The People, Respondent,v.Mark Nonni, Appellant.BriefN.Y.March 20, 2018COURT OF APPEALS STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARK NONNI, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 (212) 577-2523, ext. 543 mbova@cfal.org Matthew Bova, Of Counsel July 11, 2017 To Be Argued By: Matthew Bova 15 Minutes Requested APL-2016-00076 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................... i REPLY ARGUMENT .......................................................................................................... 1 POINT I. THE TRIAL COURT’S FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF TWO JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS VIOLATION ................................................................................................................... 1 A. This Court Should Reject Respondent’s Attempt to Overrule Decades of Precedent Holding that a Meaningful Notice Violation Constitutes a Mode of Proceedings Error. .......................................................................... 1 B. Prejudice Analysis is Inapplicable. ............................................................... 16 C. Walston, Silva, and Tabb Preclude a Reconstruction Hearing. ............... 20 POINT II. THE POLICE INTRUSIONS INTO APPELLANT’S PRIVACY WERE UNCONSTITUTIONAL. THEIR FRUITS SHOULD HAVE BEEN SUPPRESSED ......... 24 CONCLUSION ................................................................................................................... 27 WORD-COUNT CERIFICATION ................................................................................. 27 TABLE OF AUTHORITIES Cases Ashford v. State, 147 Md. App 1, 807 A.2d 732 (Md. App. Ct. 2002). ........................... 7 Delaware v. Van Arsdall, 475 U.S. 673 (1986) .................................................................. 19 Doerr v. Goldsmith, 25 N.Y.3d 1114 (2015) ........................................................ 5, 6, 7, 16 Henderson v. United States, 133 S. Ct. 1121 (2013) ........................................................ 13 Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997) ..................................................................... 23 K2 Inv. Group, LLC v. Am. Guar. & Liab. Ins. Co., 22 N.Y.3d 578 (2014) ................. 7 Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016) .................................. 6, 7 Payne v. Tennessee, 501 U.S. 808 (1991) ............................................................................ 6 People v. Agosto, 73 N.Y.2d 963 (1989) ............................................................... 16, 17, 18 People v. Ahmed, 66 N.Y.2d 307 (1985) ............................................................................. 9 -ii- People v. Albanese, 45 A.D.3d 69 (2d Dept. 2007) ......................................................... 18 People v. Alcide, 21 N.Y.3d 687 (2013) ................................................................ 2, 4, 5, 11 People v. Brooks, 65 N.Y.2d 1021 (1985) ......................................................................... 25 People v. Ciaccio, 47 N.Y.2d 431 (1979) ............................................................................. 8 People v. Collins, 99 N.Y.2d 14 (2002) ............................................................................. 17 People v. Concepcion, 17 N.Y.3d 192 (2011) ............................................................. 16, 24 People v. Cornado, 60 A.D.3d 450 (1st Dept. 2009) ....................................................... 18 People v. Damiano, 87 N.Y.2d 477 (1995) ....................................................................... 17 People v. Garson, 6 N.Y.3d 604 (2006) ............................................................................. 13 People v. Giles, 24 N.Y.3d 1066 (2014) ............................................................................ 16 People v. Hobson, 39 N.Y.2d 479 (1976). .................................................................... 7, 15 People v. Jones, 138 A.D.3d 541 (1st Dept. 2016) ........................................................... 23 People v. Kadarko, 14 N.Y.3d 426 (2010) .......................................................................... 5 People v. Kahley, 105 A.D.3d 1322 (4th Dept. 2013) ..................................................... 22 People v. Kisoon, 8 N.Y.3d 129 (2007) ...................................................................... passim People v. Lewis, 23 N.Y.3d 179 (2014) ............................................................................. 25 People v. Lourido, 70 N.Y.2d 428 (1987) ................................................................... 16, 18 People v. Mack, 27 N.Y.3d 534 (2016) ....................................................................... passim People v. Mehmedi, 69 N.Y.2d 759 (1987) ......................................................................... 8 People v. Mitchell, 129 A.D.3d 404 (1st Dept. 2015) ...................................................... 22 People v. Nealon, 26 N.Y.3d 152 (2015) .................................................................... passim People v. O’Rama, 78 N.Y.2d 270 (1991) .................................................................. passim People v. Powell, 101 A.D.3d 756 (2d Dept. 2012) ......................................................... 22 People v. Ramirez, 15 N.Y.3d 824 (2010) ..................................................................... 5, 11 People v. Samms, 95 N.Y.2d 52 (2000) ............................................................................... 9 People v. Silva, 24 N.Y.3d 294 (2014) ........................................................................ passim People v. Smith, 59 N.Y.2d 454 (1983) ............................................................................. 25 People v. Tabb, 13 N.Y.3d 852 (2009) ....................................................................... passim -iii- People v. Taylor, 9 N.Y.3d 129 (2007) ............................................................................ 6, 7 People v. Walston, 23 N.Y.3d 986 (2014) .................................................................. passim People v. Williams, 21 N.Y.3d 932 (2013)..................................................................... 