People v. Johnson

• Decision Date: 12 March 2020
• Docket Number: 109364
• Citation: 183 A.D.3d 77,122 N.Y.S.3d 137
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 77

122 N.Y.S.3d 137

The PEOPLE of the State of New York, Respondent,

v.Robert JOHNSON, Appellant.

109364

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 4, 2019

Decided and Entered: March 12, 2020

Paul J. Connolly, Delmar, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons and Pritzker, JJ.

Garry, P.J. Defendant was charged with predatory sexual assault against a child after the victim disclosed that defendant had sexually assaulted her on multiple occasions, beginning in 2011 when she was 10 years old and continuing until May 2014. County Court (LaBuda, J.) denied defendant's motions to, among other things, dismiss the indictment, inspect the grand jury minutes and suppress statements and evidence. Following a jury trial, defendant was convicted as charged, and defendant's motion to set aside the verdict pursuant to CPL 330.30 was denied by County Court. Supreme Court (Schick, J.) sentenced defendant to a prison term of 25 years to life. Defendant appeals.

When this matter previously came before this Court ( 175 A.D.3d 14, 104 N.Y.S.3d 397 [2019] ), we held the appeal in abeyance and remitted the matter to Supreme Court for a reconstruction hearing to determine the circumstances surrounding a jury note marked as Court exhibit No. 1. As we noted therein, after the jury began deliberations, counsel and County Court agreed that trial exhibits could be provided to the jury upon its request without reconvening and then took a lunch break. The next entry in the trial record indicated that a jury note bearing the time 12:30 p.m. was received and marked as Court exhibit No. 1, requesting a DNA report and "[a] chronology of events starting with [defendant] dating [the victim's relative]." The DNA report was a trial exhibit, but no such chronology existed. With no further reference to Court exhibit No. 1, the record next stated that the court reconvened and accepted the jury's guilty verdict. The final entry in the trial record revealed that two notes from the jury announcing that it had reached a verdict were marked as Court exhibit No. 2 and Court exhibit No. 3. We remitted the matter to Supreme Court for a reconstruction hearing to determine "whether County Court's core responsibilities were triggered by its knowledge of [Court exhibit No. 1 ] or by circumstances that should have alerted the court to its presence" ( id. at 19, 104 N.Y.S.3d 397 ).

Supreme Court has now conducted the hearing and filed a transcript with its findings. At the hearing, the County Judge who had presided over the trial and the court clerk testified that neither had any specific memory of Court exhibit No. 1. The clerk testified, based upon the minutes that she had transcribed at the time, that she received the note and, as agreed, provided the DNA report to the jury without advising the court and counsel. She stated that her routine procedure would have been to advise the court of the request for a chronology, as it was not a trial exhibit. However, she believed that she had not done so in this case as the minutes indicated that a second note was received at 1:05 p.m., before the court reconvened, advising that the jury had reached a verdict.¹ According to the minutes, the court reconvened to accept the verdict at 1:20 p.m.

The judge testified that he remembered the trial but had no memory of the note. The judge stated that it was his ordinary practice, upon counsel's agreement, to permit trial exhibits to be provided to the jury without notifying counsel or reconvening, but that a court clerk or court officer would notify the court of any other jury inquiry. The judge further testified that his invariable practice upon being advised of such an inquiry was to notify counsel of the note's specific content and confer with them about the appropriate response. Defendant's trial counsel testified that she had never seen the note before the reconstruction hearing and, if she had seen it, she would have requested "clarification." Following this testimony, Supreme Court made a factual determination that the witness testimony was credible and that there was no evidence that County Court was ever notified of the note's existence at the time of trial. We agree that the hearing established that the court did not know about the note. We further find that nothing in the testimony gave rise to any reason for the court to suspect that such an inquiry might have been received in its absence. Thus, nothing in the circumstances indicates that the court should have known about the note.

