The People, Respondent,v.Mark Nonni, Appellant.BriefN.Y.Mar 20, 2018CENTER FOR APPELLATE LITIGATION 120 WALL STREET – 28TH FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535 ATTORNEY-IN-CHARGE ROBERT S. DEAN ASSISTANT ATTORNEY-IN-CHARGE MARK W. ZENO SENIOR SUPERVISING ATTORNEYS ABIGAIL EVERETT CLAUDIA S. TRUPP BARBARA ZOLOT MANAGING ATTORNEY DAVID J. KLEM SUPERVISING ATTORNEY MARISA K. CABRERA ASSISTANT MANAGING ATTORNEY KATHARINE SKOLNICK The Honorable Judges of the Court of Appeals Court of Appeals Hall 20 Eagle St. Albany, NY 12207-1095 RE: People v. Mark Nonni, APL-2016-00076 Your Honors: Appellant, Mark Nonni, submits this letter under this Court’s Rule 500.11 procedure. As this case raises several important questions of law, Appellant requests that this Court consider this appeal after full briefing and argument. INTRODUCTION During deliberations, two hours before lunch, the jury sent out two substantive notes. The court failed to provide counsel with notice of the notes’ contents and took a verdict immediately after lunch without responding to those notes. The court’s failure to provide “meaningful notice” of the notes’ contents was a classic mode of proceedings error under People v. O’Rama, 78 N.Y.2d 270 (1991). This Court should reverse and order a new trial. Additionally, the Appellate Division majority committed two errors of law in validating Mr. Nonni’s detention and the ensuing search. First, the majority incorrectly held that a person’s mere presence on the scene of a reported offense establishes a MATTHEW BOVA MBOVA@CFAL.ORG EXT. 543 June 24, 2016 Page 2 of 20 June 24, 2016 “founded suspicion” under People v. De Bour, 40 N.Y.2d 210 (1976). Second, the majority held that during a Level-3 detention, the police can, without reliance on the search-incident-to-arrest doctrine, conduct a “protective search” inside a detainee’s pockets. The Fourth Amendment and Article I, § 12, however, only permit protective frisks under those circumstances. This Court should reverse the Appellate Division’s unprecedented legal determinations. STATEMENT OF FACTS Mr. Nonni and Mr. Parker were indicted (as co-defendants) with, among other charges, first-degree robbery (use of a knife) and second-degree robbery (aided by another actually present). The prosecution alleged that Mr. Nonni and Mr. Parker forcibly stole $3,000 dollars from Robert Ederle, the “caretaker” of a Bronx “Country Club.” SUPPRESSION HEARING Before trial, Mr. Nonni moved to suppress physical evidence and identification evidence recovered as the result of his unconstitutional “search and seizure” (Omnibus Motion 6-7 [April 30, 2008]). The court ordered a suppression hearing. A. The Testimony of Officers Delaney and Fratterigo At 9:30 a.m. on January 21, 2008, Officer Fraterrigo received a radio run that said: “burglary in progress at the (Bronx) (SH 13). “[T]here was no other information” (SH 21). Thus, the radio run did not mention the (1) number of suspects; (2) the suspect’s gender or race; (3) the suspect’s physical description; or (4) the nature of the “burglary” (SH 13, 21). The “Westchester Country Club” is located on The Club is a large “commercial establishment” located in a “residential area. It’s got a school right next to the location. It has a couple of yacht clubs [too]” (SH 17; SH 44 [testifying that the Club is a “yacht club”]; SH 95 [officer testified that in contrast to some busier areas of the Bronx, this area was “suburban” and “a pretty secluded area of residential houses”]). This commercial property extends hundreds of feet from the property’s entrance on all the way to Eastchester Bay, which surrounds the Bronx’s Northeastern shore (Hearing Ex. 1: Map; In Evidence: SH 18). The Club employs a “staff of approximately 10 to 19,” hosts large parties, and has “multiple dwellings” (SH 45).1 The Club has a “long driveway that goes from the street to the actual entrance into the [Country Club] building” (SH 19, 49; Ex. 1). Numerous officers (Martinez, Lemp, Fratterigo, and Delaney) arrived at at about 9:40 a.m. (SH 83). They saw “two individuals” “casually” 1 See also Record: Mr. Nonni’s Pro Se Supplemental Post-Hearing Brief, Exhibit G (Filed Jan. 6, 2010); 1/14/10 Tr. 142 (counsel adopted Mr. Nonni’s pro se papers). Page 3 of 20 June 24, 2016 walking down the Club’s driveway towards the street (SH 22, 102). They were doing nothing suspicious (SH 96). Officer Martinez yelled, “Police, don’t move” and “stop” (SH 23, 50-51, 85). The individuals continued walking, and Officer Martinez repeated, “Stop, we want to ask you a question” (SH 23-24). Mr. Nonni then ran down the road while Mr. Parker briskly walked away (SH 24-25). The three officers pursued Mr. Nonni (SH 24-27). Officer Martinez seized him first, and then Officers Lemp and Delaney tackled him to the ground because he was struggling with the officers (SH 26). When Officer Lemp tackled Mr. Nonni, he received a “small cut” from a knife that was protruding from a rip in Mr. Nonni’s backpack (SH 26-27, 109). Officer Lemp seized the backpack and searched inside, finding two knives and a “roll of duct tape” (SH 30). Officer Delaney then searched inside Mr. Nonni’s “back left pocket” and removed three envelopes (SH 30). The officer removed $1,000 in cash from each envelope (SH 30). The officers then moved Mr. Nonni closer to the Country Club entrance where the complainant identified him (SH 90, 106). The officers also seized a cell phone from Mr. Nonni’s person (SH 40). B. Arguments Defense counsel argued that the police lacked the authority to stop or question Mr. Nonni because: (1) they had no information about the suspect/suspects; and (2) Mr. Nonni was merely “walking” out of a commercial property and was “not observed committing a crime” (SH 114-19). Defense counsel further argued that the police lacked probable cause to arrest, attacking the suggestion that the basis for the arrest was “resisting arrest” (SH 118-19, 123). “Everything that resulted after this bad stop and bad arrest I would argue to the Court should be dismissed for obvious reasons under the law” (SH 118). The prosecution answered that the initial encounter was a valid “common-law inquiry” because Mr. Nonni and Mr. Parker were walking on the scene of the reported offense and no one else was visible (SH 127-30). As for the pocket search, the