4, 11 State Farm Mut. Auto. Ins. Co. v. Fitzgerald, 25 N.Y.3d 799 (2015) .............................. 7 Williams v. Illinois, 132 S. Ct. 2221 (2012) ........................................................................ 20 Statutes C.P.L. § 310.30 ............................................................................................................... passim C.P.L. § 470.15 ...................................................................................................................... 24 C.P.L. § 470.35 ...................................................................................................................... 24 L. 1995, ch. 83 ....................................................................................................................... 16 L. 1996, ch. 630 ..................................................................................................................... 16 L. 1999, ch. 66 ....................................................................................................................... 16 L. 2001, ch. 47 ....................................................................................................................... 16 L. 2002, ch. 588 ..................................................................................................................... 16 Other Authorities Black’s Law Dictionary (8th ed. 2004) ................................................................................. 6 Ira P. Robbins, Toward A More Just and Effective System of Review in State Death Penalty Cases, 40 Am. U. L. Rev. 1 (1990) ........................................................ 14 John H. Blume & Pamela A. Wilkins, Death by Default: State Procedural Default Doctrine in Capital Cases, 50 S.C. L. Rev. 1 (1998) ..................................................... 14 Kyle Graham, Tactical Ineffective Assistance in Capital Trials, 57 Am. U. L. Rev. 1645 (2008) ........................................................................................ 13 People v. Silva, Respondent’s Court of Appeals Brief ..................................................... 18 People v. Walston, Respondent’s Court of Appeals Brief .............................................. 20 People v. Walston, Transcript of Oral Argument (May 7, 2014) ................................... 23 Richard Posner, How Judges Think (2010 ed.). ................................................................. 8 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- MARK NONNI, Defendant-Appellant. REPLY BRIEF Appellant Mark Nonni submits this reply brief in response to Respondent’s brief, dated June 2, 2017. POINT I. THE TRIAL COURT’S FAILURE TO PROVIDE MEANINGFUL NOTICE OF THE CONTENTS OF TWO JURY NOTES CONSTITUTED A MODE OF PROCEEDINGS VIOLATION. A. This Court Should Reject Respondent’s Attempt to Overrule Decades of Precedent Holding that a Meaningful Notice Violation Constitutes a Mode of Proceedings Error. This Court has long held, and recently reaffirmed, that the failure to provide “meaningful notice”—that is, “notice of the actual, specific content” of a jury note—is a mode of proceedings error. Appellant’s Brief 23-29 (“AB”); C.P.L. § 310.30; People v. O’Rama, 78 N.Y.2d 270, 275-79 (1991) (squarely rejecting the theory that C.P.L. § 310.30 merely requires notice of the “existence of a juror inquiry and, perhaps, [its] basic substance,” and instead holding that C.P.L. § 310.30 mandates “meaningful -2- notice” of the note’s “actual, specific content”); O’Rama, 78 N.Y.2d at 279 (holding that the failure to provide meaningful notice is a mode of proceedings error because it deprives counsel of the ability to “participat[e] meaningfully in this critical stage of the trial”); accord People v. Mack, 27 N.Y.3d 534, 536-44 (2016); People v. Nealon, 26 N.Y.3d 152, 154-63 (2015); People v. Silva, 24 N.Y.3d 294, 298-300 (2014); People v. Walston, 23 N.Y.3d 986, 990 (2014); People v. Alcide, 21 N.Y.3d 687, 691-94 (2013); People v. Tabb, 13 N.Y.3d 852, 853 (2009); People v. Kisoon, 8 N.Y.3d 129, 134-35 (2007). O’Rama’s meaningful notice rule is the cornerstone of this Court’s C.P.L. § 310.30 jurisprudence, anchoring it for 26 years. See Silva, 24 N.Y.3d at 298-300 (mode of proceedings error occurred where the court failed to provide meaningful notice and failed to respond to the note); Walston, 23 N.Y.3d at 990 (mode of proceedings error occurred where the court provided notice that the note “exist[ed]” but failed to provide meaningful notice of its verbatim contents); Tabb, 13 N.Y.3d at 853 (same); Kisoon, 8 N.Y.3d at 134-35 (same); O’Rama, 78 N.Y.2d at 275-79 (same). As this Court held in Mack just one year ago: “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.” 27 N.Y.3d at 538-39 (emphasis added) (quoting O’Rama, 78 N.Y.2d at 277, and citing Nealon, 26 N.Y.3d at 156-57, Walston, 23 N.Y.3d at 989-90, Tabb, 13 N.Y.3d at 853, and Kisoon, 8 N.Y.3d at 134-35). -3- Meaningful notice is the “pivotal” factor, Mack held, “‘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.” 27 N.Y.3d at 541 (emphasis added) (quoting Nealon, 26 N.Y.3d at 157). “The disparate treatment” of meaningful notice violations and other O’Rama violations “arises from the practical difference between them; one prevents counsel from participating ‘meaningfully in this critical stage of the trial and the other does not.’” 27 N.Y.3d at 544 (quoting O’Rama, 78 N.Y. 2d at 279). Nealon reinforced the same core rule, holding that since O’Rama, this Court has “continued to” “sensibl[y]” hold that a meaningful notice violation constitutes a mode of proceedings error. 26 N.Y.3d at 157. “Our jurisprudence,” Nealon held, “seeks to ensure that all parties are on notice as to what the jury is asking. Without meaningful notice of the contents of a jury note, counsel cannot protect the interests of each party before the court. What to do with this knowledge is a decision for counsel to make.” Id. at 162; accord Walston, 23 N.Y.3d at 989-90 (court provided notice of the note’s “exist[ence]” but “omitted any reference to the note’s ‘intent’ language, hardly ‘a fair substitute for defense counsel’s own perusal of the communication.’ . . . Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required.”) (quoting O’Rama, 78 N.Y.2d at 277 and citing Tabb, 13 N.Y.3d at 853); Silva, 24 N.Y.3d at 299 -4- (without meaningful notice, the court cannot “‘maximize participation by counsel at a time when counsel’s input is most meaningful’”) (quoting Alcide, 21 N.Y.3d at 692); O’Rama, 78 N.Y.2d at 277 (absent meaningful notice, counsel “cannot participate effectively or adequately protect the defendant’s rights. . . . Indeed, the precise language and tone of the juror note may be critical to counsel’s analysis of the situation in the jury room and ability to frame intelligent suggestions for the fairest and least prejudicial response.”). Under this settled jurisprudence, the court—which exercises exclusive control over the jury’s notes—has an “affirmative obligation” and a “core responsibility” to provide meaningful notice. E.g., Silva, 24 N.Y.3d at 300; Tabb, 13 N.Y.3d at 853; Kisoon, 8 N.Y.3d at 134; O’Rama, 78 N.Y.2d at 276-79. It is only after the court discharges that “fundamental” and “core” obligation that counsel has an obligation to object to the court’s handling of the note. E.g., Silva, 24 N.Y.3d at 299. Thus, this Court’s recent precedent confirms that meaningful notice is the “touchstone” of the mode of proceedings analysis. Compare, Walston, 23 N.Y.3d at 990, Silva, 24 N.Y.3d at 300, Tabb, 13 N.Y.3d at 853, and Kisoon, 8 N.Y.3d at 134-35, with Mack, 27 N.Y.3d at 541-42 (failure to provide a response to a note was not a mode of proceedings error because, unlike here, the court provided verbatim notice), Nealon, 26 N.Y.3d at 161-62 (trial court’s failure to “discuss” a note “with counsel outside the presence of the jury” required preservation because the court called the jury into the courtroom and read the note verbatim before responding), People v. Williams, 21 N.Y.3d 932, 934-35 (2013) -5- (same), Alcide, 21 N.Y.3d at 693-694 (same), People v. Ramirez, 15 N.Y.3d 824, 825- 826 (2010), People v. Kadarko, 14 N.Y.3d 426, 428-30 (2010) (no mode of proceedings error because the court summarized a deadlock note before responding and then provided verbatim notice after responding). Under this Court’s firmly-entrenched jurisprudence, the trial court’s failure here to provide meaningful notice was a mode of proceedings error. AB 23-32. “[R]eversal is required.” Mack, 27 N.Y.3d at 538 (citing Walston, 23 N.Y.3d at 989; Tabb, 13 N.Y.3d at 853; Kisoon, 8 N.Y.3d at 134-35). Nevertheless, to avoid reversal, Respondent seeks to delete hundreds of pages from the New York Reports “simply” because it “disagree[s] with” this Court’s settled jurisprudence. See Doerr v. Goldsmith, 25 N.Y.3d 1114, 1138 (2015) (Abdus-Salaam, J., concurring); Respondent’s Brief 41-45 (“RB”). Respondent ambitiously aims to overrule O’Rama’s core holding that a “meaningful notice” violation is a mode of proceedings error. RB 41-45. Respondent would have this Court replace its longstanding mode of proceedings jurisprudence with a brand-new preservation regime. RB 41-42. Under that new standard, even if counsel lacks notice of the note’s contents, counsel must object so long as he knows the note “exists.” RB 42.1 Stare 1 Under Respondent’s newly-minted rule, a “mode of proceedings” error would also occur when the court “refuses counsel’s request to see the verbatim contents of the note.” RB 42. But under traditional preservation rules, counsel’s request to see the note would preserve the claim, thus rendering mode of proceedings analysis irrelevant. Id. -6- decisis, and the sound policies underlying this Court’s O’Rama jurisprudence, preclude Respondent’s reconfiguration of settled law.2 * * * Firmly committed to the principle of stare decisis, this Court rarely overrules precedent. Under that ancient doctrine, “a court’s decision on an issue of law should generally bind the court in future cases that present the same issue.” Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 23 (2016); see also People v. Taylor, 9 N.Y.3d 129, 148 n. 13 (2007) (“‘Stare decisis et non quieta movere’ is a Latin phrase that means ‘to stand by things decided, and not to disturb settled points.’”) (quoting Black’s Law Dictionary 1443 (8th ed. 2004)). Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Taylor, 9 N.Y.3d at 148 (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). At its core, stare decisis precludes a court from “succumb[ing] to the very human impulse to cast aside or chip away at those rulings with which they simply disagree.” E.g., Goldsmith, 25 N.Y.3d at 1138 (Abdus-Salaam, J., concurring); see id. at 1136 (a mere change in the “composition 2 Before seeking to “abrogate” longstanding jurisprudence defining meaningful notice as notice of the note’s actual contents, e.g., Mack, 27 N.Y.3d at 536-44; Nealon, 26 N.Y.3d at 157; Walston, 23 N.Y.3d at 990, Respondent appears to argue that this Court has previously held that meaningful notice is satisfied by mere notice that a note exists. RB 39-40. That is not, and has never been, the law. See Reply Brief, above, at 1-4. -7- of this Court” cannot justify overruling precedent); Taylor, 9 N.Y.3d at 148 (stare decisis is premised on the “humbling assumption, often true, that no particular court . . . possesses a wisdom surpassing that of its predecessors. Without this assumption there is jurisprudential anarchy”) (quoting People v. Hobson, 39 N.Y.2d 479, 488 (1976)). This Court will only take the “drastic” step of overruling precedent if “an extraordinary combination of factors” and a “compelling justification” warrant doing so. Brooke S.B., 28 N.Y.3d at 23; State Farm Mut. Auto. Ins. Co. v. Fitzgerald, 25 N.Y.3d 799, 819 (2015); Silva, 24 N.Y.3d at 300. Here, Respondent’s attempt to overrule a longstanding “precedential juggernaut”3 fails under stare decisis. Respondent has provided no good reason, let alone a “compelling” or “extraordinary” one, to overrule this Court’s jurisprudence. First, Respondent does not claim that O’Rama’s meaningful notice standard is confusing or unworkable. Goldsmith, 25 N.Y.3d at 1135 (Abdus-Salaam, J., concurring) (adhering to settled law because “[n]o party to this litigation has suggested that the courts are incapable of consistently applying [the precedent sought to be overruled]”); K2 Inv. Group, LLC v. Am. Guar. & Liab. Ins. Co., 22 N.Y.3d 578, 587 (2014) (declining to overrule precedent that had not “prove[n] unworkable”). 