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People v. O'Rama

Court of Appeals of the State of New York
Jun 6, 1991
78 N.Y.2d 270 (N.Y. 1991)

Summary

holding the defendant was prejudiced when the court failed to read a portion of the jury note stating jury was split "6/6," told counsel the jury was experiencing "continued disagreements," and subsequently issued a supplemental instruction urging a verdict

Summary of this case from State v. Tremblay

Opinion

Argued April 23, 1991

Decided June 6, 1991

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Raymond Harrington, J.

Elaine Jackson Stack for appellant. Denis Dillon, District Attorney (Lawrence J. Schwarz and Bruce E. Whitney of counsel), for respondent.



Following a jury trial, defendant was convicted of driving while under the influence of alcohol as a felony (see, Vehicle and Traffic Law § 1192; § 1193 [1] [c]). His appeal requires us to decide the extent to which the specific contents of jurors' notes must be disclosed to the defendant and defense counsel before a response is given. In the circumstances of this case, where the juror's note was substantive and referred to difficulties the jury was having in reaching a verdict, we hold that the trial court committed reversible error when it failed to disclose the note's contents before responding with an Allen charge.

The incident leading to defendant's arrest began when the automobile defendant was driving hit another automobile that was traveling in the same direction. Defendant was arrested after the police officer who responded to the accident scene concluded from defendant's behavior that he was intoxicated. At the police station, defendant refused to take a breathalyzer test, but consented to participate in a number of performance tests designed to measure the degree to which his motor skills, balance and reflexes had been impaired.

Defendant indicated that he would not submit to a breathalyzer test without first speaking with his attorney. However, when he was offered an opportunity to telephone his attorney, defendant declined, stating that it was too late to get in touch with the attorney at that point.

The People's trial evidence consisted principally of the results of these performance tests, as well as the arresting officer's testimony about defendant's behavior at the accident scene and his postarrest refusal to take a breathalyzer test. The defense concentrated its efforts on impeaching the police officer's expertise and challenging the reliability of his conclusions as to defendant's sobriety. The defense also called a longtime acquaintance of defendant's family to the witness stand and elicited the fact that defendant had suffered severe back and leg injuries in a prior automobile accident.

After approximately five hours of deliberations and a recharge on the meaning of "intoxication," the jury sent out a note informing the Judge that it was "stalemated" and wished to know "how [to] proceed." The court responded by sending the jury to dinner and to a hotel for the night. On the following day, the jury deliberated at length and made several requests for evidence and instruction, but was still unable to reach a verdict. On the third day of deliberations, the court received another deadlock note in which the foreman stated "I don't see us ever reaching a unanimous verdict." At that point, the court gave its first Allen charge (see, Allen v United States, 164 U.S. 492).

Before the jury returned to resume deliberations, one of the jurors asked permission to speak to the Judge but was told to put his query in the form of a note. After receiving this juror's note, the Judge brought the jury and counsel back into the courtroom and had the note marked as a court exhibit. The Judge declined to read the note aloud, however, because, in his view, reading it "would [not] serve any particular purpose * * * at this point." Instead, the Judge summarized the "substance" of the note's contents, stating that it "indicates that there are continued disagreements among the jurors." After questioning five of the jurors and eliciting from four of them that a unanimous verdict was still possible, the Judge "implor[ed]" the jurors to try again and administered another Allen charge. When the jury was ushered out of the courtroom, the Judge elaborated upon his reasons for withholding the precise contents of the individual juror's note, stating that he did not read it because "it indicate[d w]hat the present posture is as far as votes". Defense counsel then unsuccessfully sought disclosure of the note's contents.

The juror's note was as follows:
"Your honor,

"I feel I am having problems and need more direction than you and or the court is giving me.
"I have listened as a reasonable person and have a great deal of respect for the opinions of the people in the room.
"I do however believe that there are people who are so set including myself who are looking at the same evidence in such opposite ways that it doesn't seem that I am going to change my mind (either side).
" Repeating (the evidence so many times just pushes people further apart.) Other aspects are coming into play * * * people's attitudes and actions. I don't feel I can honestly come up with a different decision than I have. I am not the only one on the jury who feels this way but may be the only one that has conviction enough to say so.
"We are split down the middle HELP 6/6." (Emphasis in original.)

