People v. Alcide

• Decision Date: 10 October 2013
• Citation: People v. Alcide, 2013 NY Slip Op 6598, 21 N.Y.3d 687, 998 N.E.2d 1056, 976 N.Y.S.2d 432 (N.Y. 2013)
• Parties: The PEOPLE of the State of New York, Respondent, v. James ALCIDE, Appellant.
• Court: New York Court of Appeals Court of Appeals

21 N.Y.3d 687

998 N.E.2d 1056

976 N.Y.S.2d 432

2013 N.Y. Slip Op. 06598

The PEOPLE of the State of New York, Respondent,

v.James ALCIDE, Appellant.

Court of Appeals of New York.

Oct. 10, 2013.

Lynn W.L. Fahey, Appellate Advocates, New York City (Melissa S. Horlick of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Leonard Job-love and Keith Dolan of counsel), for respondent.

OPINION OF THE COURT

READ, J.

Defendant James Alcide was indicted for second-degree murder (Penal Law § 125.25[1] ) and second- and third-degree weapon possession (Penal Law §§ 265.03[2]; 265.02[4] ) in connection with a shooting on February 20, 2005. The victim, recently released from prison, had driven a female friend on an errand to pick up clothes at a Brooklyn laundromat late in the afternoon of that day, expecting to meet up with his girlfriend there; she had begun a relationship with defendant while the victim was incarcerated. After the victim spoke briefly with his girlfriend, he turned away and walked into a nearby small grocery store.

A bystander sitting in a car parked on the same side of the street as the grocery store was startled by a shot. When he looked in the direction of the sound, the bystander saw a man firing a gun into the store; he identified defendant as the shooter in a lineup and, later, in court. The victim's friend, who was standing next to the victim's car about 40 feet away from the store, waiting for him to return, also heard gun shots and saw defendant, whom she knew, sprinting out of the store with a gun in hand. The friend ran into the store where the victim was lying on the floor, grievously wounded. He spoke defendant's name to her before losing consciousness. At that point, as a crowd was forming outside and the police were arriving, the friend saw the victim's girlfriend and screamed “All this is your fault, you know. This is your fault.”

In summation, defense counsel principally attacked the reliability of the testimony of the bystander and the victim's friend, the prosecution's two key witnesses. He claimed that the bystander was farther away from the grocery store than he estimated and had an obstructed view of the shooter in crepuscular light, making his eyewitness identification of defendant suspect; and that the friend, who had been convicted of various fraud-related offenses, gave testimony that was incredible (e.g., the victim's dying declaration), or, with respect to numerous factual matters (e.g., the time of the shooting, the color of the gun, the victim's height), inconsistent with other trial evidence. He also contended that the crime scene outside the store, where the police recovered a shell casing and a live cartridge, had been compromised by the crowd of onlookers.

During deliberations, the jury sent notes to the judge to request readbacks of the testimony of both the bystander and the first police officer to arrive at the crime scene. At trial, this officer testified that on February 20, 2005, she and her partner were working patrol when they were notified via radio that a male had been assaulted; they drove the five or six blocks to the location of the reported assault, which was the grocery store; she observed a crowd outside the store and a shell casing on the sidewalk once the crowd of 20 or 30 onlookers was pushed back; she found the victim lying on the floor inside the store; he was “mumbling, but unconscious” and unable to answer when asked if he had been shot; and the ambulance arrived about two or three minutes later and took the victim to the hospital.

The police officer also described how the crime scene outside the store was cleared of onlookers and secured, and testified that when she arrived, she saw a woman (the victim's girlfriend, as it turned out) “arguing with another individual” in front of the store. At the direction of her supervisor, the officer placed this woman, who denied having seen anything and “didn't really want to talk,” in a patrol car for transport to the precinct. The officer and her partner were then detailed to the hospital, where she was assigned to stay outside the operating room. While waiting there a “couple of hours,” she learned the victim's identity and, later, was informed that he had been pronounced dead. The officer identified the victim's body at the morgue the next morning.