3Ashford v. State, 147 Md. App 1, 20, 807 A.2d 732, 743 (Md. App. Ct. 2002). -8- That is not surprising. The meaningful notice touchstone has provided crystal- clear guidance to the trial and appellate courts for decades. That standard is beautifully simple: to comply, the trial court need only hand counsel the note (or read it out loud). And to enforce that rule, appellate courts need only ensure that the record establishes compliance with a simple mandate. This Court should adhere to this readily- administrable precedent. O’Rama’s mode of proceedings rule has had an important impact on the trial courts. “Since judges do not like to be reversed,”4 O’Rama has successfully incentivized C.P.L. § 310.30 compliance. It is now common for trial courts to ask, “Counsel, have you read the note?” O’Rama has thus had its intended effect: more notice to counsel, more helpful responses to the jury’s questions, and fairer trials. This Court should not now march backwards, creating a diluted “notice of the note’s existence” standard. O’Rama’s holding is also perfectly “sensible,” as this Court expressly observed just two years ago in Nealon. 26 N.Y.3d at 157. As in numerous other contexts, this Court has held in O’Rama and its progeny that an important right should be vindicated regardless of preservation. Kisoon, 8 N.Y.3d at 134-35 (emphasizing the potentially outcome-determinative nature of the jury-note stage); O’Rama, 78 N.Y.2d at 277 (the jury-inquiry stage is “critical”) (citing People v. Ciaccio, 47 N.Y.2d 431, 436 (1979)); see O’Rama, 78 N.Y.2d at 279 (citing People v. Mehmedi, 69 N.Y.2d 759, 760 (1987) 4 Richard Posner, How Judges Think, 70 (2010 ed.). -9- (failure to honor the defendant’s C.P.L. § 310.30 right to be present during a response to a jury inquiry is a mode of proceedings error) and People v. Ahmed, 66 N.Y.2d 307, 310-11 (1985) (same; delegation of the judicial function)); see also People v. McLean, 15 N.Y.3d 117, 120-22 (2010) (violation of the right to counsel is immune from preservation requirements); People v. Samms, 95 N.Y.2d 52, 56 (2000) (same; imposition of an illegal sentence). O’Rama’s holding is thus consistent with a long line of jurisprudence confirming that some rights are too important to ignore because counsel did not object. O’Rama’s holding is also logical. O’Rama and its progeny confirm that C.P.L. § 310.30 places an “affirmative obligation” on the trial court to provide meaningful notice. E.g., Silva, 24 N.Y.3d at 300; Tabb, 13 N.Y.3d at 853; Kisoon, 8 N.Y.3d at 134. This “core responsibility” belongs to the court—and the court alone. Kisoon, 8 N.Y.3d at 134. Under that rubric, the burden to object does not shift to counsel until the court fulfills its core meaningful notice obligation. For 26 years now, this Court has carefully enforced that affirmative duty, holding that its breach is a mode of proceedings error. Additionally, O’Rama correctly recognized that counsel’s ability to analyze the court’s handling of a note, and thus to object, is seriously compromised when the court fails to provide meaningful notice. 78 N.Y.2d at 277-79. O’Rama and its progeny thus confirm that the defendant should not suffer because the judge deprived counsel, even inadvertently, of crucial information. O’Rama, 78 N.Y.2d at 276-79; Mack, 27 N.Y.3d at 541, 544; Nealon, 26 N.Y.3d at 157. -10- In challenging this Court’s repeated holdings, Respondent cites the theoretical possibility that counsel could object if counsel merely knows a note “exists.” RB 41-42. But critically, Respondent does not deny that the meaningful notice duty lies with the court, not with counsel. Reply Brief, above, at 4, 9; Silva, 24 N.Y.3d at 300; Tabb, 13 N.Y.3d at 853; Kisoon, 8 N.Y.3d at 134. Nor does Respondent challenge the basic reality that a meaningful notice violation significantly impedes counsel’s ability to represent his client during this critical stage. Reply Brief, above, at 3-4, 9; Mack, 27 N.Y.3d at 541, 544; Nealon, 26 N.Y.3d at 157; Silva, 24 N.Y.3d at 299; Walston, 23 N.Y.3d at 900. This Court should reaffirm those longstanding—and apparently uncontested—principles here. O’Rama itself proves that the court’s failure to uphold its core responsibility places counsel at a significant disadvantage. There, the court summarized a note, stating that it indicated “continued disagreements among the jurors.” 78 N.Y.2d at 275. The court, however, omitted the note’s specific contents, including the juror’s belief that further deliberations would be hopeless and that the jury was “split down the middle HELP 6/6.” 78 N.Y.2d at 275 n. 2 (emphasis in note). As the O’Rama jury had previously indicated a deadlock and already received an Allen charge, id. at 275, meaningful notice was crucial to counsel’s assessment of whether a mistrial (on hung jury grounds) was appropriate. But as the court failed to provide notice of the note’s specific contents, counsel’s ability to request a mistrial was significantly impeded. Id. at 275-79. -11- Here too, the court’s failure to provide meaningful notice of the two substantive notes prevented counsel from meaningfully representing his client. Had the court informed counsel of the actual contents of the readback requests, counsel could have: asked “the court [to] respond to the outstanding notes before taking the verdict”; or requested “that the court ask the jurors whether they still desired a response to th[e] notes.” Mack, 27 N.Y.3d at 543; see AB 26. Further, sensing that an immediate response would have advanced Appellant’s interests, counsel could have asked the court to respond immediately or requested that the court instruct the jury to wait for a response before resuming deliberations. AB 26 n. 6. The trial court’s failure to provide meaningful notice thus significantly impeded counsel’s ability to object to the court’s handling of the note. In an attempt to demonstrate some sort of seismic shift in this Court’s meaningful notice jurisprudence, Respondent suggests that recent precedent has “un[wound]” that jurisprudence. RB 41-42 (citing Ramirez, 15 N.Y.3d 824, Williams, 21 N.Y.3d 932, Alcide, 21 N.Y.3d 687, Nealon, 26 N.Y.3d 152, and Mack, 27 N.Y.3d 534). Quite to the