People v. Edwards
| Decision Date | 03 August 2022 |
| Docket Number | 2013-07791,Ind. No. 5010/10 |
| Citation | 208 A.D.3d 510,172 N.Y.S.3d 466 |
| Parties | The PEOPLE, etc., respondent, v. Stephon EDWARDS, appellant. |
| Court | New York Supreme Court — Appellate Division |
Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, and Rebecca Height of counsel), for respondent.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered July 19, 2013, convicting him of criminal sexual act in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted, after a jury trial, of two counts of criminal sexual act in the first degree. The jury acquitted him of a third count, and deadlocked on two other counts, which the Supreme Court dismissed. The charges stemmed from a series of three sexual assaults (one of which involved a codefendant) that allegedly occurred during the early morning hours of June 2, 2010, after the defendant accosted the complainant in Brooklyn, as she was walking home. The codefendant was acquitted of the two charges against him.
During its deliberations, the jury sent a total of 11 notes to the Supreme Court. On appeal, the defendant claims that the court's handling of the notes evinced a general "disregard" for the suggested procedure for receiving and responding to jury notes outlined by the Court of Appeals in ( People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ), and resulted in the commission of three mode of proceedings errors. These three errors in particular, the defendant argues, require reversal of his convictions. We disagree.
The Court of Appeals began its analysis in O'Rama with the text of 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" ( People v. O'Rama , 78 N.Y.2d at 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 [internal quotation marks omitted]). When the court receives such a request, CPL 310.30 further provides, "[it] must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper." The statute, then, "imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond" in a way that is meaningful ( People v. O'Rama , 78 N.Y.2d at 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 ).
O'Rama held that the notice to counsel contemplated by the statute ( People v. Nealon, 26 N.Y.3d 152, 156, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [citation and internal quotation marks omitted]). In other words, "summarizing the substance of the note" does not suffice under O'Rama ( People v. Nealon, 26 N.Y.3d at 156, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ); counsel must be informed of the "verbatim" contents of the jury's inquiry ( People v. Dennis, 192 A.D.3d 1137, 1138, 145 N.Y.S.3d 111 ). A failure in this regard amounts to a mode of proceedings error that requires reversal of a conviction regardless of whether there was an objection (see People v. Nealon, 26 N.Y.3d at 157, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ), and regardless of whether the court's supposed mishandling of the note may ultimately have been harmless error (see People v. Mack, 27 N.Y.3d 534, 540, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ).
This rule applies not only where, as in O'Rama itself, the record clearly demonstrates that counsel was not shown a jury note (see People v. O'Rama , 78 N.Y.2d at 275, 574 N.Y.S.2d 159, 579 N.E.2d 189 ), but also where the record is ambiguous on the issue (see e.g. People v. Parker , 32 N.Y.3d 49, 59, 84 N.Y.S.3d 838, 109 N.E.3d 1138 ). Thus, contrary to the ordinary requirement that, on appeal, it is the defendant's burden to provide a record that is adequate to permit review of any claims he wishes to raise (see People v. Briggs , 123 A.D.3d 1051, 1052, 999 N.Y.S.2d 480 ), it is enough, in the O'Rama context, for the defendant to show that defense counsel might perhaps not have seen a jury note, even when the surrounding circumstances suggest otherwise (see People v. Parker , 32 N.Y.3d at 59, 84 N.Y.S.3d 838, 109 N.E.3d 1138 ; cf. People v. Silva , 24 N.Y.3d 294, 300, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ).
O'Rama outlined a four-step procedure for addressing substantive jury communications. First, the note should be marked as a court exhibit. Before the jury is returned to the courtroom, the note should be read into the record in the attorneys’ presence. At that point, the court should elicit from the attorneys their views as to how the inquiry should be answered. After that, the court should explain how it intends to respond to the note, allowing counsel the opportunity to provide further feedback. Finally, once the jury has been returned to the courtroom, "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" ( People v. Silva, 24 N.Y.3d at 299, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [internal quotation marks omitted]).