prosecution cited a search-incident-to-arrest argument and a safety-search theory: [T]he officers have the ability to search him at that point to make sure they’re not going to be injured any further, that he doesn’t have any other weapons on him . . . all of the property was recovered based on initially the detention and . . . the search incident to the lawful arrest or the lawful detention at that point or the subsequent, with respect to Mr. Nonni, the detention, the officer being injured by a weapon that was on Mr. Nonni, Page 4 of 20 June 24, 2016 searching him and making sure he didn’t have any other weapons and finding the rest of the property. (SH 133-34, 137 [emphasis added]; see also generally People v. Reid, 24 N.Y.3d 615, 619  [the search-incident-to-arrest exception applies when there is “an actual arrest” and “probable cause”]). In a pro se supplemental brief, which counsel subsequently adopted, Mr. Nonni argued that without “probable cause” or “reasonable suspicion,” the police “stop[ped], arrest[ed], and search[ed]” him “in full violation” of the state and federal constitutions. “The People,” Mr. Nonni argued, “have not sustained their burden of proof” (Memorandum of Law 7-8; 1/14/10 Tr. 142).2 The prosecution’s post-hearing memorandum argued that Mr. Nonni’s presence on the scene justified a common-law inquiry (Memorandum 7). Further, the flight “raised the suspicion level from a founded suspicion to a reasonable suspicion,” thus justifying a detention (id.). As for the search “in [Mr. Nonni’s] pants pocket,” the prosecution did not advance any argument at all (id. at 6). Thus, the prosecution did not argue that the pocket search was constitutional because the police had probable cause and the search- incident-to-arrest exception applied. Instead, the prosecution contended that there was “probable cause” once the “victim identif[ed] . . . each defendant” (id. at 6, 7). In a second pro se supplemental brief, which counsel also subsequently adopted, 1/14/10 Tr. 142-43, Mr. Nonni argued that he was seeking “suppression of all physical [evidence] and identifications that were made during an arrest which was founded on less than . . . . probable cause . . . [T]he [P]eople[’]s opposition states that defendant bears the burden of proving the police acted illegally . . . The Court of Appeals has held that at a suppression hearing, [t]he [p]rosecution, not the defendan[t] has the burden to show the legality of police conduct. To show that the search was made pursuant to a valid warrant, consent, or incident to a lawful arrest . . . Here in this case the people have not me[t] this burden . . . ” (1/7/10 Memorandum of Law [some emphasis added]). C. Decision The court held that Mr. Nonni’s presence on the commercial property created a founded suspicion (see 4/15/10 Decision 13). The flight “elevated the initial founded suspicion . . . to the level of reasonable suspicion, justifying the pursuit and seizure” (id. at 13). 2 See also 1/14/10 Tr. 143 (the prosecution acknowledged that it received Mr. Nonni’s pro se papers); Pros. Opposition to C.P.L. § 30.30 Motion p. 9, ¶ 30 (acknowledging that Mr. Nonni’s submissions were “adopted by defendant’s counsel”). Page 5 of 20 June 24, 2016 Tracking the prosecution’s hearing argument that “the officers have the ability to search” to prevent “injur[y]” and ensure that there were no additional “weapons” (SH 133, 137), the court held that the search was “justified and lawful” because Officer Lemp “was cut by a knife”: As he was being handcuffed, Officer Lemp was cut by a knife that was inside the backpack that [Mr. Nonni] was carrying. The seizure at that point, of the bag which contained two knives and a roll of duct tape, as well as the recovery of the three bank envelopes, each containing $1,000.00, from defendant’s pocket was likewise justified and lawful. (id. at 14). The court did not rely on a search-incident theory and thus never held that there was probable cause at the time of the search. Instead, the court held that probable cause arose after the “identifications” (id. at 15). TRIAL The prosecution’s theory was that Mr. Parker and Mr. Nonni forcibly stole money from Robert Ederle (“Robert”), the Westchester Country Club’s “caretaker” (Pros. Summation 818-22; Robert 371). The defense contended that Robert was incredible because he was operating an illegal enterprise from the Country Club (Defense Summation 799, 802). A. The Ederles’ Testimony Regarding the Operation of the “Country Club” Robert and his wife, Anne, (Anne: 40-41; Robert: 188). The Club is an “ocean front property,” with a bar, kitchen, catering hall, and a pier “where the beach is” (Anne: 42, 95). The Ederles lived in an apartment directly below the Club’s catering hall (Anne: 42; Robert: 193). They were the Club’s “caretakers” (Anne: 90; Robert: 197) As defense counsel argued in summation, the Ederles’ testimony established that the “Country Club” was likely a “front” for a “criminal enterprise” (Summation 802). According to their testimony, this water-front club had about 65 members who paid annual dues of $250—totaling less than $25,000 in annual dues (Anne 102; Robert 387). The Ederles also rented the catering hall for events such as communions, confirmations and graduations, charging a mere $250 per event (Anne 45; Pros. Ex. 46). The Club did not collect rent from anyone, including the Ederles (Anne 96). While the Club purportedly paid property taxes (Anne 94), there is no testimony explaining how the Club afforded property taxes on this meager revenue stream. Page 6 of 20 June 24, 2016 The Ederles struggled to explain the Club’s ownership and operation. Although Anne and Robert , they did not know who “owned” the property (Robert 349; Anne 95-99). In fact, Robert oddly testified that no one “own[ed] the property” and no one was “in charge” of him (Robert 349). There was a “Board,” but Robert was its only member (Robert 350-51, 371). “Gina and Michael” tended bar at the Club, but they were paid “off the books” (Anne 141). Despite extensive cross-examination, the Ederles never clarified the simple question of who actually owned this beach-front property. In attempting to explain the Club’s origin, the Ederles made vague references to “charters” and “land grants.” Anne had heard rumors that “the City” gave the property to “the people of the country club” through a “land grant . . . [i]n the early 1900’s. That’s what I thought I heard . . . I’ve heard stories. Something like that . . . I don’t know” (Anne 98-100). Similarly, Robert testified that “[t]he original charter of the club is a land grant from the Westchester Country Club. Years ago, the way I heard it, this was part of Westchester [Country Club] . . . .” (Robert 199). Robert and Anne testified about who could rent the catering hall (see Jury Note: Ct. Ex. 10 [“Testimony of Mr. and Mrs. Ederle w/ regards to who can rent the party room”]). Anne claimed that they previously rented the catering hall to “mostly anybody” (Anne 45). But after this incident, they chose to only rent the Club to people who were “vouched for by members” (Anne 104-05). Robert contradicted his wife’s testimony, testifying that they did not rent the Club to “anybody” (Anne 45; Robert 340). Instead, a customer must “know someone” with a connection to the Club (340-41). And unlike his wife, Robert claimed that “the criteria for renting [the party room] out [had not] changed at all since this incident” (Robert 339-40). B. Robert’s Million-Dollar Gambling Operation Robert operated a gambling operation from the property, regularly running sports “pools” from the Club (e.g., Robert 341-42). The pools were “kept as low and as hushed, nobody wants to know what’s going on . . . They may go through me, they may go through somebody else who helps run the pool. It’s not run by me because there’s too much money, there’s too much logistics, but I am the kingpin of the situation” (Robert 204, 351). Robert’s pools ranged from thousands to one-million dollars in prizes (Robert 206, 232-33). For his one-million-dollar Superbowl pool, participants contributed 10,000 dollars in cash (Robert 300). Robert never deposited the cash in a bank but instead siphoned the funds to individuals outside the Club: I don’t hold it. It’s gone. It goes to other people. When I get it, it’s off the premise as fast as I can get it off the premise. . Page 7 of 20 June 24, 2016 . They’re friends, trusted friends. There’s no one else on the [Club’s] board. They are neighbors down the street, so I can get rid of it as quickly as possible for fifteen or so people that pay. They are some of the people in the pool, some women that I know that are members of the club that I just figured nobody would think that they would carry out a large amount of money. (Robert 205, 351-52). These “women” were never identified. Although Robert’s salary was less than $15,000, he took no percentage of the 2008 Superbowl pool (Robert 207, 349, 376-77). He had received tips in prior years, but he did not declare those tips as income to the IRS (Robert 385). C. Robert’s Allegations On January 18, 2008, someone named “Samantha Sanchez”3 came to the Club seeking to book the catering hall for a party (Anne 54; Robert: 208). Robert and Anne had never seen her before (Anne 76; Robert 208). Robert gave Sanchez a flyer and a business card (Pros. Ex. 46), claiming that he wrote “Bobby and Annie” on the card and stapled it to the flyer (Robert 211-12). The prosecution introduced the stapled card into evidence, but it had no writing on it (Pros. Ex. 46; Robert 211-12). After leaving the Club, Sanchez called Robert and said that her husband needed to approve the rental (Anne 74; Robert 223-24, 239). They made an appointment for 9:30 a.m. on Monday, January 21, 2008 (Robert: 223-24). On Sunday, January 20, 2008, “Anthony Davida,”4 Sanchez’ husband, came to the Club (Anne 62, 77; Robert 231). He stayed for about ten minutes, left, and then returned, staying for another 30 minutes (Anne 80; Robert 234). Robert had met Davida years back when Robert threw him out of a bar that Robert previously tended (Robert 227). On Monday, January 21, 2008, Robert awoke at 9:15 a.m. for an appointment with Samantha’s husband (Anne 81; Robert 235). Robert went outside and saw two men, whom he had never met before, entering the Club’s driveway (Robert 236). Robert later claimed that these men were Mr. Parker and Mr. Nonni (Robert 238-39). After entering the Club, the two men walked upstairs so Robert could show them the catering hall (Robert 247-48). Parker put his backpack on a table, yelled “Now,” and removed a knife from his bag (Robert 247-49). Parker charged towards Robert’s “neck” with the knife, but Robert somehow blocked the knife-attack with his arm 3 “Samantha Sanchez” never testified. 4 “Anthony Davida” never testified. Page 8 of 20 June 24, 2016 (Robert 250). Robert was not “scared” (Robert 250). He “put [his] right arm up. [He] blocked his arm and . . . gave [Parker] a shot with my forearm right across the letters and knocked him backwards . . . Parker [was] knocked six feet back and [was] a little dazed now” (Robert 250). As Robert “spun” to his “right” to “engage Nonni,” he thought he could “cup him and get passed him” (Robert 251). That “cupping” effort failed, and Mr. Nonni pressed a knife against Robert’s stomach (Robert 251). Mr. Nonni then demanded the “pool” money and ordered Robert to lay face down on the floor (Robert 254-55). Mr. Parker put a knife against Robert’s neck, while both men tied his hands with duct tape (Robert 254-55; see also Pros. Exs. 10 & 29 [photographs of Robert’s scratches]). Robert told the men that he kept money downstairs (Robert 297). The two men went downstairs and found $3,000 inside a “soda canister” (Robert 297-301). The money was inside three envelopes (Robert 297-301). Robert put the money inside a “metal” canister because he “figur[ed] it was metal, if there was a fire, it wouldn’t burn” (Robert 301). After removing the envelopes, Robert heard Mr. Nonni call someone and say, “We got it, that’s all there is” (Robert 303-04; see also Mark Nonni Phone Records: Pros. Ex. 58 [indicating two phone calls from Mr. Nonni’s phone number to “Anthony Davida” at 9:35 and 9:53 a.m.]). Mr. Nonni then brought Robert to a chair, bound his feet with duct tape, and instructed him to lie face down on the floor (Robert 305-06). The two individuals then left (Robert 306-09). Robert managed to remove the duct tape from his legs and found his wife (Robert 308-09). Anne had remained downstairs throughout the entire incident and had called 911 (Anne 82-83; Robert 308-09). Consistent with their