contrary, in these recent cases, the trial court provided meaningful notice of the jury note’s contents. For that reason—and that reason alone—this Court required preservation. Mack, 27 N.Y.3d at 539 n. 2, 542-43; Nealon, 26 N.Y.3d at 160- 62; Alcide, 21 N.Y.3d at 693-94; Williams, 21 N.Y.3d at 934-35; Ramirez, 21 N.Y.3d at 825-26. Far from “unwinding” this Court’s commitment to O’Rama’s meaningful notice mandate, this recent precedent reinforces it. See Walston, 23 N.Y.3d at 990; -12- Mack, 27 N.Y.3d at 539 (“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.”) (emphasis added); Nealon, 26 N.Y.3d at 162 (same). Respondent also attempts to reframe O’Rama’s holding itself, apparently casting it as merely holding that preservation does not apply when the court deliberately withholds the note’s contents. RB 40, 42 (citing O’Rama, 78 N.Y.2d at 275, 279). This suggestion is puzzling. This Court has never drawn a distinction between “willful” and “careless” meaningful notice violations. And for good reason: that distinction is illogical. In both scenarios, the violation’s impact on the fairness of the process is identical: counsel cannot “‘participate meaningfully in this critical stage of the trial.’” Mack, 27 N.Y.3d at 544; O’Rama, 78 N.Y.2d at 277-79. Taking a jab at O’Rama’s construction of C.P.L. § 310.30’s “notice” requirement, Respondent also contends that since C.P.L. § 310.30 does not expressly say notice must be “meaningful,” this Court’s “meaningful notice” rule is an overbroad “judicially devised” concept. RB 44-45. That is hardly true. O’Rama correctly concluded that C.P.L. § 310.30’s notice mandate would be useless if it merely gave defendants and their lawyers the right to know a note “exists.” 78 N.Y.2d at 277 (“We conclude that ‘meaningful’ notice in this context means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given.”). Far from the judicial invention Respondent imagines, O’Rama engaged in common-sense statutory -13- construction, holding that the Legislature did not intend a watered-down and toothless “notice” right. 78 N.Y.2d at 276-279; e.g., People v. Garson, 6 N.Y.3d 604, 614 (2006) (courts “must interpret a statute so as to avoid an unreasonable or absurd application of the law”) (internal quotations omitted). Respondent’s “deliberate sandbagging” theory fares no better. RB 43-44. In Respondent’s view, defense lawyers have been—apparently for 26 years now— deliberately sitting mute while the court responds (or fails to respond) to a note they know nothing about. Id. This is so, the theory goes, because counsel would rather pocket an appellate claim than do everything possible to win at trial. Id.5 “Like the unicorn,” this willfully blind and hyper-strategic lawyer “finds his home in the imagination, not the courtroom.” Henderson v. United States, 133 S. Ct. 1121, 1129 (2013). When counsel merely knows a note “exists,” but knows nothing about its substance, counsel cannot possibly assess whether the court’s failure to respond will help (or hurt) his client. See, e.g., Kyle Graham, Tactical Ineffective Assistance in Capital Trials, 57 Am. U. L. Rev. 1645, 1648-49 & 1647 n. 10 (2008) (explaining that an intentional sandbagging “hypothesis suffers from several flaws” but that, in any event, it can only work as a strategy if counsel has the “knowledge and perspective that will 5 Respondent claims there is no “trade off for” sitting mute and “allowing the court to take the jury’s verdict,” suggesting that counsel gains nothing by learning the substance of a note. RB 43. Respondent’s confusion on this score stems from its refusal to recognize the fundamental distinction between notice that a note exists (virtually useless information) and notice of the note’s “‘actual specific content’” (information that maximizes counsel’s ability to represent his client). E.g., Mack, 27 N.Y.3d at 542-43 (quoting O’Rama, 78 N.Y.2d at 277). -14- allow him or her to foresee the utility of sandbagging in a given case”).6 Similarly, when the court answers the note without providing meaningful notice, counsel cannot assess whether the response is fair or whether a distinct response would be better. Thus, only a foolish lawyer moves through this critical stage deliberately ignorant of the note’s substance. This Court should not discard established precedent under the premise that trial lawyers are foolish and not principally concerned with “winning at trial.” See Ira P. Robbins, Toward A More Just and Effective System of Review in State Death Penalty Cases, 40 Am. U. L. Rev. 1, 117 (1990) (noting “the strong tendency of trial . . . lawyers . . . to be far more concerned with winning at trial . . . than with possible means of relief thereafter; they have little or no inclination to pass up an opportunity to succeed in their own endeavors on the chance that some other lawyer might succeed in a later proceeding.”). To the extent Respondent relies on Mack and Nealon to support its “intentional sandbagging” theory, RB 43-44, those cases are distinguishable in a key respect. This Court feared intentional gamesmanship there because counsel had verbatim notice, thus theoretically permitting analysis of the costs/benefits of sitting mute. See Mack, 27 N.Y.3d at 543 (“Counsel, who was aware that the jury’s last note before the recess declared a deadlock, may have decided that the jurors were more likely to acquit 6 John H. Blume & Pamela A. Wilkins, Death by Default: State Procedural Default Doctrine in Capital Cases, 50 S.C. L. Rev. 1, 17-18 (1998) (“[T]o be capable of sandbagging, counsel must possess a vast storehouse of legal knowledge.”). -15- defendant if they were not given the chance to deliberate further.”) (emphasis added) (citing Nealon, 26 N.Y.3d at 162 (“In this and similar scenarios, counsel has knowledge of . . . the precise content of the jury’s note, which was read verbatim into the record in the presence of counsel and the jury . . . If we held this particular departure from O’Rama to be a mode of proceedings error, however, it would be unwise for counsel to object and seek correction of the error[.]”) (emphasis added)). That logic does not apply when counsel merely knows a note exists. Under those circumstances, counsel cannot calculate the strategic value of sitting mute