The People, Respondent,v.Mark Nonni, Appellant.BriefN.Y.Mar 20, 2018CENTER FOR APPELLATE LITIGATION 120 \VALL STREET- 28'IH FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535 --ll!JJP--- ATTORNEY-IN-CHARGE ROBERTS. DEAN ASSISTANT ATTORNEY-IN-CHARGE MARKW. ZENO SENIOR SUPERVISING ATTORNEYS ABIGAIL EVERETT BARBARA ZowT CLAUDIA S. TRUPP MANAGING ATTORNEY DAVIDJ KLEM SUPERVISING ATTORNEY MARISA K. CABRERA ASSISTANT MANAGING ATTORNEY KATHARINE SKOLNICK The Honorable Judges of the Court of Appeals Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Your Honors: Matthew Bova Appellate Counsel m bova@cfal. org ext. 543 September 27, 2016 Peswle v. Mark Nonni APL-2016-00076 Under 22 N.Y.C.R.R. § 500.11(e), Appellant requests permission to ftle a reply. Under that same provision, Appellant's proposed reply is included below. RESPONDENT'S O'RAMA ARGUMENTS CLASH WITH THIS COURT'S WELL-ESTABLISHED PRECEDENTS. Faced with a record that fails to establish "meaningful notice" of the contents of two substantive jury notes, Respondent recycles three previously-rejected O'Rama theories: • This Court's "meaningful notice" standard does not require "verbatim notice" of the note's contents. Instead, mere notice of the "note's existence" suffices. • Under pre-O'Rama precedent ~eople v. Agosto, 73 N.Y.2d 963 (1989)), an appellate court can assume that the jury "withdrew its request'' when it delivers a verdict while a note is pending. Page 2 of 9 Even if the record fails to establish “meaningful notice,” an appellate court can—six years after the trial—order a reconstruction hearing to determine whether the court provided meaningful notice off the record. Respondent’s Letter 17-24 (“RL”). As this Court has already rejected these precise theories, it should reject them again here. A. “Notice of the Note’s Existence” Does Not Constitute “Meaningful Notice.” Respondent contends that the court fulfills its “core” “meaningful notice” obligation—and that therefore preservation is required—if the court provides notice of the note’s “existence.” RL 17-19. But this Court’s cases draw the mode-of- proceedings line at “verbatim” notice of the “actual specific content” of the note— not notice of the note’s “existence.” E.g., People v. Mack, 27 N.Y.3d 534, 536-44 (2016); People v. Nealon, 26 N.Y.3d 152, 157-63 (2015); People v. Walston, 23 N.Y.3d 986, 990 (2014); People v. Tabb, 13 N.Y.3d 852, 853 (2009); People v. Kisoon, 8 N.Y.3d 130, 135 (2007). Indeed, in Walston, Kisoon, and Tabb, “there [was] record evidence that defense counsel was made aware of the existence of the note.” Walston, 23 N.Y.3d at 990; see also Kisoon, 8 N.Y.3d at 132, 135; Tabb, 13 N.Y.3d at 953 and People v. Tabb, Respondent’s § 500.11 Submissions at pgs. 2-3. But in all three of those cases, this Court found a mode-of-proceedings error because “there [was] no indication that the entire contents of the note were shared with counsel.” Walston, 23 N.Y.3d at 989-90; Kisoon, 8 N.Y.3d at 132, 135; Tabb, 13 N.Y.3d at 853. More recently, Mack and Nealon re-confirmed that this Court has drawn a bright line at “verbatim” notice. 27 N.Y.3d at 538, 542-43; Nealon, 26 N.Y.3d at 157- 62. Both cases explained that without “verbatim” notice of the “specific content of a substantive jury note,” counsel “‘cannot participate effectively or adequately protect the defendant’s rights.’” Mack, 27 N.Y.3d at 541 (quoting Nealon, 26 N.Y.3d at 157); Nealon, 26 N.Y.3d at 156 (quoting People v. O’Rama, 78 N.Y.2d 270, 277 (1991)); accord Nealon, 26 N.Y.3d at 162 (“Our jurisprudence seeks to ensure that all parties are on notice as to what the jury is asking. Without meaningful notice of the contents Page 3 of 9 of a jury note, counsel cannot protect the interests of each party before the court”). Thus, in Mack and Nealon, this Court only affirmed the defendants’ convictions because, unlike in Walston, Kisoon, and Tabb, counsel had “verbatim” notice. Mack, 27 N.Y.3d at 543; Nealon, 26 N.Y.3d at 160-62. “Verbatim” notice was, this Court explained, the “pivotal” and “key” “determinant.” Mack, 27 N.Y.3d at 541-42. Mack further held that the court must provide verbatim notice in this precise context (the jury reaches a verdict while a note is outstanding) because verbatim notice ensures that counsel can “participat[e]” in the deliberative process by: (1) asking “the court [to] respond to the outstanding notes before taking the verdict”; or (2) requesting “that the court ask the jurors whether they still desired a response to th[e] notes.” Mack, 