In the presence of defendant, counsel and the jury, the judge stated that he had received “notes requesting the reading of the testimony of the first officer at the crime scene. That will be Court Exhibit 3. And the reading of [the bystander's] testimony, which will be Court Exhibit 4.” He then advised the jurors that

“[t]o expedite [the readbacks], and hopefully to keep you awake, what we will do on the direct, I will read the questions, the court [reporter] will read the witness's response, and we'll reverse that on cross-examination, with the reporter reading the questions and I'll be reading the response of the witnesses.”

Neither party objected to this procedure for handling the read-backs.

The jury ultimately convicted defendant of intentional murder and the top weapon possession count. On December 12, 2006, the judge sentenced him to concurrent terms of imprisonment of 18 years to life and nine years, respectively, for these crimes. Defendant appealed, arguing that the trial judge committed mode of proceedings errors by departing from the protocol for handling jury notes set out in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), and by taking part in the readbacks.

On May 1, 2012, the Appellate Division affirmed the judgment of conviction and sentence ( 95 A.D.3d 897, 942 N.Y.S.2d 875 [2d Dept. 2012] ), concluding that defendant's unpreserved claims did not implicate O'Rama or otherwise constitute mode of proceedings errors, and declined to reach them in the interest of justice. Citing People v. Starling, 85 N.Y.2d 509, 626 N.Y.S.2d 729, 650 N.E.2d 387 (1995), the court noted that “the jury merely requested read-backs of certain trial testimony” (95 A.D.3d at 898, 942 N.Y.S.2d 875). A Judge of this Court granted defendant permission to appeal (19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [2012] ), and we now affirm.

I.

Section 310.30 of the Criminal Procedure Law “imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond” O'Rama, 78 N.Y.2d at 276, 574 N.Y.S.2d 159, 579 N.E.2d 189).¹ Indeed, “the trial 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] ). A court's failure to supply a meaningful notice or response constitutes error affecting the mode of proceedings, and therefore presents a question of law for appellate review even in the absence of timely objection ( see O'Rama, 78 N.Y.2d at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189; CPL 470.05 [2] ).

A trial judge generally fulfills this core responsibility by following the procedure endorsed in O'Rama, which requires submission of a jury inquiry to the trial judge in writing, after which the judge marks the written inquiry as a court exhibit; reads it into the record in counsel's presence and before the jury is recalled to the courtroom; allows counsel an opportunity to suggest responses to the inquiry; informs counsel of his intended instruction; and, once the jury returns, reads the inquiry aloud before responding ( see O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 [adopting the procedure outlined in United States v. Ronder, 639 F.2d 931, 934 (2d Cir.1981) ]; see also Kisoon, 8 N.Y.3d at 134, 831 N.Y.S.2d 738, 863 N.E.2d 990). We have, however, cautioned that the point of our decision in O'Rama 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” (O'Rama, 78 N.Y.2d at 278, 574 N.Y.S.2d 159, 579 N.E.2d 189 [emphasis added]; see also Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990; People v. Lykes, 81 N.Y.2d 767, 769, 593 N.Y.S.2d 779, 609 N.E.2d 132 [1993] [the trial judge did not commit O'Rama error by asking the jury, unbeknownst to the defendant, his counsel and the prosecutor, to clarify its note since the judge read the clarification into the record before reinstructing the jury with respect to the crimes charged, and defense counsel did not object to either the charge or the procedure employed by the court] ). The touchstone is whether the way in which the judge chooses to handle a jury inquiry affords meaningful notice to counsel and a meaningful response to the jury ( see O'Rama, 78 N.Y.2d at 278, 574 N.Y.S.2d 159, 579 N.E.2d 189; see also Lykes, 81 N.Y.2d at 769, 593 N.Y.S.2d 779, 609 N.E.2d 132 [“Section 310.30 does not require notice to defendant in every instance of communication from the jury to the court”] ).

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. Instead, he summarized the note's “substance” for the jury and the parties before addressing the juror's inquiry by administering an Allen charge for a second time ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 [1896] ). At that point, defense counsel unsuccessfully sought the note's disclosure. We held that by neglecting to make a verbatim account of the juror's communication available to the defendant's attorney, the court deprived him of meaningful notice in violation of CPL 310.30, “thus represent[ing] a significant departure from...