John R. Lewis, Sleepy Hollow, for appellant in the first above-entitled action. Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Hilary Hassler of counsel), for respondent in the first above-entitled action. Lynn W.L. Fahey, Appellate Advocates, New York City (Steven R. Bernhard of counsel), for appellant in the second above-entitled action. Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Rhea A. Grob of counsel), for respondent in the second above-entitled action.
John R. Lewis, Sleepy Hollow, for appellant in the first above-entitled action.
Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Hilary Hassler of counsel), for respondent in the first above-entitled action.
Lynn W.L. Fahey, Appellate Advocates, New York City (Steven R. Bernhard of counsel), for appellant in the second above-entitled action.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Rhea A. Grob of counsel), for respondent in the second above-entitled action.
OPINION OF THE COURT
In these cases, we must decide whether a mode of proceedings error occurs under People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) and its progeny when a court accepts a verdict without affirmatively acknowledging or responding to a jury's substantive request for information during deliberations.
People v. Julian Silva
Defendant Julian Silva was charged with weapon possession and various drug offenses, including criminal sale of a controlled substance in the first degree. During the morning of the second day of deliberations, the jury sent a note asking for “the wire transcript mentioning the gun” and the “judges [sic] instructions on count # 3—weapon possession.” The note was marked as court exhibit 2, but nothing in the record affirmatively demonstrates that the court informed the parties about the jury's inquiry. About one hour later, the jury sent another note, marked as court exhibit 3, stating that a verdict had been reached. The jurors were brought to the courtroom, the verdict was announced and defendant was found guilty of first-degree drug sale, attempted third-degree weapon possession and other offenses.
On appeal to the Appellate Division, defendant claimed that the court's handling of the note marked as court exhibit 2 constituted a mode of proceedings error under O'Rama. Because it was “impossible to determine if the note was presented to the judge or if the jury reached a verdict without the judge being aware they had submitted the note,” the Appellate Division rejected defendant's assertion and affirmed (99 A.D.3d 522, 523, 951 N.Y.S.2d 867 [1st Dept.2012] ). A Judge of this Court granted defendant leave to appeal (21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398  ).
People v. Pamela Hanson
Defendant Pamela Hanson was charged with murdering an acquaintance. The jury sent a series of notes to the court during deliberations, and the second note, issued at 1:05 p.m., was marked as court exhibit 4 and requested “First Det. Statement.” The third note, sent at 1:21 p.m. and marked as court exhibit 5, read: “To clear up the first note, we would like to hear Det. Moss [sic] direct examination.” The jury's fourth and final note, bearing the time 2:12 p.m. and marked court exhibit 6, informed the court that the jury had arrived at a verdict. The transcript does not show that the court was aware of the second or third jury note, or that the notes were shared with the parties before the jury convicted defendant of second-degree murder and fourth-degree grand larceny.
defendant leave to appeal (21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394  ).
Defendants assert that the trial courts committed mode of proceedings errors under the O'Rama rule by accepting the verdicts without acknowledging or responding to jury notes that requested specific information for use in jury deliberations. The People submit that the presumption of regularity permits an inference that the trial courts informed defense counsel about the contents of the jury notes and that O'Rama does not obligate a trial court to make a record documenting that action. In defendant Hanson's case, the People alternatively ask us to overrule our precedent that establishes an O'Rama violation as a mode of proceedings error.
CPL 310.30 is the primary statutory authority governing the handling of requests for information from a deliberating jury. It requires trial courts to give “notice to both the people and counsel for the defendant” before responding to a note from a deliberating jury (CPL 310.30 ; see e.g. People v. Alcide, 21 N.Y.3d 687, 691–692, 976 N.Y.S.2d 432, 998 N.E.2d 1056  ). 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 , citing People v. O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). In furtherance of these requirements, a court must read a jury note “verbatim” so that the parties have “the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response” (Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ).
We outlined in O'Rama the step-by-step procedure that should be followed when a deliberating jury requests information (see 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). First, a note should be marked as a court exhibit and read into the record in the presence of the attorneys before the jury is returned to the courtroom. Second, the judge should then allow counsel to comment and recommend responses to the jury's inquiry. Third, the judge should articulate the substance of its proposed response and allow the attorneys to offer modifications before the jury returns to the courtroom. And, fourth, the judge should read the note to the jury to correct any inaccuracies before providing “such requested information or instruction as the court deems proper” (CPL 310.30 ).