27 N.Y.3d at 542-43. Here, by failing to provide defense counsel with verbatim notice, the trial court below prevented counsel from meaningfully participating in the note-verdict process. Id. Respondent answers this tidal wave of controlling precedent by pressing that counsel can adequately protect his client’s rights absent verbatim notice. All counsel needs is notice of the note’s “existence,” the theory goes. RL 17-19. This is nothing more than a request to overrule well-established jurisprudence defining “meaningful notice” as “verbatim” notice. E.g., Mack, 27 N.Y.3d at 536-44; Nealon, 26 N.Y.3d at 157-63; Walston, 23 N.Y.3d at 989-90; Tabb, 13 N.Y.3d at 853; Kisoon, 8 N.Y.3d at 135. Although Respondent does not acknowledge as much, its argument comes from this Court’s dissenting opinions, not its majority rulings. See Walston, 23 N.Y.3d at 992 (Smith, J., dissenting) (arguing that notice of the note’s existence provides meaningful notice because counsel could have “said ‘May I see the note, Your Honor?’”). In passing, Respondent proposes a distinction between “paraphrasing” a note (which, Respondent acknowledges, is a mode-of-proceedings violation) and saying nothing about the note’s contents at all (which, Respondent contends, is not a mode- of-proceedings violation). RL 18. Respondent does not even attempt to justify this odd and unworkable distinction—a distinction that squarely violates this Court’s verbatim notice mandate. RL 19. E.g., Mack, 27 N.Y.3d at 536-44. Page 4 of 9 Respondent’s proposed distinction is also illogical. Counsel is in a far better position to defend his client’s interests when he knows the “paraphrased” substance of a note than when he knows nothing about the note’s contents at all. See Mack, 27 N.Y.3d at 541-44 (explaining that the failure to provide verbatim notice is a mode- of-proceedings violation because it deprives counsel of the ability to defend his client’s interests). Instead of creating an arbitrary and illogical “paraphrasing” distinction, this Court should apply the well-settled “verbatim notice” standard that has anchored this Court’s O’Rama jurisprudence. B. This Court Has Already Rejected Respondent’s “Implicit Rescission” Theory. Citing Appellate Division case law and decades-old, pre-O’Rama precedent, Respondent cobbles together a speculative harmless error theory. In so arguing, Respondent guesses that the jury—whose note-request remained unanswered for three hours—willingly “rescinded” its notes by reaching a verdict. See RL 19-21 (citing, among other cases, Agosto, 73 N.Y.2d at 966; People v. Albanese, 45 A.D.3d 691, 692 (2d Dept. 2007); People v. Cornado, 60 A.D.3d 450, 451 (1st Dept. 2009)). Thus, the argument goes, this mode-of-proceedings error did not impact the jury’s deliberations. RL 19-21. This Court has already rejected Respondent’s “implied rescission” theory. In People v. Silva, 24 N.Y.3d 294 (2014), the prosecution made the same precise argument based on the same precise cases.1 A headnote in the prosecution’s brief pressed: “ONCE THE JURY SENT OUT A NOTE ANNOUNCING ITS VERDICT, ANY ARGUABLE MISSTEP IN THE COURT’S HANDLING OF THE FIRST NOTE WAS RENDERED MOOT.” Silva, Respondent’s Brief, at 39. The prosecution’s brief then contended: “In People v. Agosto, 73 N.Y.2d 963 (1989), and People v. Lourido, 70 N.Y.2d 428 (1987), this Court addressed the issue of whether a defendant is entitled to relief when the trial judge accepts a jury’s verdict without responding to the note sent out prior to the announcement of that verdict . . . [Under Agosto,] it was only ‘where the failure to respond to a jury note ‘seriously prejudice[s]’ defendant that a 1 See People v Silva, Respondent’s Court of Appeals Brief 39-46 (citing Agosto, 73 N.Y.2d 963; Albanese, 45 A.D.3d 69; Cornado, 60 A.D.3d 450). Page 5 of 9 reversal is required.’” Id. at 40-42 (quoting Agosto, 73 N.Y.2d at 966). And in relying upon the Agosto-“serious prejudice” standard, the prosecution in Silva advanced the same theory Respondent now advances: the “delay [in responding to the note] could not have left the jury with the impression that the court did not intend to answer the first note at all, or pressured the jury into arriving at a verdict without further explanation.” Id. at 46; see RL 20-21 (arguing that the court’s failure to respond did not indicate to the jurors “‘that the court was [declining to] giv[e] favorable consideration to their request’”) (quoting Agosto, 73 N.Y.2d at 966). Silva unequivocally rejected the prosecution’s Agosto-“prejudice” theory: “Nor are we persuaded by the dissent[ ] [and prosecution’s] reliance on pre- O’Rama cases that imposed a ‘serious prejudice’ requirement.” 