suppression hearing testimony, officers testified that they responded to a radio run and observed Mr. Nonni and Mr. Parker “walking out of the driveway” (Delaney 506, 510-12; Fraterrigo 486). Officer Delaney yelled, “Stop,” and Mr. Nonni ran “somewhat slow[ly]” (Delaney 511). The officers then tackled Mr. Nonni and searched his pockets and bag (Lemp 572-74; Delaney 513). Inside Mr. Nonni’s pocket, they found three closed envelopes (Pros. Ex. 36), which contained $1,000 each (Pros. Ex. 37). Inside Mr. Nonni’s bag, the officers found two knives (Pros. Exs. 49A, 49C) and duct tape (Pros. Ex. 49F) (see Delaney 514-21; Lemp 572-74, 577, 579-80). Robert identified Mr. Parker while he was “sitting handcuffed” outside the Country Club gate. After Robert glared at Mr. Nonni in handcuffs, an officer who was “chiseled out of granite,” asked, “Is that the other guy who robbed you”? Robert answered, “yes,” adding, “[Y]ou’re going to get yours, you know, you’re caught, ha-ha” (Robert 311-13). Beyond Robert and Anne’s testimony, the prosecution offered no other civilian testimony regarding the incident. Page 9 of 20 June 24, 2016 D. Officer Jarjokian’s Testimony Officer Jarjokian, of the “Evidence Collection Team,” found no forensic evidence (either in the Club or anywhere else) (Jarjokian 627, 630-31, 642, 645, 673-74). There were “no usable prints” on the “three pieces of duct tape” found inside the Club (Jarjokian 627, 630-31, 642). Officer Jarjorkian discussed the “surfaces” that are “conducive” to fingerprint testing (648; see Jury Note: Ct. Ex. 9 [“Ja[r]jokian (fingerprint expert) . . . Testimony w/ regards to the type of surfaces needed to get an accurate print”]). The officer asserted that the “top shiny part [of a knife blade] would be more conducive than the bottom [wood handle] which is a little bit more rough” (Jarjokian 649, 652, 654). During cross, defense counsel showed the officer the knife found in Mr. Nonni’s backpack (Pros. Ex. 49A). Officer Jarjorkian acknowledged that he could see “some form of a fingerprint . . . [with] his naked eye” (Jarjokian 651-52, 668; Lemp 574). Nevertheless, Officer Jarjorkian never analyzed any of the seized knives for fingerprints (Jarjokian 650-52). E. The Court Fails to Provide Counsel With Notice of the Contents of Two Substantive Jury Notes The court charged the jury to consider, among other charges, first-degree robbery (use of a dangerous instrument) and second-degree robbery (aided by another person actually present) (Charge 851-55). The jury deliberated for two days and sent a total of four notes. The first note requested “police reports” and “arrest photos” (Ct. Ex. 7). The court asked “[c]ounsel [to] acknowledge that they’ve seen the note requesting exhibits” and “that the exhibits were sent to the jury” (882). Counsel answered affirmatively (882). The court sent the requested exhibits to the jury (882). The next day, the jury sent three more substantive notes (Ct. Exs. 8-10). The court stated, “The record will reflect that there are three additional notes from the jury which I will be reading into the record after the jury is seated and we are going to respond to at least one of those notes now” (885). The first of the three notes, sent at 11:16 a.m., stated: “(1) Definitions of robbery 1/2 and burglary 1/2; (2) Westchester Country Club flyer w/ card attached; (3) Testimony of the first ‘sighting’ of defendants exiting the robbery sight [sic]. Testimony of where the defendants were caught w/regards to distance” (Ct. Ex. 8). Page 10 of 20 June 24, 2016 The court discussed this note with the parties and responded to it (890-99). The court never read the additional two notes into the record or confirmed that the parties had read them.5 The court next stated, “The additional testimony that you requested in the other two notes, we’ll respond to that after lunch. In the meantime, you may retire to the jury room and, if you would like to deliberate while you are having your lunch, that’s okay. You can resume your deliberations, and after lunch, we will continue with the readback” (899). A lunch recess was then taken from 1:30 to 2:30 p.m. (899). At 2:31 p.m., the jury sent a note stating that it had reached a verdict (900; Ct. Ex. 11). The court asked if “counsel ha[d] seen” the verdict note, and counsel answered affirmatively (900). The court took the verdict without addressing the other two notes (900-02). The jury acquitted both defendants of first-degree robbery but convicted them of second-degree robbery (900-02). The court sentenced Mr. Nonni to 20-years-to-life. F. Appellate Division 1. Briefing Appellant argued that the officers lacked a founded suspicion because Mr. Nonni was merely walking down a driveway (Nonni, Appellate Division Brief 31-33 [“App. Div. Br.”]). Accordingly, the initial inquiry, and the subsequent pursuit/detention based on flight, were unconstitutional (id. at 31-35). Further, the pocket search was unconstitutional (id. at 35-37). The “search incident” exception did not apply because, at the time of the search, there was no probable cause (id.). Further, the prosecution could not claim that the search was conducted incident to an arrest for “resisting arrest” or “assault of a police officer” because the prosecution’s post-hearing submissions abandoned those theories (id. 36 n. 6, 37 n. 7). Respondent answered that Mr. Nonni’s presence on the Country Club established a “founded suspicion” that justified a “level two common law inquiry (Resp. App. Div. Br. 23-27). Once Mr. Nonni fled, the police had “reasonable suspicion,” thus justifying pursuit and detention, the argument went (id. at 28-29). As for the pocket search, Respondent offered no argument, instead focusing on the constitutionality of the initial seizure (id. at 29-31 & 30 n. 19). Respondent did, 5 The other two notes, which were contained in the court file, stated: Court Exhibit 9 (11:30 a.m.): “Ja[r]jokian (fingerprint expert) . . . Testimony w/ regards to the type of surfaces needed to get an accurate print.” Court Exhibit 10 (11:55 a.m.): “Testimony of Mr. and Mrs. Ederle w/ regards to who can rent the party room.” Page 11 of 20 June 24, 2016 however, argue that Mr. Nonni was not arrested, and probable cause did not arise, until after the search (id. at 30-31 & 30 n. 19). Respondent cited no case holding that the police can perform a warrantless search inside a person’s pocket without reliance on the search-incident exception. In reply, Appellant maintained that “Respondent has conceded that the officers searched his person and backpack without a warrant, without an arrest, and without probable cause. . . . A search of a detainee’s person may only be conducted incident to a valid arrest supported by probable cause . . . Respondent can cite to no authority [establishing] that the officers could search appellant on mere reasonable suspicion. Absent a valid arrest supported by probable cause, the search was illegal . . .” (Reply Br. 3-5 & Reply Br. 4 n. 2 [citations omitted]). 