It is well established that a trial court's "core responsibility" upon receiving a substantive jury inquiry during deliberations in a criminal trial is to provide counsel with "meaningful notice" of the note's specific content and to give the jury a "meaningful response" ( People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ; see People v. O'Rama, 78 N.Y.2d 270, 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ; see CPL 310.30 ). Once this responsibility has arisen, a trial court's failure to comply is a mode of proceedings error that requires reversal and a new trial without regard to whether the error was preserved (see People v. Morrison, 32 N.Y.3d 951, 952, 84 N.Y.S.3d 819, 109 N.E.3d 1119 [2018] ; People v. Parker, 32 N.Y.3d 49, 59, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ; People v. Mack, 27 N.Y.3d 534, 536, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016] ; People v. O'Rama, 78 N.Y.2d at 279–280, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; but see People v. Meyers, 33 N.Y.3d 1018, 1020, 102 N.Y.S.3d 157, 125 N.E.3d 822 [2019] ). It is also well established, however, "that not every departure from the O'Rama procedure or violation of CPL 310.30 constitutes a mode of proceeding error" ( People v. Mack, 27 N.Y.3d at 539, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ; see People v. Nealon, 26 N.Y.3d 152, 158, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ), and that this designation is reserved for a limited class of errors that "go to the essential validity of the process and [are] so fundamental that the entire trial is irreparably tainted" ( People v. Mack, 27 N.Y.3d at 541, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [internal quotation marks, brackets and citation omitted] ). We are unpersuaded that the failure that apparently occurred here reached this level.

In People v. Silva , 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [2014] and People v. Hanson , 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [2014], the Court of Appeals held that the trial courts committed mode of proceedings errors by failing to notify counsel of jury notes before the juries in each case reached their verdicts, even though the transcripts in both cases failed to establish whether the courts were aware that the notes had been submitted. However, these cases may be distinguished. There, the Court of Appeals held that "[i]f 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" ( id. at 300–301, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ). Here, by contrast, the trial record and the reconstruction hearing transcript, taken together, affirmatively establish that County Court did not know of the existence of Court exhibit No. 1, and that nothing in the surrounding circumstances gave rise or should have given rise to such uncertainty.

People v. Cruz , 14 N.Y.3d 814, 815–816, 901 N.Y.S.2d 122, 927 N.E.2d 542 [2010], which also involved a jury note that was not addressed before the jury reached a verdict, may likewise be distinguished. In that case, as in Silva and Hanson, "[n]othing in the record suggest[ed] that the judge received the jury note" ( id. at 815, 901 N.Y.S.2d 122, 927 N.E.2d 542 ). There, as here, the matter was remitted for a reconstruction hearing in which the trial judge testified to having no independent memory of the circumstances but that, according to standard procedure, the proceeding would have been reconvened and counsel notified had the note's existence been known ( id. at 816, 901 N.Y.S.2d 122, 927 N.E.2d 542 ). Despite this factual similarity, the reversal of the defendant's convictions in Cruz was not based on a failure to comply with O'Rama procedures but, instead, upon the determination that the defendant rebutted the presumption of regularity by demonstrating that the jury had requested, and might have received, a critically important document that was not in evidence ( id. ). This document was the defendant's signed statement to police, which contained admissions and contradicted the misidentification defense that the defendant raised at trial ( id. ). The Court of Appeals based its decision upon the fact that the jury might have received this document in error, and did not reach the defendant's argument that CPL 310.30 and O'Rama were violated. Thus, Cruz does not stand for the proposition that a trial court can commit an O'Rama mode of proceedings error by failing to notify counsel of a jury note, even when it does not know and has no reason to know that the note exists.

Here, the jury did not receive the chronology it requested in Court exhibit No. 1, which did not exist. Moreover, unlike the defendant's incriminating statement in Cruz, the chronology requested by the jury involved background factual information regarding a former relationship between defendant and a relative of the victim that had no relevance to any of the elements of the charged crime or to the jury's process of reaching a verdict (compare People v. Parker, 32 N.Y.3d at 54, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [jury requested fingerprint evidence and the testimony of the complainant and his wife]; People v. Morrison, 32 N.Y.3d at 953, 84 N.Y.S.3d 819, 109 N.E.3d 1119 [jury note indicated that the jury had reached a decision on two counts but was struggling with a...