As a general rule, errors in criminal cases are reviewable on appeal only if they are adequately preserved by the appellant (see CPL 470.05 ). A “ ‘very narrow’ exception” to the preservation rule exists for a “limited class” of so-called “mode of proceedings” errors that “ ‘go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted’ ” (People v. Rivera, 23 N.Y.3d 827, 831, 993 N.Y.S.2d 656, 18 N.E.3d 367 , quoting People v. Kelly, 5 N.Y.3d 116, 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179  ). A trial court's failure to fulfill the “core responsibility” under O'Rama is treated as a mode of proceedings error (see People v. Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). O'Rama, however, was not designed “to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize
Although not every violation of CPL 310.30 is immune from normal preservation principles (see e.g. People v. Mays, 20 N.Y.3d 969, 971, 959 N.Y.S.2d 119, 982 N.E.2d 1252  ; People v. Ippolito, 20 N.Y.3d 615, 625, 964 N.Y.S.2d 499, 987 N.E.2d 276  ; People v. Williams, 21 N.Y.3d 932, 934–935, 969 N.Y.S.2d 421, 991 N.E.2d 195  ; People v. Kadarko, 14 N.Y.3d 426, 429–430, 902 N.Y.S.2d 828, 928 N.E.2d 1025  ), a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL 310.30and qualifies as a mode of proceedings error (see e.g. People v. Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). The record therefore must indicate compliance with adequate procedures under O'Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled (see People v. Walston, 23 N.Y.3d 986, 990, 991 N.Y.S.2d 24, 14 N.E.3d 377  ). The “presumption of regularity” (see e.g. People v. Velasquez, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376  ) cannot salvage an O'Rama error of this nature (see People v. Tabb, 13 N.Y.3d 852, 852, 891 N.Y.S.2d 686, 920 N.E.2d 90  ) and this is not the first time—contrary to our dissenting colleague's belief—that a judge's apparent unawareness of a jury note or unresponsiveness has led to a new trial (see People v. Cruz, 14 N.Y.3d 814, 816, 901 N.Y.S.2d 122, 927 N.E.2d 542  ). And, somewhat ironically, the dissent recognizes that the errors in these appeals were so fundamental that they are exempt from the preservation rule (see dissenting op. at 302, 998 N.Y.S.2d at 159, 22 N.E.3d at 1027).
Nor are we persuaded by the dissent's reliance on pre-O'Rama cases that imposed a “serious prejudice” requirement (see People v. Agosto, 73 N.Y.2d 963, 966, 540 N.Y.S.2d 988, 538 N.E.2d 340  ; People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212  ).
The People urge us to disavow our holding in Walston, 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 (2014) that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama. We recently discussed the principles underlying the doctrine of stare decisis (see People v. Peque, 22 N.Y.3d 168, 194, 980 N.Y.S.2d 280, 3 N.E.3d 617 , cert. denied sub nom. Thomas v. New York, 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75  ) and it is sufficient for us to reiterate that a “compelling justification” is required to cast aside precedent (id.; see People v. Lopez, 16 N.Y.3d 375, 384 n. 5, 923 N.Y.S.2d 377, 947 N.E.2d 1155  ).
Such a circumstance is absent in these appeals. Walston, 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 (2014) broke no new ground—it built upon prior law (see People v. Tabb, 13 N.Y.3d at 852, 891 N.Y.S.2d 686, 920 N.E.2d 90 ) and advanced the two requirements that we identified over 20 years ago in O'Rama: that parties must be given meaningful notice of a jury's request for substantive information; and that deliberating jurors must receive a meaningful response to their inquiry (see People v. O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; see also People v. Kisoon, 8 N.Y.3d at 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). These mandates were not satisfied in the two cases now before us since the substantive jury notes, marked as court exhibits, were
neither revealed to the attorneys nor addressed by the courts. Those deficiencies could have been easily avoided by making a record of compliance with the O'Rama guidelines. If there was uncertainty regarding the number of notes that had been forwarded during deliberations, the best practice would have been for the judge to inquire before the verdict was announced. Since that did not occur in these cases, defendants are entitled to new trials.
Defendant Silva's drug-related convictions may be upheld because the information requested by the jury was restricted to attempted weapon possession (see People v. Walston, 23 N.Y.3d at 990, 991 N.Y.S.2d 24 ) and no reversible error occurred during the People's summation. Since the indictment did not include a count of attempted weapon possession, however, the People may retry Silva for that offense only if a grand jury charges him with that crime (see People v. Mayo, 48 N.Y.2d 245, 253, 422 N.Y.S.2d 361, 397 N.E.2d 1166  ).