The jury deliberated for the remainder of the afternoon, returning to the courtroom for one more testimonial readback. At 5:08 P.M., the jury brought in its guilty verdict. Defendant was subsequently sentenced to a one-to-three-year term of imprisonment. He now appeals, by permission of a Judge of this Court, from an order of the Appellate Division, Second Department, which affirmed the judgment of conviction. The primary issue he raises on this appeal is whether the trial court's actions in relation to the individual juror's note constitute reversible error.

We begin our analysis of this issue with CPL 310.30, which provides that a deliberating jury may request additional information or instruction "with respect to any * * * matter pertinent to [its] consideration of the case." The statute further provides that "[u]pon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant * * * must give such requested information or instruction as the court deems proper" (emphasis supplied). CPL 310.30 thus imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond. It has been held that the latter duty requires the court to give a response that is "meaningful" (see, e.g., People v Malloy, 55 N.Y.2d 296, 301; People v Gonzalez, 293 N.Y. 259, 262). We have not, however, previously addressed the separate, albeit related, question raised in this appeal — i.e., the scope of the court's CPL 310.30 duty to provide counsel with "notice."

The People have asked us to hold that the notice provision of the statute requires only that the court inform counsel of the existence of a juror inquiry and, perhaps, convey the inquiry's basic substance. Thus, the People argue, the court's obligation was satisfied here because counsel knew that a note had been sent out of the jury room and was advised that, in substance, it concerned the jurors' "continu[ing] disagreements". We cannot agree, however, that the statutory mandate should be read so narrowly.

The requirement that "notice" be given to counsel is not a mere formality or a procedural device designed only to ensure counsel's presence in the courtroom when the court gives its response to the jurors' request for information or instruction (see generally, People v Ramsey, 40 A.D.2d 837, 838; People v Merrill, 286 App. Div. 307). While that is undoubtedly one of the statute's purposes, an equally important purpose is to ensure that counsel has the opportunity to be heard before the response is given (see, Rogers v United States, 422 U.S. 35, 39; United States v Ronder, 639 F.2d 931, 934; United States v Robinson, 560 F.2d 507, 516 [en banc], cert denied 435 U.S. 905). Such an opportunity is essential to counsel's ability to represent the client's best interests and, further, to ensure the protection of the client's constitutional and statutory rights at these critical postsubmission proceedings (see, People v Ciaccio, 47 N.Y.2d 431, 436 [supplemental instructions, which are given in direct response to the jurors' own questions, "may well be determinative of the outcome"]). Thus, just as CPL 310.30's requirement that juror inquiries be answered mandates a "meaningful" response (see, People v Malloy, supra, at 301), so too does that statute's "notice" requirement mandate notice that is meaningful.

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. 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. Concomitantly, the Trial Judge's summary of the "substance" of an inquiry cannot serve as a fair substitute for defense counsel's own perusal of the communication, since it is defense counsel who is best equipped and most motivated to evaluate the inquiry and the proper responses in light of the defendant's interests (cf., People v Jones, 70 N.Y.2d 547, 550; People v Perez, 65 N.Y.2d 154, 158).

We further hold that, in most cases, this requirement of meaningful notice is best served by following the procedure that was outlined in United States v Ronder ( 639 F.2d 931, 934, supra, accord, People v Miller, 163 A.D.2d 491). Under this procedure, jurors' inquiries must generally be submitted in writing, since, as the trial court in this case recognized, written communications are the surest method for affording the court and counsel an adequate opportunity to confer. Further, whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. As the court noted in Ronder (supra, at 934), the trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court's response and the context in which it is being made (id.).

