People v. Mack

• Decision Date: 07 June 2016
• Parties: The PEOPLE of the State of New York, Appellant, v. Terrance L. MACK, Respondent.
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 534
55 N.E.3d 1041
36 N.Y.S.3d 68
2016 N.Y. Slip Op. 04321

The PEOPLE of the State of New York, Appellant,
v.
Terrance L. MACK, Respondent.

Court of Appeals of New York.

June 7, 2016.

36 N.Y.S.3d 70

Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appellant.

Sullivan & Cromwell LLP, New York City (Nicolas Bourtin and Amanda L. Houle of counsel), and Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), for respondent.

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OPINION OF THE COURT

FAHEY, J.

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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 N.Y.2d 270, 276–277, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ). A trial court's failure to fulfill its first responsibility—meaningful notice to counsel—falls within the narrow class of mode of proceedings errors for which preservation is not required (see id. at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). On this appeal, we consider

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whether the preservation rule applies when counsel unquestionably had meaningful notice of the jury's substantive inquiries, but the trial court did not respond to those inquiries

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before accepting the verdict. We hold 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 court's alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review.

I.

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.¹

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

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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 (117 A.D.3d 1450, 984 N.Y.S.2d 768 [4th Dept.2014] ). 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 (see id. at 1451, 984 N.Y.S.2d 768 ). 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 (see id. at 1452, 984 N.Y.S.2d 768 [Lindley, J., dissenting] ).

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The dissenting Justice granted the People leave to appeal to this Court (23 N.Y.3d 1027, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ). We now reverse.

II.

In People v. O'Rama, this Court held that CPL 310.30 requires trial courts to provide meaningful notice to counsel of a substantive inquiry from a deliberating jury, and that meaningful notice “means notice of the actual specific content of the jurors' request” (O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). We have subsequently held that when the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required, regardless of whether the court has fulfilled its other responsibility under CPL 310.30 to provide the jury with a meaningful response to its request (see People v. Walston, 23 N.Y.3d 986, 989–990, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] ; People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90 [2009] ; People v. Kisoon, 8 N.Y.3d 129, 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ). Recently, in People v. Silva, 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022 (2014), rearg. denied 24 N.Y.3d 1216, 4 N.Y.S.3d 598, 28 N.E.3d 33 (2015), where the trial court fulfilled neither of its core responsibilities under CPL 310.30, by failing to inform counsel of the existence of a jury note and also failing to respond to the note before accepting the jury's verdict, we held that a mode of proceedings error had occurred (see id. at 299–300, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ).

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In People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 (2015), we reiterated that a court complies with its responsibility to provide counsel with meaningful notice of a substantive jury inquiry by reading the precise content of the note into the record in the presence of counsel, defendant, and the jury before providing a response, even if the court departs from the O'Rama procedure (see generally O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 ) by failing to discuss the note or the court's intended response with counsel before recalling the jury into the courtroom (see Nealon, 26 N.Y.3d at 160–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). That holding was based upon our precedent requiring preservation when the trial court departs from the O'Rama procedure but counsel nevertheless has meaningful notice of the jury note (see People v. Alcide, 21 N.Y.3d 687, 693–694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 [2013] ; People v. Williams, 21 N.Y.3d 932, 934–935, 969 N.Y.S.2d 421, 991 N.E.2d 195 [2013] ; People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791 [2010] ; People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995] ). We repeated our frequent observation that not every departure from the O'Rama procedure or violation of CPL 310.30 constitutes a mode of proceedings error (Nealon, 26 N.Y.3d at 158, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ; see Silva, 24 N.Y.3d at 299, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ; Walston, 23 N.Y.3d at 989, 991 N.Y.S.2d 24, 14 N.E.3d 377 ; Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ).

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. Our jurisprudence makes clear that a trial court's failure

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36 N.Y.S.3d 73

to provide meaningful notice to counsel of a substantive jury note constitutes a mode of proceedings error (see Nealon, 26 N.Y.3d at 156–157, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ; Walston, 23 N.Y.3d...