Accordingly, in People v. Silva, the order of the Appellate Division should be modified by vacating the conviction of attempted criminal possession of a weapon in the third degree, with leave to the People to present a charge of that offense to a new grand jury and, as so modified, affirmed. In People v. Hanson, the order of the Appellate Division should be reversed and a new trial ordered.
SMITH, J. (dissenting in People v. Silva and concurring in People v. Hanson ).
We have never previously applied the automatic-reversal rule of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) in a case where the jury sent a note to which the trial court never responded. O'Rama, and all the cases following it, were cases in which the court responded without complying with the O'Rama protocol. (People v. Cruz [14 N.Y.3d 814, 901 N.Y.S.2d 122, 927 N.E.2d 542 (2010) ], cited by the majority [majority op. at 300, 998 N.Y.S.2d at 158, 22 N.E.3d at 1026], is not an exception; the defendant in Cruz relied on O'Rama, but O'Rama was not the basis for our decision.) Cases 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, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 (1987) and People v. Agosto, 73 N.Y.2d 963, 540 N.Y.S.2d 988, 538 N.E.2d 340 (1989), which require reversal only where the defendant is prejudiced by the failure to respond.
In Lourido, we found an error sufficient, in combination with others, to compel reversal where the jury requested a read-back of the cross-examination of a key witness, received no response and rendered a verdict some three hours later; we implied that the court should at least have asked the jury, before accepting the verdict, whether it still wanted the testimony read back (id. at 431–433, 522 N.Y.S.2d 98, 516 N.E.2d 1212 ). In Agosto, by contrast, we affirmed a conviction on a jury verdict rendered 20 minutes after two jurors had (in the late morning) sent a note asking that the jury be dismissed before sundown. We found no “significant probability of any prejudice to defendant” (id. at 967, 540 N.Y.S.2d 988, 538 N.E.2d 340 ).The majority seems to assume that a case in which a court responds to a jury note without proper input from defense counsel is indistinguishable from one in which the court neither seeks input from defense counsel nor responds at all, and that O'Rama must therefore be read as having superseded Lourido and Agosto. But O'Rama itself distinguished Agosto on the ground that in O'Rama “the trial court did respond to the juror's inquiry”
(O'Rama, 78 N.Y.2d at 280, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). Perhaps the distinction is a fine one, but it does not seem unreasonable to say that a response tainted by flawed procedure is worse than no response at all. Because I find O'Rama a troubling case, for reasons I have previously explained (see People v. Walston, 23 N.Y.3d 986, 990–992, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014, Smith, J., concurring] ), I would not extend it to a situation not clearly within its scope.
Thus I would apply Lourido and Agosto to these cases. The consequences of doing so are not obvious, because the delays here, about an hour in each case, were longer than in Agosto but shorter than in Lourido, and because the juries' inquiries in these cases, unlike the one in Agosto, were substantive. I would put Silva on the Agosto side of the line: I do not see, under all of the circumstances, a significant possibility that the failure to respond to the jury's note prejudiced defendant in that case. On the other hand, Hanson, like Lourido, involved a jury request for the read-back of critical testimony, and I cannot say there was no prejudice caused by the court's failure to respond. Thus I would affirm in Silva, but I concur in the decision to reverse in Hanson.
Lest my silence be taken for acquiescence, I will mention that I still think, as I did when I wrote my concurrence in Walston, that O'Rama's holding on the question of mode of proceedings error should be reconsidered in a proper case. But I do not think this case presents that issue. The problem I wrote about in Walston was the holding in O'Rama that a failure to follow O'Rama's teachings is an error exempt from the preservation requirement. Here, there is no indication in the record of either case that defendants ever saw or knew about the jury notes that went unanswered. Thus they cannot be faulted for failing to preserve any error, and whether we should revisit the O'Rama holding on preservation is a question for a future case.
Chief Judge LIPPMAN and Judges READ, PIGOTT and RIVERA concur; Judge SMITH dissents in an opinion; Judge ABDUS–SALAAM taking no part.In People v. Silva: Order modified by vacating the conviction of attempted criminal possession of a weapon in the third degree, with leave to the People, if they be so advised, to resubmit a charge of attempted criminal possession of a weapon in the third degree to a new grand jury and, as so modified, affirmed.
Chief Judge LIPPMAN and Judges READ, PIGOTT and RIVERA concur; Judge SMITH concurs in result in an opinion; Judge ABDUS–SALAAM taking no part.
In People v. Hanson: Order reversed and a new trial ordered.