2. Appellate Division Decision The majority held that “defendants were first seen on private property where a burglary had just been reported, in a suburban area, with nobody else visible anywhere in the vicinity. This gave rise to a founded suspicion of criminality, justifying a level-two common-law inquiry . . . Defendants’ flight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention.” People v. Nonni, 135 A.D.3d 52, 56 (1st Dept. 2015) (citing People v. Pines, 99 N.Y.2d 525, 526 ; People v. Martinez, 80 N.Y.2d 444, 448 ). The majority further held that even if the search-incident-to-arrest exception does not apply, an officer can perform a warrantless “protective search”: [The] circumstances justifying the officers’ initial approach and subsequent pursuit of defendants, along with the facts that Nonni had a knife protruding from his bag, which cut the finger of an officer who assisted in subduing him . . . justified an immediate protective search of each defendant’s bag and person. Id. at 58 (emphasis added) (citing People v. Batista, 88 N.Y.2d 650, 654 ); see also id. at 58 (holding that at the time of the pocket “search,” the police had not performed an “arrest requiring probable cause”). The dissent countered that mere presence on “commercial establishment in a residential area in the Bronx” did not justify a founded suspicion, thus rendering the common-law inquiry and the subsequent detention unconstitutional. Id. at 59-61 (Manzanet-Daniels, J., dissenting). Accordingly, the dissent would have suppressed the physical evidence and identification. Id. at 61. Justice Manzanet-Daniels granted Mr. Nonni and Mr. Parker leave to appeal to this Court. Page 12 of 20 June 24, 2016 ARGUMENT POINT I THE TRIAL COURT FAILED TO PROVIDE COUNSEL WITH NOTICE OF THE CONTENTS OF TWO SUBSTANTIVE JURY NOTES, THUS COMMITTING A MODE OF PROCEEDINGS ERROR. C.P.L. § 310.30 “imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury.” People v. Mack, __ N.Y.3d __, Slip Op. at 1-2 (June 7, 2016) (citing People v. O’Rama, 78 N.Y.2d 270, 276-77 (1991)). To provide “meaningful notice,” the court “must” read notes “verbatim” so counsel can “accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response.” People v. Silva, 24 N.Y.3d 294, 298-301 (2014); see also Mack, Slip Op. at 10-11; People v. Nealon, 26 N.Y.3d 152, 156-57 (2015); People v. Walston, 23 N.Y.3d 986, 988-90 (2014). As Mack recently confirmed, a “trial court’s failure to fulfill its first responsibility—meaningful notice to counsel—falls within the narrow class of mode of proceedings errors for which preservation is not required.” Slip Op. at 2; see also id. at 6 (“Our jurisprudence makes clear that a trial court’s failure to provide meaningful notice to counsel of a substantive jury note constitutes a mode of proceedings error”); Silva, 24 N.Y.3d at 299-300 (finding a mode of proceedings error where counsel lacked verbatim notice of the contents of the notes); see also Walston, 23 N.Y.3d at 988-90 (same). On the other hand, when the court complies with the “meaningful notice” requirement but fails to “respond . . . before accepting the verdict,” preservation is required. Mack, Slip Op. at 2. This “disparate treatment,” Mack explained, “arises from the practical differences between [the two errors]; one prevents counsel from ‘participating meaningfully in this critical stage of the trial,’ and the other does not.” Slip Op. at 14 (quoting O’Rama, 78 N.Y.2d at 279); see also Mack, Slip Op. at 10 (“When the trial court paraphrases or summarizes a jury note, thereby failing to provide counsel with meaningful notice of the specific content of the note, a mode of proceedings error occurs, ‘because counsel cannot be expected to object to the court’s response to the jury or to frame an intelligent suggested response if counsel lacks knowledge of the specific content of a substantive jury note.’ In other words, counsel generally cannot object to an error of which he or she is unaware”) (quoting Nealon, 26 N.Y.3d at 157). Here, the court failed to provide “meaningful” notice of two substantive jury notes, thus committing a mode of proceedings error. E.g., Mack, Slip Op. at 2, 6; Walston, 23 N.Y.3d at 988-90. The court neither read the notes into the record nor Page 13 of 20 June 24, 2016 shared the notes with counsel. As the court failed to provide meaningful notice, reversal is required. Mack, Slip Op. 2, 6; Walston, 23 N.Y.3d at 988-90. Walston and Mack confirm the mode of proceedings error. In Walston, the court “paraphrased” a note, but omitted a portion of the note’s inquiry. 23 N.Y.3d at 988-90. Walston found a mode of proceedings error because, although “defense counsel” knew the note “exist[ed],” there was “no indication that the entire contents of the note were shared with counsel.” Id. at 990. In Mack, on the other hand, the court read the notes “verbatim,” thus informing counsel of their “precise content.” Slip Op. at 11-14. Accordingly, this Court rejected a mode of proceedings argument. Id. This case falls on the Walston side of the mode of proceedings line. Although defense counsel knew the notes “exist[ed],” there was “no indication that the entire contents of the note[s] were shared with counsel.” Walston, 23 N.Y.3d at 990. Indeed, Mr. Nonni’s counsel had even less notice than Walston’s counsel as the court did not “paraphrase” the notes—it simply never read them at all. As there was no “meaningful notice,” the court’s error “falls within the narrow class of mode of proceedings errors for which preservation is not required.” Mack, Slip Op. at 2; Walston, 23 N.Y.3d at 990. As the court committed a mode of proceedings error, this Court should reverse and order a new trial. Mack, Slip Op. 2; Walston, 23 N.Y.3d at 988; Silva, 24 N.Y.3d at 301.6 POINT II THE INITIAL INQUIRY, THE DETENTION, AND THE WARRANTLESS POCKET SEARCH WERE UNCONSTITUTIONAL. THUS, THEIR FRUITS SHOULD BE SUPPRESSED. A. Appellant’s Mere Presence on the Country Club Did Not Establish Founded Suspicion. 