while praying for appellate relief if the reckless strategy backfires. In any event, Respondent does not claim that in this context (counsel knows a note exists but not its contents), “deliberate sandbagging” is common—and it would be absurd to suggest as much. Respondent does not cite a single example of a sandbagging lawyer, instead asking this Court to take its word that such a lawyer probably exists. Respondent’s baseless “concern” is hardly a “compelling” or “extraordinary” justification for discarding a long line of venerable precedent. Finally, stare decisis is at its highest ebb in this context because the “Legislature’s competency to correct” this Court’s O’Rama jurisprudence is—and has been for 26 years—“readily at hand.” Hobson, 39 N.Y.2d at 489. Nevertheless, although the Legislature has repeatedly modified Article 310 in the last 26 years, it has not tinkered -16- with O’Rama.7 Thus, not only has this Court honored the O’Rama holding for decades—the Legislature has too. See People v. Concepcion, 17 N.Y.3d 192, 201 (2011) (explaining that “[l]egislative inaction . . . may, after all, signal satisfaction” with this Court’s precedents) (parenthetical omitted). “At this late date, the question should be considered settled.” Goldsmith, 25 N.Y.3d at 1139 (Abdus-Salaam, J., concurring) (quoting People v. Giles, 24 N.Y.3d 1066, 1073 (2014) (Smith, J., concurring)). * * * O’Rama’s meaningful notice touchstone has guided this Court’s jurisprudence for decades. It should continue to do so here. As the trial court failed to comply with O’Rama’s meaningful notice mandate, this Court should reverse and order a new trial. B. Prejudice Analysis is Inapplicable. Citing People v. Agosto, 73 N.Y.2d 963 (1989)—a pre-O’Rama case which is no longer good law8—and applying a three-pronged prejudice test, Respondent speculates that the court’s failure to provide meaningful notice and a meaningful response worked no prejudice. RB 35-39; Agosto, 73 N.Y.2d at 966 (“It is only where the failure to respond to a jury note ‘seriously prejudice[s]’ defendant that a reversal is required.”) (quoting People v. Lourido, 70 N.Y.2d 428, 435 (1987)). Respondent speculates that the jury “resolved” the substantive issues addressed by its notes without receiving a 7 L. 1995, ch. 83, § 209; L. 1996, ch. 630, § 2; L. 1999, ch. 66, § 1; L. 2001, ch. 47, §§ 2, 3; L. 2002, ch. 588, § 1. 8 AB 30-31; Mack, 27 N.Y.3d at 540; Silva, 24 N.Y.3d at 300 n. 1. -17- response. RB 35-39. Respondent further guesses that, although the court did not answer its notes for over two hours, the jury did not believe the court was declining to give “‘favorable consideration to their request.’” RB 36 (quoting Agosto, 73 N.Y.2d at 966). Therefore, the speculative theory goes, this mode of proceedings error had no impact on the verdict. RB 35-39. Mack and Silva foreclose this prejudice theory. AB 30-31. Mack confirmed that “[m]ode of proceedings errors are immune from . . . harmless error analysis” and “require reversal without regard to the prejudice, or lack thereof, to the defendant.” 27 N.Y.3d at 540. Mack’s holding forecloses Respondent’s reliance on the Agosto/Lourido “prejudice” standard here. 27 N.Y.3d at 540; see also People v. Damiano, 87 N.Y.2d 477, 485 (1995) (trial court committed mode of proceedings error by submitting an annotated verdict sheet in violation of C.P.L. § 310.30; this Court “reject[ed] the dissent’s attempt to seek refuge in harmless error as an alternative approach to abrogate the statutory mandate, and diminish the cogency of our decisions strictly construing this provision. . . . As any attempt to evaluate the impact of these annotations is necessarily predicated on speculation about the thought processes of the jurors, a harmless error analysis is inappropriate.”); see also People v. Collins, 99 N.Y.2d 14, 17 (2002). Further, Silva—which, as here, concerned the court’s acceptance of a verdict without providing meaningful notice or a response—squarely rejected Respondent’s precise Agosto-prejudice argument: -18- Nor are we persuaded by the dissent[ ] [and prosecution’s] reliance on pre-O’Rama cases that imposed a ‘serious prejudice’ requirement (citing, with disapproval, Agosto, 73 N.Y.2d at 966 and Lourido, 70 N.Y.2d at 435). 24 N.Y.3d at 300 n. 1; People v. Silva, Respondent’s Court of Appeals Brief 39-46 (advancing the same prejudice theory Respondent now advances and even citing the same Appellate Division precedent) (citing People v. Albanese, 45 A.D.3d 69 (2d Dept. 2007), and People v. Cornado, 60 A.D.3d 450 (1st Dept. 2009)); RB 35-39; see also AB 30-31. Indeed, it was the Silva dissent, not the majority, that concluded that “[c]ases in which the jury sends a note and then returns a verdict before the court has answered have always been, and should still be, governed by our decisions in People v. Lourido and People v. Agosto, which require reversal only where the defendant is prejudiced by the failure to respond.” Silva, 24 N.Y.3d at 301-02 (Smith, J., dissenting) (internal citations omitted). Oddly, Respondent does not mention Silva’s rejection of the Agosto-prejudice standard it now proposes. AB 35-39. Instead, Respondent claims that Agosto is “one of the only times” this Court has “examined” prejudice analysis when the jury returns a verdict while a note is outstanding. RB 36 n. 16. That is wrong. This Court not only “examined” this precise issue in Silva—it squarely held that the jury’s reaching a verdict while a note is outstanding does not save a mode of proceedings violation. 24 N.Y.3d at 300 n. 1. -19- Perhaps more fundamentally, Respondent’s speculative prejudice argument ignores the core function of meaningful notice: it “maximizes” counsel’s ability to represent his client during this critical stage. See Point I.A., above; Silva, 24 N.Y.3d at 299. As explained above, had the court discharged its obligation to provide meaningful notice, counsel could have: (1) asked the court to “respond to the outstanding notes before taking the verdict”; (2) requested “that the court ask the jurors whether they still desired a response to th[e] notes”; or (3) told the court to instruct the jury not to deliberate further until it first received a response. Reply Brief, above, at 11 (quoting Mack, 27 N.Y.3d at 543); AB 26 & 26 n. 6. Thus, had the court complied with its duty to maximize counsel’s participation, the jury may very well have received a response to its substantive inquiries. Respondent’s prejudice theory is thus rooted in the illogical premise that the violation of a right designed to maximize counsel’s participation during this critical stage nonetheless had no impact on the outcome of this critical stage. That circular theory has already failed before, Mack, 27 N.Y.3d at 540; Silva, 24 N.Y.3d at 300 n. 1, and it should fail here too. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (when trial courts violate the confrontation right, appellate courts must assume the right’s benefits would have been “fully realized”). -20- C. Walston, Silva, and Tabb Preclude a Reconstruction Hearing. Respondent argues that this Court should order a reconstructing hearing to reconstruct a record seven years after this 2010 trial. “But once again: been there, done that.”9 In Walston, the prosecution expressly sought “a reconstruction hearing” to “allow” the “court to specify on the record whether the exact content of the jury note was disclosed to defense counsel.” People v. Walston, Respondent’s Court of Appeals Brief 31.10 After finding that the record failed to establish meaningful notice, Walston did not order a reconstruction hearing. Instead, Walston reversed the judgment and ordered a new trial. 23 N.Y.3d at 989-90. In doing so, Walston confirmed that the original record must affirmatively establish O’Rama compliance: Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case— preservation is not required. Where a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to. Id. at 990 (citing Tabb, 13 N.Y.3d at 853 (“Nothing in the record indicates that the court informed defense counsel and the prosecutor about the contents of the note. In 9 Williams v. Illinois, 132 S. Ct. 2221, 2275 (2012) (Kagan, J., dissenting). 10 An excerpt from this Walston brief, and from the oral argument in Walston, have been supplied in Appellant’s supplemental compendium of cited materials. -21- the absence of record proof that the trial court complied with its core responsibilities under C.P.L. § 310.30, a mode of proceedings error occurred requiring reversal.”)). Walston’s rejection of a “reconstruction hearing” flowed from O’Rama’s declaration that courts must “ensure a clear and complete record, thereby facilitating adequate and fair appellate review.” O’Rama, 78 N.Y.2d at 278. Within months of the Walston decision, Silva expressly rejected the prosecution’s request to “disavow our holding in Walston that imposes an affirmative obligation on a trial court to create a record of compliance under C.P.L. § 310.30 and O’Rama.” Silva, 24 N.Y.3d at 300 (emphasis added). Walston’s imposition of this “affirmative obligation,” Silva explained, “broke no new ground—it built upon prior law.” 24 N.Y.3d at 300 (citing Tabb, 13 N.Y.3d at 853). And as in Walston, Silva held that since there was no “record of compliance with the O’Rama guidelines,” “defendants are entitled to new trials.” 24 N.Y.3d at 300-01. Silva then reiterated a clear message to the bench and bar: O’Rama problems can be “easily avoided by making a record of compliance.” Id. at 300-01. Although Tabb, Walston, and Silva shut the reconstruction-hearing door, Respondent stubbornly insists otherwise. Instead of the “eas[y]” solution those cases provide—“make a record”—Respondent petitions for an artificial reconstruction hearing that will feature guesswork about events occurring thousands of days earlier. As with Respondent’s other attempts to circumvent precedent, this Court should soundly reject Respondent’s effort to relitigate issues settled by Walston, Silva, and -22- Tabb. See also People v. Powell, 101 A.D.3d 756, 758-59 (2d Dept. 2012) (holding that the prosecution was not entitled to a reconstruction hearing to “demonstrate” that the court “reveal[ed] the contents of the jury note to counsel in an off-the-record conversation”; a party cannot “create a new portion of the record, which could have been, but was not, created at trial. This is not a proper basis for a resettlement motion.”). To justify its reconstruction hearing request, Respondent does not even discuss Silva, Walston, or Tabb. Instead, Respondent cites pre-Walston/Silva Appellate Division precedent (e.g., People v. Kahley, 105 A.D.3d 1322, 1325-26 (4th Dept. 2013)), and a curt, post-Silva decision from the First Department (People v. Mitchell, 129 A.D.3d 404, 404 (1st Dept. 2015)). RB 46-48. But those Appellate Division cases are not the law—this Court’s decisions in Walston, Silva, and Tabb are. “Disavowing” this Court’s precedents would create serious problems. At best, these new reconstruction hearings will be plagued by faulty memories of unmemorable events (from thousands of days prior). At worst, these hearings will be result-oriented, featuring witnesses who substitute what they hoped happened for what actually happened. It will be impossible to have any confidence in the result of these artificial reconstruction hearings. Respondent’s theory that reconstruction is available whenever the record possibly omitted something would also require our appellate courts to pen a new reconstruction-hearing treatise. Our courts would have to grapple with the numerous issues that will ultimately arise, including (but certainly not limited to): (1) the standards -23- governing the availability of this new remedy; (2) the procedures that apply during these reconstruction hearings; and (3) the types of appellate claims that are subject to these reconstruction procedures. Subjective, unworkable standards will line this new treatise. And what an unnecessary effort that protracted litigation would be. After all, this Court’s cases already establish the easy solution: the court must make a record. Silva, 24 N.Y.3d at 300-01; Walston, 23 N.Y.3d at 990; Tabb, 13 N.Y.3d at 853. Respondent’s reconstruction theory also has no logical stopping point. Appellate courts have long held that if the transcript does not indicate that “X” occurred, it did not occur. For instance, if the record indicates that counsel may have objected during an off-the-record bench conference (but counsel failed to place the objection on