Jury Notes And Mode Of Proceedings Error: If Counsel Is Informed But No Meaningful Response To Jury Then No Mode Of Proceedings Error

People v Mack

New York Court of Appeals

2016 NY Slip Op 04321

Decided June 7, 2016

…where trial court informs defense counsel of the contents of the jury note, but does not provide meaningful response to jury?regarding the jury note, it is not a mode of proceedings error…

Issue: Whether a mode of proceedings error occurs when the trial court fails to provide a meaningful response to a substantive jury note but notifies defense counsel of the contents of the note.

Holding: In Nealon, Silva, and other post-O’Rama decisions considering whether failure to comply with CPL 310.30 constitutes a mode of proceedings error, the Court did not discuss whether a trial court’s alleged failure to provide a meaningful response to a substantive inquiry from the jury, standing alone, constitutes a mode of proceedings error for which preservation is not required. A trial court’s failure to provide meaningful notice to counsel of a substantive jury note constitutes a mode of proceedings error (see Nealon, 26 NY3d at 156-157; Walston, 23 NY3d at 989-990; Tabb, 13 NY3d at 853; Kisoon, 8 NY3d at 134-135). Silva also makes clear that a trial court’s failure to comply with both of its core responsibilities both meaningful notice to counsel and a meaningful response to the jury ?requires reversal despite lack of preservation (Silva, 24 NY3d at 299-300).

In this case, the Court of Appeals held that where counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the courts alleged violation of the meaningful response requirement does not contain a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review.

Criminal Procedure Law 310.30 imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury, People v O’Rama, 78 NY2d 270, 276-277 (1991).

Mode of Proceedings Error: Mode of proceedings errors are immune not only from the rules governing preservation and waiver but also from harmless error analysis (see e.g. People v Mehmedi, 69 NY2d 759, 760 [1987], rearg denied 69 NY2d 985 [1987]; People v Ahmed, 66 NY2d 307, 310 [1985], rearg denied 67 NY2d 647 [1986]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]). Such errors require reversal without regard to the prejudice, or lack thereof, to the defendant.

Facts: Defendant was charged with gang assault in the first degree for his involvement in a group attack on a woman that resulted in her death. Shortly before 6:00 p.m. on the first day of deliberations, the jury stated that it was deadlocked. After the court responded to that note, the jury returned to its deliberations at 6:02 p.m. The court then informed counsel that it would stand in recess until 7:30 p.m. There is no indication on the record that the jury was informed of this recess. Defendant was charged with gang assault in the first degree for his involvement in a group attack on a woman that resulted in her death. Shortly before 6:00 p.m. on the first day of deliberations, the jury stated that it was deadlocked. After the court responded to that note, the jury returned to its deliberations at 6:02 p.m. The court then informed counsel that it would stand in recess until 7:30 p.m. There is no indication on the record that the jury was informed of this recess.

During the recess, the jury sent out three notes.
The first note, sent at 6:20 p.m., requested the court’s instructions regarding the importance of a single witness in a case versus multiple witnesses and the instructions about the meaning of reasonable doubt. The second note, sent at 6:43 p.m., requested to hear the testimony of one of the People’s witnesses, who had identified defendant as one of the assailants, regarding the defendant’s leaving of the crime scene, and also asked for more jury request sheets. The third note, sent at 6:47 p.m., asked for a smoking break.

When the proceedings reconvened at 7:51 p.m., the court marked these three notes as court exhibits and then read the notes verbatim into the record, in the presence of counsel and defendant. The court stated that it planned to reread its earlier legal instructions on the requested topics, and the court and counsel concluded that the People’s witness had not provided any testimony about defendant’s departure from the crime scene. Before the court recalled the jury into the courtroom to provide those responses, however, the court deputy handed the court another note from the jury.

That note, sent at 7:54 p.m. and marked as a court exhibit, stated that the jury had reached a verdict. The court and counsel had an off-the-record bench discussion. At 8:10 p.m., the court announced on the record in the presence of counsel and defendant that the jury had reached a verdict and that the court planned to bring the jurors into the courtroom to take their verdict. The jurors then entered the courtroom and reported that they had found defendant guilty. The court polled the jury and accepted the verdict without responding to the notes sent during the recess or inquiring whether the jurors still desired a response to those notes. Counsel did not object to this procedure.

On appeal, the Appellate Division reversed the judgment and ordered a new trial. The Appellate Division held that the trial court’s failure to provide a meaningful response to the jury’s substantive requests before accepting the verdict constituted a mode of proceedings error for which preservation was not required. The dissenting Justice would have affirmed, concluding that any error did not constitute a mode of proceedings error and, in any event, that there was no error because the jury implicitly rescinded its earlier requests. The dissenting Justice granted the People leave to appeal to the Court of Appeals and the Court reversed.

