was immediately placed under arrest, that is, before the search occurred, the oflicers, one of which had just been 10 Although this precise claim was not advanced by respondent in the Appellate Division, it is still properly set forth before this Court as an argument in support of affirmance or dismissal of the appeal. See Sega vStole of New York, 60 N.Y.2d 183, 190, n.2 (1983) (arguments in support of af- fmnance may be made before this Court, regardless of whether they were raised below). 15 cut by a concealed weapon, were justified in searching defendant's person and "closed contain- ers" found on his person pursuant to a search incident to a lawful arrest. Indeed, "determinative of the search's validity were the facts that police reasonably believed that defendant was in pos- session of a weapon ... that the search was conducted virtually contemporaneously with the ar- rest. .. and that the [item searched) was large enough to contain a weapon." People v Gokey, 60 NY2d 309,312 (1983) Defendant's reliance on Jimenez, 22 NY3d 717, 719 (2014) is not persuasive. In Jimenez, there was no exigency where "the circumstances leading to the arrest [did not] support a reason- able belief that the suspect may gain possession of a weapon." Jimenez, 22 NY3d at 722. Jimenez was clear, however, that the crime justifying "arrest may itself provide the requisite exi- gency." !d. Unlike an arrest for nonviolent crimes, see Gokey, 60 NY2d at 313 (drug offenses); see also Jimenez, 22 NY3d at 722 (trespassing), Nonni was arrested for a violent crime, assault- ing a police officer (H. 59). Moreover, like in People v Smith, 59 NY2d 454 ( 1983) (bulletproof vest) and People v Johnson, 86 AD2d 165, 166 (1st Dept 1982) (report of a "man with a gun") there was other, additional indicia that defendant was armed with a weapon. h1deed, while tack- ling defendant to the ground, an officer was cut with a serrated knife protruding from Nonni's backpack (H. 54-55). Moreover, like in Smith and Johnson, the officers seized and conducted a search of Nonni's closed containers "immediately upon encountering defendant." Gokey, 60 NY2d 313. Thus, given all the facts leading up to, and surrounding the search, the contents of Noru1i's closed containers were properly seized pursuant to a search incident to a lawful arrest. Moreover, even if the money found in Nonni' s envelopes should have been suppressed, its entry into evidence was harmless beyond a reasonable doubt since it was completely cumula- tive of overwhelming evidence provided from other sources. See See People v Crimmins, 36 NY2d 230, 243 (1975); see also People v Linton, 32 AD3d 909, 910 (2d Dept 2005). Robert Ederlc, the victim of the robbery, provided a full account of the crime, including when he led Nonni and Parker downstairs to a storage room where he had $3000 in cash hidden in a metal soda canister (R. Ederle: T. 297-299, 301-303, 315-319, 366, 379, 405, 421; People's 15: Photo- graph of storage room; People's 16: Photograph of soda canister; People's 49A: Knife Nonni held to Mr. Ederle's kidney area). Mr. Ederle showed Nonni where the money was hidden and N onni entered that storage room and removed the three envelopes containing the cash from the soda canister (It Ederle: T. 303, 317, 319, 379). Though Mr. Ederle admitted on cross- examination that he did not actually see Nonni with the $3,000 (R. Ederle: T. 414), he heard Nonni speak to someone on the telephone, saying, "We got it, that's all there is" (R. Ederle: T. 303-304). Nonni's contention that the case turned on this testimony is without merit. Nonni ig- nores the crucial and convincing role that the cellphone records played in corroborating Mr. Ederlc's testimony. At trial, the People's theory was that Pamela Williams (a.k.a. Samantha Sanchez) set up the appointment for her "husband" to see the party room as a ruse to give Par- ker and Nonni access to the club (f. 813). Pursuant to that theory, Anthony Devita came to the bar on January 20, during a big game, to do reconnaissance on the football pools (T. 814-15). This theory was proven through the introduction of phone records showing that on January 18, 2008, Parker received a phone call from the telephone registered to Anthony Dev1ta at approxi- mately 8:00 p.m., just after Samantha Sanchez had gone into the bar and set up an appointment 16 for Monday morning (T. 815-815A). The phone records also showed that a call was placed from Anthony D evita's cell phone to Parker's cell phone on Sunday nigh t, J anuary 20, 2008 at ap- proximately 9:10 p.m., which corresponded with the time Mr. Devita was inside the bar and stepped out for ten minutes. Finally, the records showed that on January 21, 2008, a call was placed from Nanni's cell phone to Anthony Devita's cell phone at approximately 9:35 a.m., dur- ing the robbery (f. 815). Thus, the cellphone records of the final call between Nanni and An- thony Devita corroborate Mr. Ederle's accounts of a phone call being placed during the robbery where Nonn.i admitted to taking the money that Mr. Edcrle had shown him. Moreover, there is no reasonable probability that the error contributed