To be sure, there are special circumstances in which the foregoing procedures will need to be modified or tailored to ensure the integrity of the deliberative process. For example, there may be situations in which the contents of an individual juror's note cannot be shared with the rest of the jury because its substance is too personal or would exacerbate existing tensions. In such cases, alternatives such as redaction, paraphrasing and in camera colloquy may be considered (see, United States v Ronder, supra, at 934). In the final analysis, the choice of methods to be used to address particular idiosyncratic situations is a matter to be entrusted to the sound discretion of the trial courts, since it is impossible to predict or prescribe for the myriad of problems that may arise during the course of a jury's deliberations. The point of the Ronder decision and our own decision here is not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel's input is most meaningful, i.e., before the court gives its formal response. Accordingly, where there exist unique articulable circumstances that make the foregoing steps impractical, modified procedures that are equally conducive to participation by defense counsel are permissible.

Viewed in light of these principles, the trial court's actions in this case were clearly inadequate. While the court initially acted properly by directing the individual juror who expressed difficulty to put his concerns in writing, the court's subsequent decision to withhold the contents of the juror's note fell outside the acceptable bounds of its discretion. A court can neither serve the goal of maximizing counsel's participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror's communication and is thereby deprived of an advance opportunity to suggest a response. Indeed, given the importance of counsel's participation in this context (see, Rogers v United States, supra), it is difficult to imagine a situation in which a court would be justified in declining to show or read a juror's note to counsel. Certainly, a concern such as that expressed by the trial court in this case, i.e., that the note's contents might convey the status of the jury's deliberations, cannot furnish an acceptable justification for the complete exclusion of the defendant's attorney from the process of formulating a supplementary charge.

Having concluded that the trial court's decision to withhold the contents of the juror's note in this case constituted error, we turn now to the question of whether that error presents a ground for reversal. As a threshold matter, we note that the court's error in failing to disclose the contents of the note had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from "`the organization of the court or the mode of proceedings prescribed by law'" (People v Coons, 75 N.Y.2d 796, 797, quoting People v Patterson, 39 N.Y.2d 288, 295, affd 432 U.S. 197; see, People v Mehmedi, 69 N.Y.2d 759, 760; People v Ahmed, 66 N.Y.2d 307, 310). Accordingly, the error presents a "question of law" within the meaning of CPL 470.05 (2), notwithstanding that defense counsel did not object to the court's procedure until after the supplementary charge had been given.

Similarly, we reject the People's argument that reversal is not required here because of the absence of specific prejudice (see generally, People v Agosto, 73 N.Y.2d 963, 966; People v Lourido, 70 N.Y.2d 428, 435; People v Miller, 6 N.Y.2d 152, 156). Manifestly, defendant was prejudiced by the court's actions, since the decision to withhold the contents of the juror's note deprived him of the opportunity to have input, through counsel or otherwise, into the court's response to an important, substantive juror inquiry. This case is thus distinguishable from People v Agosto ( 73 N.Y.2d 963, supra), in which our Court found no prejudice, and therefore no cause for reversal, where a Trial Judge failed to respond to a juror inquiry, or even to notify defense counsel, before accepting the jury's verdict. This Court held in Agosto that, in view of the Judge's prior response pattern, his 20-minute delay in responding to the juror's note, which requested early dismissal for Sabbath observance, could not have been construed by the jurors as a tacit denial of that request and therefore could not have operated, even subtly, to pressure the jury into a premature verdict. Since there was no supplementary instruction given in Agosto and the absence of a response was not itself capable of creating a "significant probability" of prejudice, the exclusion of counsel from the Judge's decision-making process was also not prejudicial. The same certainly cannot be said where, as here, the trial court did respond to the juror's inquiry with a substantive Allen instruction that was, unquestionably, intended to have an effect on the deliberative process. In this context, the court's failure to notify counsel of the note's contents, which resulted in a denial of the right to participate in the charging decision, was inherently prejudicial (cf., People v Jones, supra; People v Perez, supra).