1. Merits The right to be “let alone” is fundamental. People v. Holmes, 81 N.Y.2d 1056, 1058 (1993); People v. De Bour, 40 N.Y.2d 210, 216 (1976) (“Our recent decisions have emphasized the primacy of the right to be free from aggressive governmental interference”). To protect this core right, this Court has adopted a four-tiered framework for evaluating police encounters: 6 This argument can be raised for the first time in this Court. See C.P.L. § 470.35(1). Page 14 of 20 June 24, 2016 Level 1-Request for Information. To conduct a “request for information,” the police need an “objective credible reason.” Level 2-Common-Law Inquiry. To conduct a common-law inquiry, the police need a “founded suspicion.” Level 3-Pursuit, Detention, and Frisk. To pursue and/or detain, the police need a “reasonable suspicion.” During a detention, the police can frisk the outside of the detainee’s clothing if they have an independent basis to believe that he is “armed and dangerous.” Level 4-Arrest. The police need “probable cause.” See De Bour, 40 N.Y.2d at 223; Hollman, 79 N.Y.2d 181, 191-92 (1992); Terry v. Ohio, 392 U.S. 1 (1968); C.P.L. § 140.50(3). As the prosecution conceded below, when the officer yelled, “Police, don’t move,” he conducted a Level-2 common-law inquiry. See People v. Garcia, 20 N.Y.3d 317, 322 (2012) (an officer performs a Level-2 intrusion when the inquiry would cause a reasonable person to “believe that he or she is suspected of some wrongdoing”); see also Prosecution’s Post-Hearing Memorandum 7 (arguing that the police performed a common-law inquiry); Resp. App. Div. Br. 23-27 (same); Nonni, 135 A.D.3d at 55.7 As there was no “founded suspicion” as a matter of law, this common-law inquiry was unconstitutional. Its fruits should have been suppressed. The sole basis for the prosecution’s “founded suspicion” theory was that Mr. Nonni was “casually walking” on a large commercial establishment where a “burglary” had been reported. The police (1) had no description of the suspect (e.g., race, gender, or clothing); (2) knew nothing about the offense beyond “burglary”; and (3) did not know the number of suspects. Mere presence on the scene of commercial property—a purely innocuous act—cannot justify a founded suspicion. Thus, this common-law inquiry was unconstitutional. See De Bour, 40 N.Y.2d at 216 (“[I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand”); 7 Even if the initial inquiry were a Level-1 “request for information,” the controlling question is still whether mere presence on this commercial property established “founded suspicion.” In direct response to the initial inquiry, Mr. Nonni fled, and the police pursued/detained him. Under this Court’s precedents, the police can only pursue and detain based on “flight” if they observe independent evidence establishing a founded suspicion. E.g., People v. Holmes, 81 N.Y.2d 1056, 1058 (1993) (“Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information,” cannot justify pursuit and detention; instead the police must observe “flight” and “specific circumstances indicating that the suspect may be engaged in criminal activity”); People v. Woods, 115 A.D.3d 997, 998 (2d Dept 2014) (founded suspicion “ripen[s]” into “reasonable suspicion” upon a suspect’s flight); Barry Kamins, New York Search & Seizure § 2.04(2)(f) at 2.73-2.75 (2015 ed.). Thus, a flight-based detention was only constitutional if mere presence on the Country Club triggered a founded suspicion. Page 15 of 20 June 24, 2016 People v. Fields, 257 A.D.2d 387, 388 (1st Dept. 1999) (“Defendant’s activities . . . were all ‘susceptible of an innocent explanation,’ and merely provided the police officer with justification for [a] Level-1 [encounter]”) (internal citation omitted). This Court has never held that mere presence on the scene of a reported offense triggers a “founded suspicion.” Instead, this Court, and the Appellate Divisions, have required specific evidence linking the person to criminal activity. People v. Madera, 82 N.Y.2d 775, 775 (1993), aff’g, 189 A.D.2d 462, 464 (1st Dept 1993) (the defendant was present at the scene of a reported knife fight [“1411 Grand Concourse”] but he did not match the suspect’s clothing description; there was no founded suspicion because the police “had not the slightest indication that [the defendant] had committed any illegal act”); see People v. Moore, 6 N.Y.3d 496, 500 (2006) (individual was present on the scene of a reported offense and matched the reported description; police had a founded suspicion); People v. Woods, 98 N.Y.2d 627, 628 (2002) (founded suspicion established because the individual was present on the scene and matched the reported description); People v. Esquilin, 91 N.Y.2d 902, 904 (1998), aff’g 236 A.D.2d 245, 246 (1st Dept. 1997) (founded suspicion established because the detainees were present at the scene of a robbery, “repeatedly look[ed] over their shoulders” at the police as they “quickened their pace,” and then co-defendant shouted, “Come on man, let’s go. The cops are here”); see also People v. Smalls, 83 A.D.3d 1103, 1103-04 (2d Dept. 2011) (mere presence did not trigger a founded suspicion); People v. Reyes, 69 A.D.3d 523, 526-27 (1st Dept. 2010); Matter of Manuel D., 19 A.D.3d 128, 129 (1st Dept. 2005) (same). That rule has particular force in the context of commercial property. Merely walking on a commercial establishment is purely “innocuous” conduct. See De Bour, 40 N.Y.2d at 216; Fields, 257 A.D.2d at 388. Here, for instance, Mr. Nonni and Mr. Parker were “casually” walking down the driveway of a large, urban Country Club at 9:30 a.m. on a holiday.8 They were doing nothing suspicious. Just walking. That conduct was entirely consistent with a host of innocuous activities: (1) their being members of the Club; (2) their working at the Club; or (3) their visiting the Club for a commercial/social purpose. A report of criminal activity at a specific domestic residence is a different story. If, for instance, the police answer a “burglary” report at a suburban home and see someone walking down the driveway, they likely have a “founded suspicion.” See People v. Stroman, 107 A.D.3d 1023, 1024 (3d Dept. 2013). In that residential context, there tends to be fewer people on the premises, thus increasing the probability that the individual is the suspect. That same logic does not apply to this massive, commercial property which housed a country club, a residence, and a pier (SH 44; Pros. Ex. 1). There could have been hundreds of innocent people on this property, and the police 8 It was Dr. Martin Luther King Jr.’s Birthday. Page 16 of 20 June 24, 2016 had no “founded” reason to believe that two people they saw “casually walking” were involved in criminal activity. Barring common-law inquiries based on presence alone will not meaningfully undermine law-enforcement interests. Often, the police have at least some description of the suspects. In those cases, if the person matches some element of the description, a common-law inquiry is permissible. See Woods, 98 N.Y.2d at 628. But when, as here, the “report” contains no descriptive information, and there is no independent evidence tying the person to the report, a common-law inquiry is barred. Even if this rule ran counter to the government’s interest in law enforcement, De Bour’s central premise is that liberty trumps that interest. E.g., De Bour, 40 N.Y.2d at 216 (“Our recent decisions have emphasized the primacy of the right to be free from aggressive governmental interference”); Moore, 6 N.Y.3d at 502 (Smith, J., concurring) (limitations on police power are “based on important interests that compete with society’s interest in efficient law enforcement”). Simply put, “[p]rivacy comes at a cost.” Riley v. California, 134 S. Ct. 2473, 2493 (2014). As the common-law inquiry and subsequent detention were unconstitutional, their fruits—the two knives, duct tape, envelopes, and an identification—should have been suppressed as fruit of the poisonous tree. And without this unconstitutionally obtained evidence, the only evidence against Mr. Nonni was that he was walking in the robbery’s vicinity, which is plainly insufficient to establish guilt. Thus, this Court should reverse and order a new trial. See, e.g., People v. Crimmins, 36 N.Y.2d 230, 237-42 (1975). The trial must be preceded by an independent source hearing to determine if there is a lawful basis for Robert’s in-court identification. See People v. Gethers, 86 N.Y.2d 159 (1995). 2. This Question of Law Is Reviewable Mr. Nonni’s hearing and post-hearing arguments, combined with the court’s decision on the “founded suspicion” issue, preserved this “founded suspicion” argument. See C.P.L. § 470.05(2); SH 114-19 (counsel argued that merely walking on public property does not justify questioning or stopping); Pro Se Memo. of Law 7-8; Written Decision 13. The “mixed question” doctrine does not bar review. The lower courts committed a categorical error “of law” as they violated the standard established above: mere presence on the commercial scene of a reported offense does not, without more, create a “founded suspicion.” See People v. Diaz, 81 N.Y.2d 106, 108-09 (1993) (categorical questions of police-search power present questions of law); People v. Borges, 69 N.Y.2d 1031, 1033 (1987) (“[W]here, as here, the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented”). Page 17 of 20 June 24, 2016 Moreover, the constitutionality of the initial common-law inquiry is not a “mixed question” because there is no “record support” for the lower courts’ founded-suspicion determination. See People v. Gonzalez, 25 N.Y.3d 1100, 1102 (2015). The prosecution failed to make the “minimum showing necessary to establish” founded suspicion. See People v. Edwards, 69 N.Y.2d 814, 815 (1987). B. Additionally, the Envelopes and Money Should Have Been Suppressed Because, Absent the Authority of the Search- Incident-to-Arrest Exception, This Warrantless Search Was Unconstitutional. 1. The Search Was Unconstitutional The State bears the burden of justifying a warrantless search. People v. Jimenez, 22 N.Y.3d 717, 719, 721 (2014). The Terry “stop-and-frisk” doctrine authorizes “limited,” warrantless frisks of the “outer clothing.” See People v. Diaz, 81 N.Y.2d 106, 109 (1993) (emphasis added); Terry v. Ohio, 392 U.S. 1, 24-31 (1967). But as this Court has recognized, “There can be no question that reaching into defendant’s pocket and seizing [property] [are] not within the scope of the Terry pat-down.” Diaz, 81 N.Y.2d at 109 (emphasis added); Matter of Victor M., 9 N.Y.3d 84, 88 (2007) (“A temporary detention,” based upon reasonable suspicion, “justifies only a frisk, not a full-fledged search”); People v. Cobb, 208 A.D.2d 453, 453 (1st Dept. 1994); Terry, 392 U.S. at 24- 31; Sibron v. New York, 392 U.S. 40, 62-66 (1968); People v. Rivera, 14 N.Y.2d 441, 446-47 (1964); see also United States v. Aquino, 674 F.3d 918, 925-27 (8th Cir. 2012); United States v. Casado, 303 F.3d 440, 448-49 (2d Cir. 2002). Instead, an internal search of a detainee’s pockets is only constitutional if conducted under the “search-incident- to-arrest” exception—an exception that neither the Appellate Division nor the hearing court relied upon. E.g., Reid, 24 N.Y.3d at 618-19 (the search-incident-to-arrest exception requires probable cause and an arrest); Diaz, 81 N.Y.2d at 109; Victor M., 9 N.Y.3d at 88; United States v. Robinson, 414 U.S. 218, 227-28 (1973); Sibron, 392 U.S. at 62-66. Ignoring this mountain of precedent, the Appellate Division held that even if the search-incident doctrine does not apply, the police can nevertheless conduct an internal search of a detainee’s pocket under an “immediate protective search” power. Nonni, 135 A.D.3d at 58 (holding that although there was neither probable cause nor an arrest, the circumstances “justified an immediate protective search of each defendant’s bag and person”) (emphasis added). The only case the majority cited for this unprecedented “stop and search” power was Batista. See 88 N.Y.2d at 654. But Batista merely considered whether the frisk of the defendant’s “outer clothing” was supported by a “reasonable suspicion that the [defendant was] armed or pose[d] a threat to safety.” Id. at 652-53 (emphasis added). Batista never suggested that the police can search inside a person’s