Still, the Court of Appeals has "frequent[ly] observ[ed] that not every departure from the O'Rama procedure or violation of CPL 310.30 constitutes a mode of proceedings error" ( People v. Mack, 27 N.Y.3d at 539, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ). Of particular relevance here, O'Rama is only implicated when the jury's inquiry is "substantive" ( People v. O'Rama, 78 N.Y.2d at 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; see People v. Parker, 32 N.Y.3d at 59, 84 N.Y.S.3d 838, 109 N.E.3d 1138 ; People v. Mack, 27 N.Y.3d at 536–537, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ).
In the 30 years since O'Rama was decided, the Court of Appeals has explored many aspects of the jury note protocol that was first articulated therein. However, the distinction between what constitutes a "substantive" jury inquiry and what does not continues to defy easy categorization. Consistent with CPL 310.30 ’s express concern with "request[s]" for "further instruction or information with respect to the law," "the content or substance of any trial evidence," or "any other matter pertinent to the jury's consideration of the case," the Court of Appeals has deemed notes to be substantive that request "clarification of a legal term" ( People v. Williams, 21 N.Y.3d 932, 934, 969 N.Y.S.2d 421, 991 N.E.2d 195 ) or additional instruction on a particular legal concept (see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 ); or inquire as to how to proceed in the face of an apparent deadlock (see People v. Kisoon, 8 N.Y.3d 129, 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ); or, similarly, report that a verdict has been reached on some counts but that there is "a lot of work to do" on another count ( People v. Morrison, 32 N.Y.3d 951, 953, 84 N.Y.S.3d 819, 109 N.E.3d 1119 [internal quotation marks omitted]).
The Court of Appeals, as well as this Court, have frequently distinguished "ministerial" requests from substantive ones. A range of jury inquiries have been characterized as ministerial, from simple requests for more "jury note sheets" or to take a smoking break (see People v. Mack, 27 N.Y.3d at 537 n. 1, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ), to directions to dim the lights during the replaying of a video in evidence, or to pause the video at a particular point (see People v. Mays, 20 N.Y.3d 969, 971, 959 N.Y.S.2d 119, 982 N.E.2d 1252 ). A jury note requesting to see a report that was not in evidence was likewise deemed ministerial because responding to it simply required informing the jury of that fact (see People v. Hernandez, 198 A.D.3d 465, 466, 155 N.Y.S.3d 159 ; cf. People v. Gough, 142 A.D.3d 673, 675, 37 N.Y.S.3d 280 ). In Morrison , the Court of Appeals acknowledged that a jury note "requesting instruction on whether to continue deliberating or to return the next morning ... would require only a ministerial response" ( People v. Morrison, 32 N.Y.3d at 953, 84 N.Y.S.3d 819, 109 N.E.3d 1119 ). The determination of which side of the substantive/ministerial divide a jury inquiry falls should be guided, at the end of the day, by the primary concern of CPL 310.30 (see People v. O'Rama, 78 N.Y.2d at 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 ), which is, as the provision's title suggests, responding to "request[s] for information" ( CPL 310.30 ). With these principles in mind, we turn to the notes at issue in this case.
During the afternoon of the second day of deliberations, the jury sent three notes in quick succession. Jury note 5, which was signed at 3:11 p.m., reported that a juror wanted "to know if she [would] be able to get to her 4:30 p.m. class." This note was never read into the record, but the defendant concedes on appeal that it was "ministerial in nature."
Note number 6 (marked as court exhibit no. 7) was signed less than 20 minutes later, at 3:29 p.m. It stated: "We are still deliberating on charges [the word "charges" was crossed out] [a]ll charges[;] on charge 1 for [the defendant] and charge 1–2 for [the codefendant] have nearly reached a verdict." This note was also not read into the record, but the following notation was made on the court action sheet:
Less than 10 minutes after that, the jury signed note 7, which indicated it had reached a verdict on the charges...
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