Inasmuch as we rest our decision on the fact that defendant's attorney was denied a meaningful opportunity to participate in this critical stage of the proceeding thereby depriving defendant of his fundamental right to be represented effectively by counsel, we need not consider defendant's alternative argument that the court's actions violated his own CPL 310.30 right to be present during supplementary instruction proceedings (cf., People v Rodriguez, 76 N.Y.2d 918).

Inasmuch as there must be a new trial because of the court's error in handling the juror's inquiry, we need not comment on most of defendant's other claims of trial error. With respect to defendant's complaint about the trial court's denial of his pretrial motion to preclude evidence that he refused to take a breathalyzer test, we conclude that the ruling was not, as a matter of law, erroneous. The record supports the finding that defendant was afforded an adequate opportunity to consult with counsel (see, People v Gursey, 22 N.Y.2d 224, 229) and was accurately apprised of the consequences of his refusal to submit to the test (see, Vehicle and Traffic Law § 1194 [f]). When viewed in the context of defendant's statement to police that his attorney could not be contacted for several hours, the police officer's statement to him that his insistence on waiting for his attorney constituted a refusal was not misleading or inaccurate (see, People v Gursey, supra). Moreover, although the officer's additional statement that defendant's license would be revoked upon his refusal and would be restored only by order of a court was inaccurate (see, Vehicle and Traffic Law § 1194 [d] [1]; 15 N.Y.CRR 136.1 et seq. [license to be restored only at discretion of Commissioner of Motor Vehicles]), the erroneous information was not material for these purposes and, consequently, could not have had an influence on defendant's decision to refuse. Thus, there was no impropriety in the use of defendant's refusal to take a breathalyzer test as part of the People's evidence-in-chief (cf., People v Boone, 71 A.D.2d 859).

Accordingly, for the reasons stated above, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur.

Order reversed, etc.


Summaries of

People v. O'Rama

Court of Appeals of the State of New York
Jun 6, 1991
78 N.Y.2d 270 (N.Y. 1991)

holding the defendant was prejudiced when the court failed to read a portion of the jury note stating jury was split "6/6," told counsel the jury was experiencing "continued disagreements," and subsequently issued a supplemental instruction urging a verdict

Summary of this case from State v. Tremblay

In People v. O'Rama, 78 N.Y.2d 270 (1991), the New York Court of Appeals required that counsel be given "notice of the actual specific content of" any notes from the jury.

Summary of this case from Munoz v. Burge

In O 'Rama, a juror sent out a note to the trial judge which detailed a significant difference of opinion among the jurors.

Summary of this case from Jones v. Smith

In People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (N.Y. 1991), the trial judge had refused defense counsel's request to see the jury's deadlock note, the New York Court of Appeals delineated guidelines requiring notice and opportunity to comment on jury inquiries to the court.

Summary of this case from Moye v. Corcoran

In People v. O'Rama, 78 N.Y.2d 270, 276 (1991), the New York Court of Appeals endorsed the use of the Ronder procedures in the state courts.

Summary of this case from Abreu v. Walker

In People v O'Rama (78 NY2d 270 [1991]), this Court stated, without reservation, that CPL 310.30 imposes a duty on the trial court to meaningfully respond to a substantive juror inquiry. This requirement is no mere technical nicety, but a core responsibility of the trial court which may not be ignored or abdicated (Kisoon, 8 NY3d 129, 134 [2007]; People v Torres, 72 NY2d 1007, 1008-1009 [1988]; People v Ahmed, 66 NY2d 307, 310 [1985]).

Summary of this case from People v. Mack

In O'Rama, we held that the statute requires the court's notice to counsel to be “meaningful,” and we clarified that this “means notice of the actual specific content of the jurors' request” (O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189).

Summary of this case from People v. Nealon

In O'Rama, we held that the statute requires the court's notice to counsel to be “meaningful,” and we clarified that this “means notice of the actual specific content of the jurors' request” (O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189). This is because “counsel cannot participate effectively or adequately protect the defendant's rights if this specific information is not given” (id.).

Summary of this case from People v. Nealon

In People v. O'Rama, 78 N.Y.2d 270, 276–277, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), this Court held that CPL 310.30 imposes on a court the duty to notify counsel of a substantive juror inquiry, and the duty to meaningfully respond to the jury.