to the verdict. See Crimmins, 36 NY2d at 243 . As Nonni points out, defendant was not convicted of Robbery in the First Degree, "thus rejecting Robert's account of a knife-point robbery'' (Nanni SSM 19). But the knives, like the money, were also recovered by the police and in evidence. Yet, despite this evi- dence of Mr. Nonni 's possession of weapons (three knives) and burglary tools (duct tape), the jury did not convict Nonni of Robbery in the First Degree or Burglary. If the jury was relying on the recovered evidence as detenninative of guilt, then the result should have been a conviction for Burglary and for Robbery in the First Degree. Thus, it appears that the jurors verdict did not turn on the recovered evidence, but on something else. Likewise, there is no reasonable probabil- ity that the admission of the money contributed to the verdict. * * Counsel had all the Notice Necessary to Maximize Participa- tion in the Court's Decision to Accept the Verdict; Thus there was no Mode of Proceedings Error. Counsel, having knowledge of the existence of two outstanding notes, was in a position to object to the court's decision to rake the jury's verdict. Having failed to object, defendants' arguments regarding the outstanding notes arc unprcserved and meritless. This court has "generally refused to classify alleged errors as mode of proceedings errors in the jury note context when the record demonstrates that counsel had all the knowledge re- quired to object, and a timely objection would have allowed the court to 'easily cure the claimed error"' People v Mac-k, 27 NY 3d 534, 542 (2016) (citing People v Ippolito, 20 NY3d, 615, 625 [2013]). Indeed, this Court has recognized a distinct difference between errors that prevent counsel from "participating meaningfully in [a] critical stage of trial," and those which do not. Mad~, 27 NY3d at 544 (citing People v O'Rama, 78 NY2d 270, 279 [1991 ]). This court has also expressed reluctance to designate an alleged error as a mode of pro- ceedings error where such designation would serve to "incentivize a distinct act that diminishes the preservation rule." Mat·k, 27 NY3d at 543. Namely, a choice by counsel to remain silent in the face of an error, rather than object and seek correction, on the basis that the jury will either (1) acquit, "and counsel will have secured the desired trial outcome," or (2) convict, but coun- sel's silence "will have created an appellate issue requiring automatic reversal and a new trial." Ma~·k, 27 NY3d at 543. Indeed, in such simations "it would be unwise for counsel to object and seek correction of the error." !d. (citing People 11 Nealo11, 26 NY3d 152, 162 (201 5]). 17 In Mack, this Court declined to find a mode of proceedings error where counsel "may have decided that the jurors were more likely to acquit defendant if they were not given the chance to deliberate further." Mat"k, 27 NY3d at 543-44. Here, the jury sent out three notes before the lunch recess: jury note number 2 at 11:16 AM (Court's Exhibit 8), number 3 at 11:30 AM (Court's Exhibit 9), and number 4 at 11:55 PM (Court's Exhibit 10). Jury note number 2 requested the definitions of Robbery and Burglary, the Westchester Country Club flyer with card attached, and readbacks of "the first sighting of de- fendants exiting the robbery sight ... [and) where the defendants were caught with regards to dis- tance" (Court Exhibit 8). Jury note number 3 requested "testimony with regards to the type of surfaces needed to get an accurate print .. . Jajokian (fingerprinting expert)" (Court's Exhibit No. 9). Jury Note number 4 requested "testimony of Mr. and Mrs. Ederle with regard to who can rent the party room" (Court's Exhibit 10). The court marked all three notes as court exhibits, and then resumed proceedings on the record (T. 88~5). Following a short discussion with counsels, the court returned the jurors to the courtroom (T. 889). The court stated, "I have three notes from you and I just want to make sure that all of us remember what was in the notes so I'm going to review them, I'll read them back to you so that everyone will have a clear memory of what you've originally requested" (T. 890). The court then read jury note number 2-requesting certain legal instructions, exhibits, and testimony- into the record and stated, " [s]o let's deal with that note first and we'll leave the other two for after lunch. One at a time" (T. 890). The court then explained the requested legal instructions, and the court reporter read the requested and agreed-upon testimony (T. 890- 98). Afterwards, the court stated, "[w]ell, that is the readback of the testimony that you re- quested on your first note. The additional testimony that you requested in the other two notes, we'll respond to that after lunch" (T. 899). The court then explained to the jury that they could deliberate over lunch if they desired, and then "a lunch recess was taken from 1:30 p.m. until 2:30p.m." (T. 899). At 2:31 PM, the jury sent out jury note number 5 announcing that a verdict had been reached (Court's Exhibit 11). The court then took the verdict and polled the jury (T. 900-05). Here, W