Legal Analysis:The Court of Appeals held that when the trial court paraphrases or summarizes a jury note, thereby failing to provide counsel with meaningful notice of the specific content of the note, a mode of proceedings error occurs, because counsel cannot be expected to object to the court’s response to the jury or to frame an intelligent suggested response if counsel lacks knowledge of the specific content of a substantive jury note, Nealon, 26 NY3d at 157. In other words, counsel generally cannot object to an error of which he or she is unaware.

This Court’s recognition of a mode of proceedings error in?O’Rama?was based upon counsel’s inability to participate effectively or adequately protect the defendant’s rights if counsel lacks notice of the actual specific content of the jurors’ request, O’Rama, 78 NY2d at 277. If the court fails to inform counsel of the precise content of a substantive jury note, the court’s error has the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial, id. at 279.

By contrast, where counsel has meaningful notice of a substantive jury note that has been read verbatim in open court, the court’s failure to discuss the note or its intended response with counsel outside the presence of the jury is not a mode of proceedings error because counsel is not prevented from objecting or from participating meaningfully, Nealon, 26 NY3d at 160-162;Alcide, 21 NY3d at 693-694;Williams, 21 NY3d at 934-935;Ramirez, 15 NY3d at 825-826; Starling, 85 NY2d at 516. In that scenario, counsel is aware of the precise content of the note, knows that he or she has not had an opportunity to provide the court with input on its intended response, and is also aware of the court’s actual response to the jury, which counsel is hearing in open court as the court provides its response to the jury, Nealon, 26 NY3d at 162. Counsel, therefore, has all the knowledge required to make an objection, either to the court’s deviation from the?O’Ramaprocedure or to the court’s response to the jury, or both. In the O’Rama?context, however, lack of notice is the key determinant in classifying a particular procedure as a mode of proceedings error.

Notice gives counsel the opportunity to object to any possible error.
Here, defense counsel had the notice required to enable him to object to the trial court’s procedure if he considered that approach to be prejudicial. Counsel knew the precise content of the jury notes received during the recess because the court read those notes verbatim into the record in counsel’s presence. Counsel knew how the court planned to respond to those notes because the court informed counsel of its intended response. He knew that the jury had sent out another note stating that it had reached a verdict, and that the court planned to accept the verdict without responding to the outstanding notes, because the court announced its intention to recall the jury and take the verdict on the record.

Counsel was in the courtroom when the jurors were recalled and knew that the trial court had not yet responded to the notes sent during the recess or asked the jurors if they still desired a response before the verdict was announced. In short, if defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so, Alcide, 21 NY3d at 694. Had counsel simply requested that the court respond to the outstanding notes before taking the verdict, or that the court ask the jurors whether they still desired a response to those notes, the court could easily have corrected the alleged error.

Furthermore, to designate this alleged error as a mode of proceedings error would mandate that the trial court respond to any outstanding notes before taking the verdict even if defense counsel affirmatively requests that the court accept the verdict without responding to those notes. Mode of proceedings errors are not waivable and therefore require reversal even if the defense affirmatively consents to the court’s action, Ahmed, 66 NY2d at 310-311. The rule defendant proposes would, therefore, require a trial court to ignore a defense request, as a matter of strategy, that the court not respond to a jury note before accepting the verdict. Defendant’s rule would also incentivize a distinct tactic that diminishes the preservation rule. Here, the defense may have made a strategic choice not to challenge the trial court’s procedure, King, 27 NY3d 147, 2016 NY Slip Op 02278.

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 defendant if they were not given the chance to deliberate further. In such situations, if the alleged error is deemed to be a mode of proceedings error, it would be unwise for counsel to object and seek correction of the error, Nealon, 26 NY3d at 162. If the verdict is an acquittal, counsel will have secured the desired trial outcome. If the jury convicts the defendant, counsel will have created an appellate issue requiring automatic reversal and a new trial simply by remaining silent. The Court held ?that they decline to create a rule that would incentivize such tactics and would diminish the important purposes underlying the preservation rule.

The disparate treatment of the two types of errors arises from the practical differences between them; one prevents counsel from participating meaningfully in this critical stage of the trial, O’Rama, 78 NY2d at 279, and the other does not. It is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client’s behalf, People v Hawkins, 11 NY3d 484, (2008).

The Court of Appeals held that the Appellate Division erred in holding that defendant was not required to preserve for appellate review his contention regarding the court’s failure to respond to the jury’s notes.

Although the court’s procedure here may have been error, it was not a mode of proceedings error, and the Court of Appeals held that it does not have jurisdiction to review it. The Court held that it cannot address the People’s alternative contention that the trial court did not err because the jury implicitly withdrew its earlier requests by stating that it had reached a verdict.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts and issues raised but not determined on the appeal to that court.