Summary of this case from People v. Taylor

In People v. O'Rama, 78 N.Y.2d 270, 276–277, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), this Court held that CPL 310.30 imposes on a court the duty to notify counsel of a substantive juror inquiry, and the duty to meaningfully respond to the jury.

Summary of this case from People v. Taylor

In O'Rama (78 NY2d 270 [1991]), we carefully explained that a court's "core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors' request — in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response — and to provide a meaningful response to the jury" (People v Kisoon, 8 NY3d 129, 134 [2007], citing People v O'Rama, 78 NY2d at 277).

Summary of this case from People v. Silva

In O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), we carefully explained that a court's “core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors' request—in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury” (People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007], citing People v. O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189).

Summary of this case from People v. Silva

In O'Rama, the trial judge did not show a juror's note to the defendant and his attorney, or read it aloud in open court before responding.

Summary of this case from People v. Alcide

In O'Rama, the trial judge did not show a juror's note to the defendant and his attorney, or read it aloud in open court before responding.

Summary of this case from People v. Alcide

In People v O'Rama (78 NY2d 270), we held that CPL 310.30 imposes two distinct duties on a court that receives a note from the jury: first, a duty to notify counsel about the note, and second, a duty to provide a "meaningful response" (id. at 276).

Summary of this case from People v. James Kadarko

In O'Rama, we held that the failure of a trial court to inform defense counsel of the exact contents of a juror's note deprived defendant of the "meaningful notice" required by CPL 310.30. Meaningful notice, we said, requires not only that counsel be present in the courtroom when the court delivers its response to jurors' requests for information or instruction, but also "that counsel has the opportunity to be heard before the response is given" (People v O'Rama, supra, at 277; cf., People v Starling, 85 N.Y.2d 509 [decided today]).

Summary of this case from People v. Cook

In People v O'Rama (78 N.Y.2d 270), this Court held that when the jurors request information or supplementary instruction pursuant to CPL 310.30, defense counsel must be given meaningful notice, a term that implies such notification as will afford counsel the opportunity to "participate effectively" and to "adequately protect the defendant's rights" (see, id., at 277).

Summary of this case from People v. Lykes

In O'Rama, the Court determined, and it is now well settled, that a trial court's duty, imposed by CPL 310.30, to provide notice of a substantive jury inquiry can only be properly discharged by providing “meaningful notice,” which means “notice of the actual specific content of the jurors' request” (O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189).

Summary of this case from People v. Robinson

In O'Rama, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30.

Summary of this case from People v. Gough

In O'Rama, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30.

Summary of this case from People v. Gough

In People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30.

Summary of this case from People v. Thomas

In O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189, the Court of Appeals provided more detailed instructions for the handling of jury notes, and the Court subsequently indicated that a trial court's failure to fulfill its “core responsibilities under CPL 310.30,” such as giving notice to defense counsel and the People of the contents of a jury note, requires reversal even in the absence of preservation (People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90).

Summary of this case from People v. Williams

In O'Rama, the Court concluded that the trial court's failure to disclose the contents of a jury note to defendant was a mode of proceedings error that required reversal even in the absence of an objection (id. at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189), reasoning that the court's error “deprived [defendant] of the opportunity to have input, through counsel or otherwise, into the court's response to an important, substantive juror inquiry” (id. at 279–280, 574 N.Y.S.2d 159, 579 N.E.2d 189).

Summary of this case from People v. Kahley

In People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, which was decided two years before defendant's trial, the Court of Appeals provided more detailed instructions for the handling of jury notes.

Summary of this case from People v. Kahley

In People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30.

Summary of this case from People v. Stocks
Case details for

People v. O'Rama

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN O'RAMA, Appellant

Court:Court of Appeals of the State of New York

Date published: Jun 6, 1991

Citations

78 N.Y.2d 270 (N.Y. 1991)
574 N.Y.S.2d 159
579 N.E.2d 189

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