the record), a defendant cannot secure a reconstruction hearing to establish preservation. People v. Jones, 138 A.D.3d 541, 541 (1st Dept. 2016).11 Respondent’s proposal, however, would radically alter appellate procedure, potentially triggering “reconstruction hearings” every time a litigant can hypothesize that something possibly happened off the record. While it is hard to predict how far courts and litigants will stretch this new theory, one thing is certain: this Court should 11 During the Walston oral argument, Judge Smith put it well when he queried: “Isn’t . . . that sort of the way the Anglo Saxon legal system works? I mean, you haven’t done it unless you’ve done it on the record . . . it’s unusual to say well, I gave notice, it just doesn’t happen to be in the record.” See Supplemental Compendium at 5 (Transcript of Oral Argument (May 7, 2014)). In rejecting a reconstruction hearing, Silva and Walston applied that ancient rule of appellate procedure, characterized by some appellate courts as an “old legal truism: God may know but the record must show.” Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997). -24- not accept the risk of this inefficient procedural invention. This Court should simply apply Walston, Silva, and Tabb and deny Respondent’s request for a reconstruction hearing. POINT II. THE POLICE INTRUSIONS INTO APPELLANT’S PRIVACY WERE UNCONSTITUTIONAL. THEIR FRUITS SHOULD HAVE BEEN SUPPRESSED. Appellant’s pro se, post-hearing submissions notified the court that an internal search must be conducted incident to arrest. A 90. Appellant has advanced that precise argument before this Court, pressing that absent the authority of the search-incident- to-arrest doctrine—upon which neither of the lower courts relied—this internal search was unconstitutional. AB 38-43; see also C.P.L. §§ 470.15(1), 470.35(1); Concepcion, 17 N.Y.3d at 196.12 Attacking the sufficiency of a pro se argument submitted by a defendant whose lawyer abandoned him during this critical stage, Respondent claims that Appellant’s claim is unpreserved because his pro se argument was advanced in a “quotation of law,” did not cite case law, and was insufficiently eloquent. RB 26 & 26 n. 11. But Mr. Nonni’s submissions placed the court on notice of the longstanding rule that an internal search 12 As to Appellant’s argument that the initial common law inquiry and pursuit were unconstitutional, AB 32-37, Appellant rests on his opening brief, except to point out that Respondent improperly relies upon trial evidence to justify the suppression ruling. RB 21 n. 9. -25- must be conducted incident to arrest. That is all preservation rules require. AB 43-44 (citing People v. Lewis, 23 N.Y.3d 179, 188 (2014)). Regardless of preservation, the Appellate Division expressly reached this constitutional question of law, holding that absent the authority of the search-incident doctrine, the police can, under the Terry stop-and-frisk doctrine, perform an internal protective search. A 15. That pure question of law is squarely within this Court’s wheelhouse, preservation or not. See AB 44-48. Respondent does not answer Appellant’s argument that it is absurd to bar this Court from reviewing a pure question of law that the Appellate Division reached. AB 44-48. Instead, Respondent vaguely offers that this formalistic procedural limitation “protects the integrity of the criminal process.” RB 27. On the contrary, that limitation undermines that integrity since it prevents this Court from correcting the Appellate Division’s unconstitutional decision. AB 44-48. This Court should reject this senseless inversion of New York’s appellate hierarchy, which compromises this Court’s pivotal role as final arbiter of state law. AB 44-48. Appellant alternatively argued (AB 42) that even if the internal search were constitutional, a “safety search” of the envelopes was unconstitutional because the envelopes were too small to contain a weapon. See People v. Brooks, 65 N.Y.2d 1021, 1023 (1985); People v. Smith, 59 N.Y.2d 454, 458-59 (1983). As to the merits of that argument, Respondent offers no argument whatsoever. Suppression counsel’s failure -26- to advance this “colorable” argument was ineffective assistance, thus, at a minimum, warranting remand for a hearing. AB 50-52.13 Finally, Respondent claims that a phone call between Appellant and “Anthony Devita,” who never testified at trial,14 is overwhelming evidence of Appellant’s involvement in a robbery, thus rendering evidence of Appellant’s possession of the robbery’s proceeds harmless. RB 32-33. But a phone call to a man who never testified and was merely mentioned by the incredible Robert Ederle as visiting the club days before the incident, proves very little. The phone call could have involved anything and does not overwhelmingly prove Appellant’s involvement in a robbery. The unconstitutionally seized envelopes, however, were damaging evidence since they established Appellant’s possession of the robbery’s proceeds. That evidence was critical proof, particularly in a case that otherwise hinged on the incredible testimony of a dishonest witness who was obviously involved in an illicit enterprise. See AB 11-17, AB 48-49. The error was not harmless as it worked significant prejudice in this weak case. 13 Respondent contends that the record does not indicate whether the envelopes were “sticking out of the top” of Nonni’s pocket or were “closed or open.” RB 27. On the contrary, the record establishes that the envelopes were inside Appellant’s pocket and that the money was inside the envelopes. See A 154-56. 14 Respondent cites extra-record material regarding the alleged guilty pleas entered by “Anthony Devita” and “Samantha Sanchez.” RB 7-8 ns. 2-3. This extra-record information was never presented to the jury and Appellant never had the chance to challenge any statements made by those persons. This extra-record information is irrelevant to this appeal and improperly referenced in Respondent’s brief. -27- CONCLUSION This Court should reverse and order a new trial. Respectfully Submitted, ROBERT S. DEAN Center for Appellate Litigation Attorney for Defendant-Appellant BY: ____________________ Matthew Bova Of Counsel July 11, 2017 WORD-COUNT CERTIFICATION This reply brief contains 6,675 words.