24 N.Y.3d at 300 n. 1 (citing Agosto, 73 N.Y.2d at 966 and Lourido, 70 N.Y.2d at 435). Again, it was the dissenting opinion, not the majority holding, that embraced the Agosto-“prejudice” theory. Silva, 24 N.Y.3d at 301-02 (Smith, J., dissenting). Silva’s rule is simple: appellate courts cannot speculate that the failure to provide both meaningful notice and a response somehow had no impact on the jury’s deliberations. Further, Mack recently reiterated that “harmless error” does not apply to “mode-of-proceedings” error, such as this one. See 27 N.Y.3d at 540. Respondent’s “rescission” theory, which is a harmless error theory in disguise, cannot survive that pronouncement. Finally, in speculating that the jury implicitly “rescinded” its note, Respondent ignores the absence of meaningful notice. If the court had provided meaningful notice, counsel could have (1) asked the court to “respond to the outstanding notes before taking the verdict” or (2) requested “that the court ask the jurors whether they still desired a response to th[e] notes.” Mack, 27 N.Y.3d at 543. Thus, had the court complied with its meaningful notice obligation, the “implicit rescission” upon which Respondent now relies may never have occurred. Id. Page 6 of 9 Although Respondent devotes ten paragraphs to its Agosto-prejudice theory, Respondent does not even attempt to explain how its theory survives Silva or Mack.2 It does not. 3 C. When the Record Fails to Affirmatively Establish O’Rama Compliance, A Reconstruction Hearing Is Not Available. Respondent finally requests a “reconstruction hearing” so it can develop the record that the trial court and prosecutor failed to develop during this 2010 trial. RL 22-24. Once again, this Court has rejected Respondent’s theory. Two years ago, in Walston, the prosecution expressly sought “a reconstruction hearing [ ] to allow th[e] court to specify on the record whether the exact content of the jury note was disclosed to defense counsel.”4 After finding that the record failed to establish verbatim notice, Walston did not order a reconstruction hearing. Instead, Walston reversed the judgment and ordered a new trial. In doing so, Walston confirmed that the original record must affirmatively establish O’Rama compliance: “[w]here 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.” 23 N.Y.3d at 990 (citing 2 Perhaps aiming to circumvent Silva’s express rejection of Agosto’s “seriously prejudiced” standard, Respondent carefully avoids using the phrase “seriously prejudiced.” RL 19-21. Nevertheless, Respondent’s “rescission theory” unquestionably invokes that precise standard. RL 19-21. 3 In any event, Respondent cannot establish harmless error under the outdated “serious prejudice” standard. The jury’s notes were outstanding for three hours. Thus, Respondent is hard-pressed to argue that it can establish, beyond a reasonable doubt, that the court’s mode of proceedings error had no impact on the jury’s deliberations. See People v. Crimmins, 36 N.Y.2d 230, 237-42 (1975); Chapman v. California, 386 U.S. 18, 24-26 (1967) (the prosecution bears the burden of establishing harmless error beyond a reasonable doubt). In Lourido—which Respondent does not cite—this Court found “serious prejudice” where the court failed to respond to a note for three hours. 70 N.Y.2d at 431, 435; cf. Agosto, 73 N.Y.2d at 966 (no “serious prejudice” where the note was outstanding for a mere 20 minutes). Thus, even under the Agosto/Lourido “prejudice” standard, Respondent cannot prevail. 4 People v. Walston, Respondent’s Court of Appeals Br. 31. Page 7 of 9 Tabb, 13 N.Y.3d at 852 (“Nothing in the record indicates that the court informed defense counsel and the prosecutor about the contents of the note. In 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; People v. Powell, 101 A.D.3d 756, 758 (2d Dept. 2012) (rejecting reconstruction hearings in this context because “Court of Appeals case law interpreting C.P.L. § 310.30 contemplates that the procedure for complying with that statute will occur on the record”). 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 CPL 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 852). 