pocket without Page 18 of 20 June 24, 2016 reliance on the search-incident exception. See Peter Preiser, Practice Commentaries to C.P.L. § 140.50(3) (citing Batista for the proposition that “a search is not constitutionally permitted without a warrant or as an incident of arrest. The intrusion permitted where the justification is only ‘reasonable suspicion,’ is the limited one of patting down clothing to detect a weapon”) (emphasis added) (citing Batista, 88 N.Y.2d at 653-54 and Rivera, 14 N.Y.2d at 446-47). As the Appellate Division invented an unprecedented and unconstitutional search power, this Court should reverse. Alternatively, the search of a closed container (the envelopes) violated the state and federal constitutions. After reaching inside Mr. Nonni’s pocket, the officer seized envelopes, opened them, and removed the money inside. Even assuming the initial search’s constitutionality, it was unconstitutional to search a removed, closed container without the authority of the search-incident exception. See Jimenez, 22 N.Y.3d 717 (search of a bag seized during an arrest is only constitutional if the search-incident exception applies and there are exigent circumstances); People v. Smith, 59 N.Y.2d 454, 458 (1983); U.S. Const., Amend. IV; N.Y. Const. Art. I, § 12. 2. This Constitutional Error Was Not Harmless Beyond a Reasonable Doubt. The admission of evidence establishing Mr. Nonni’s possession of the robbery’s proceeds was not harmless beyond a reasonable doubt. To establish that constitutional error was harmless, the prosecution must overcome “the most demanding” harmless error “test yet formulated.” Crimmins, 36 N.Y.2d at 241. The prosecution bears the heavy burden of showing (1) “overwhelming evidence” and (2) “no reasonable possibility that the error might have contributed to [the verdict].” Id. at 237-42; id. at 241 (“[U]nless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error.”); Chapman v. California, 386 U.S. 18, 23-24 (1967). The prosecution cannot meet this heavy burden. The evidence of a forcible taking was not “overwhelming.” The prosecution’s case turned on the testimony of a complainant who was operating an underground, million-dollar gambling enterprise out of the Club. See Summation 802 (pressing that Robert was operating a “front” for a “criminal enterprise”). And his bizarre testimony was riddled with strange assertions. For example, Robert claimed that he collected one- million dollars in cash and then siphoned it out to “trusted” “neighbors” and “women that I know that are members” (Robert 205, 351-52). Even more bizarrely, despite the fact that he lived and worked on the Club for decades, Robert did not know who owned the Club or the property (Robert 349-51, 371). In the end, the jury had excellent reasons to doubt Robert’s story. See also Verdict 900-02 (jury acquitted both defendants of first- Page 19 of 20 June 24, 2016 degree robbery, thus rejecting Robert’s account of a knife-point robbery). As the prosecution’s case turned on Robert’s dubious testimony, the forcible-taking evidence was not “overwhelming.” Crimmins, 36 N.Y.2d at 241. Additionally, there is more than a “reasonable possibility” that evidence establishing Mr. Nonni’s possession of the robbery’s proceeds “contributed” to the verdict. Crimmins, 36 N.Y.2d at 241. That damaging evidence shored up a weak case. There is no doubt that the jury relied upon this evidence in finding guilt (id.). 3. This Argument Is Preserved. This search argument is preserved. In Mr. Nonni’s post-hearing submissions, which were adopted by counsel, he expressly argued that the prosecution did not meet its “burden” of justifying this warrantless “search” because it failed to show (1) “probable cause” and (2) that the “search was” performed “incident to a lawful arrest” (1/7/10 Memo of Law at 1 [emphasis added]; see also 1/6/10 Memo of Law at 7-8 [arguing that the “search” was performed without “probable cause”]; SH 117 and 125- 27 [counsel argued that there was no probable cause]). This is precisely the argument Mr. Nonni raised in the Appellate Division and is now raising here: this search was unconstitutional because it was not conducted under the “search incident to arrest” exception. See C.P.L. § 470.05(2); see also De Bour, 40 N.Y.2d at 214 (“[W]hen the defendant moves to suppress evidence and specifically challenges the authority of the police to accost the defendant as well as the subsequent search we believe that the issue has been preserved . . . The defendant’s suppression papers asserted, inter alia, that the initial restraint by the police was effected without consent, warrant, court order, or other lawful authorization”). The court’s decision similarly preserved this claim. See C.P.L. § 470.05(2). The suppression court did not rely upon a search-incident theory but instead, tracking the prosecution’s “protective search” theory (SH 133, 137), found the search “justified and lawful” because Officer Lemp “was cut by a knife” (see Decision 14 [“As he was being handcuffed, Officer Lemp was cut by a knife that was inside the backpack that [Mr. Nonni] was carrying. The seizure at that point, of the bag which contained two knives and a roll of duct tape, as well as the recovery of the three bank envelopes, each containing $1,000.00, from defendant’s pocket was likewise justified and lawful”]; see also id. at 15 [finding that probable cause arose after the identification]). As the court’s decision did not rely on a search-incident theory, the decision can only be interpreted Page 20 of 20 June 24, 2016 as an “express” endorsement of the only conceivable alternative theory: a “protective search” theory. C.P.L. § 470.05(2).9 CONCLUSION This Court should reverse the conviction and order a new trial. Sincerely, Matthew Bova Attorney for Appellant, Mark Nonni 9 Even if this meritorious claim were somehow unpreserved, counsel’s failure to preserve it was ineffective assistance of counsel. See U.S. Const. Amend VI, XIV; N.Y. Const. Art. I, § 6; People v. Bilal, 27 N.Y.3d 961, 962 (2016) (counsel’s failure to advance a meritorious suppression argument was ineffective assistance); People v. Clermont, 22 N.Y.3d 931, 934 (2014) (same); Hinton v. Alabama, 134 S. Ct 1081, 1088 (2014); Nix v. Whiteside, 475 U.S. 157, 175 (1986); Strickland v. Washington, 466 U.S. 668, 694 (1984).