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 with the O’Rama guidelines.” Id. at 300-01. Although Tabb, Walston, and Silva shut the “reconstruction” door, Respondent refuses to accept those holdings. Instead of the “eas[y]” solution those cases provide—“make a record”—Respondent seeks an artificial reconstruction hearing that will feature guesswork about unmemorable events occurring thousands of days earlier. That argument lost in Silva and Walston; it should lose here too. To justify its reconstruction hearing request, Respondent does not even discuss Silva, Walston, or Tabb. Instead, Respondent cites pre-Walston/Silva precedent (e.g., People v. Kahley, 105 A.D.3d 1322, 1325-26 (4th Dept. 2013); People v. Cruz, 14 N.Y.3d 814 (2010)), and a curt, conclusory decision from the First Department (People v. Mitchell, 129 A.D.3d 404, 404 (1st Dept. 2015)). RL 22-23. These decisions are inapposite and irrelevant. Cruz did not discuss the propriety of Page 8 of 9 reconstruction hearings, so it has no bearing here. 14 N.Y.3d at 815-16. Further, Kahley and Cruz pre-date Walston and Silva, thus they have no precedential value in this context. Finally, Mitchell (the only post-Walston decision Respondent cites), contained no analysis and did not cite a single case justifying a “reconstruction” remedy. 129 A.D.3d at 404. Instead of this unhelpful authority, this Court should rely on its own cases, which impose “an affirmative obligation on a trial court to create a record of compliance.” Silva, 24 N.Y.3d at 300-01; Walston, 23 N.Y.3d at 990; Tabb, 13 N.Y.3d at 852; see also People v. Giraldo, 116 A.D.3d 711, 712 (2d Dept. 2014) (“[M]eaningful notice of the contents of a jury note must take place on the record. Accordingly, contrary to the People’s contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful”) (citations omitted). “Disavowing” this Court’s precedents would create serious problems. At best, these new reconstruction hearings will be plagued by faulty memories of un- memorable 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 “possibl[y]” omitted something, RL 22-24, 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 governing the availability of this new remedy; (2) the procedures that apply during these reconstruction hearings; and (3) the types of claims that are subject to these reconstruction procedures. Subjective, unworkable standards will line this new and complicated treatise. And what an unnecessary effort that protracted litigation would be. After all, this Court’s cases already establish a better solution: make a record. Silva, 24 N.Y.3d at 300-01; Walston, 23 N.Y.3d at 990; Tabb, 13 N.Y.3d at 852. Page 9 of 9 Respondent’s reconstruction theory also has no logical stopping point. Our appellate courts have long held that if the transcript does not indicate that “X” occurred, it did not occur. See, e.g., People v. Catu, 4 N.Y.3d 242 (2005).5 But Respondent’s theory would radically alter that approach, potentially triggering “reconstruction hearings” every time a litigant can hypothesize that something “is possibly” missing from 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 not accept the risk of this procedural invention. Instead, it should simply apply Walston, Silva, and Tabb. CONCLUSION For the reasons stated above and in Appellant’s opening letter, this Court should reverse and order a new trial.6 Sincerely, Matthew Bova, Counsel to Appellant Mark Nonni September 27, 2016 5 During oral argument in Walston, Judge Smith put it well when he explained: “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 Transcript of Oral Argument, 16 (May 7, 2014). In rejecting a reconstruction hearing, Walston simply applied this basic rule of our “Anglo Saxon legal system.” 23 N.Y.3d at 990. 6 As for our unconstitutional search-and-seizure arguments, we rest on our opening papers, except to point out that, contrary to Respondent’s argument, the pre-trial transcript and the prosecution’s C.P.L. § 30.30 papers unequivocally establish that counsel adopted Mr. Nonni’s pro se suppression submissions. See RL 14; Jan. 14, 2010 Transcript 142-45; Affirmation in Opposition to Defendant’s C.P.L. § 30.30 Motion, ¶ 30 (“On January 14, 2010 . . . Defendant’s attorney adopted the instant [C.P.L. § 30.30] motion by defendant. In addition, submissions by defendant on the hearing were adopted by defendant’s counsel”) (emphasis added). And even if counsel did not adopt Mr. Nonni’s pro se arguments, it’s hard to imagine something more ineffective than failing to adopt winning pro se arguments made by one’s own client. See Strickland v. Washington, 466 U.S. 668 (1984); U.S. Const., Amend. 6, 14; N.Y. Const., Art. I § 6.