People v. Mays

• Decision Date: 17 June 2011
• Citation: 2011 N.Y. Slip Op. 05329,85 A.D.3d 1700,925 N.Y.S.2d 758
• Parties: The PEOPLE of the State of New York, Respondent,v.Calvin MAYS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1700

925 N.Y.S.2d 758

2011 N.Y. Slip Op. 05329

The PEOPLE of the State of New York, Respondent,

v.Calvin MAYS, Defendant–Appellant.

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

June 17, 2011.

Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Stephen X. O'brien of Counsel), for Respondent.PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of two counts each of robbery in the first degree (Penal Law § 160.15[4] ) and robbery in the second degree (§ 160.10 [1] ), defendant contends that Supreme Court erred in allowing interaction between the prosecutor and the jurors during deliberations while a video recording was replayed. Defendant failed to preserve that contention for our review ( see CPL 470.05[2] ), however, and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). We reject defendant's contention that, pursuant to People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, preservation of defendant's contention is not required. In O'Rama, the Court of Appeals “note[d] that the court's error in failing to disclose the contents of [a jury] note had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from the organization of the court or the mode of proceedings prescribed by law” ( id. at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 [internal quotation marks omitted]; see People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281). Here, there was no significant departure from the organization of the court or the mode of proceedings prescribed by law ( see generally People v. Wiggins, 304 A.D.2d 322, 323, 758 N.Y.S.2d 26, lv. denied 100 N.Y.2d 625, 767 N.Y.S.2d 409, 799 N.E.2d 632; People v. Davis, 260 A.D.2d 726, 729–730, 687 N.Y.S.2d 803, lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099). As recognized by the Court of Appeals, “not every communication with a deliberating jury requires the participation of the court” ( People v. Bonaparte, 78 N.Y.2d 26, 30, 571 N.Y.S.2d 421, 574 N.E.2d 1027), and a ministerial communication concerning the scope of a request for a readback that is “wholly unrelated to the substantive legal or factual issues of the trial” does not violate O'Rama or CPL 310.30 ( People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660; see People v. Gruyair, 75 A.D.3d 401, 904 N.Y.S.2d 48, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821). Here, the record establishes that the prosecutor's communications with the jury were “merely ministerial” ( People v. Pichardo, 79 A.D.3d 1649, 1652, 917 N.Y.S.2d 764, lv. denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187). “The [prosecutor] did not attempt to convey any legal instructions to the jury or to instruct [it] as to [its] duties and obligations ... [, nor did the prosecutor] deliver any instructions to the jury concerning the mode or subject of [its] deliberations” ( Bonaparte, 78 N.Y.2d at 31, 571 N.Y.S.2d 421, 574 N.E.2d 1027). Thus, “[i]n the present case, unlike in O'Rama ..., [any] error does not amount to a failure to provide counsel with meaningful notice of the contents of [a] jury note or an opportunity to respond” ( People v. Kadarko, 14 N.Y.3d 426, 429, 902 N.Y.S.2d 828, 928 N.E.2d 1025).

It is hereby ORDERED that the judgment so appealed from is affirmed.

All concur except FAHEY and MARTOCHE, JJ., who dissent and vote to reverse in accordance with the following Memorandum:

We respectfully dissent. In our view, Supreme Court improperly delegated control of a critical portion of the proceedings to the prosecutor insofar as it allowed the prosecutor to fashion responses to juror questions and guide the jurors through the playback of video recordings. Consequently, we would reverse the judgment of conviction and grant defendant a new trial on those counts of the indictment of which he was convicted.

In 2007, defendant was tried with respect to a series of charges arising from two incidents of robbery that occurred in Monroe County during October and November of 2006. During deliberations, the jury was returned to the courtroom in response to a jury note. The note was not included in the record on appeal, and the transcript contains no discussion between the prosecutor and defense counsel, in the presence of defendant, concerning a proposed response to the note. Rather, the record reflects that the court determined that the jurors would have to return to the courtroom to review video recordings allegedly made during the robberies.

A playback of the video recordings was arranged, and the prosecutor ran the video playback machine and directly communicated with one juror concerning what the jurors wanted to see on the video recordings. Indeed, the court allowed the prosecutor to engage in a discussion with the jury about that footage. After playing one of the three surveillance videos, the prosecutor asked, “The next one?” and then stated, “There is another.” When a juror asked whether it was possible to “freeze it when [the suspects] are together,” the prosecutor did not consult with the court but unilaterally replied, “I'll see if I can do that. I may have to start from the beginning to get that for you.” The prosecutor further stated, “I'll keep trying for you.” Moreover, at one point during her exchange with the jury, the prosecutor asked, “Do you want to see it again?” No objection was made by defense counsel during the playback process.

Initially, we do not agree with the majority that preservation of defendant's contention is required. In our view, the interaction, which was unaccompanied by any admonition by the court, “ ‘goes to the general and over-all procedure of the trial’ ” and is a mode of trial proceedings error for which preservation is not required ( People v. Hawkins, 11 N.Y.3d 484, 492 n. 2, 872 N.Y.S.2d 395, 900 N.E.2d 946).

“Under CPL 310.30, upon a jury's request for reinstruction or information ‘the court must direct that the jury be returned to the courtroom and, after notice to both the [P]eople and counsel for the defendant, and in the presence of the defendant, must give such requested information and instruction as the court deems proper’ ” ( People v. Lykes, 81 N.Y.2d 767, 769, 593 N.Y.S.2d 779, 609 N.E.2d 132, quoting CPL 310.30). “[A] court may not delegate the responsibility of communicating with the jury to non-judicial personnel, and generally may not communicate with the jury through a non-judicial intermediary” on matters that are not ministerial in nature, i.e., communications that do not concern information pertaining to the law or the facts of the case ( People v. Moyler, 221 A.D.2d 943, 943, 634 N.Y.S.2d 593, lv. denied 87 N.Y.2d 905, 641 N.Y.S.2d 235, 663 N.E.2d 1265, lv. dismissed 87 N.Y.2d 923, 641 N.Y.S.2d 605, 664 N.E.2d 516; see People v. Bonaparte, 78 N.Y.2d 26, 30, 571 N.Y.S.2d 421, 574 N.E.2d 1027; People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894, rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558). “A violation of that rule cannot be waived or consented to by defendant, presents a reviewable question of law even in the absence of objection, and is not amenable to harmless error analysis” ( Moyler, 221 A.D.2d at 944, 634 N.Y.S.2d 593; see Ahmed, 66 N.Y.2d at 310–311, 496 N.Y.S.2d 984, 487 N.E.2d 894). Thus, it is reversible error when someone other than the court performs the judicial function of responding to the jury's request for information concerning a matter that is not ministerial in nature ( see People v. Khalek, 91 N.Y.2d 838, 666 N.Y.S.2d 1020, 689 N.E.2d 914; People v. Cassell, 62 A.D.3d 1021, 880 N.Y.S.2d 303; People v. Flores, 282 A.D.2d 688, 689, 725 N.Y.S.2d 655).

In Ahmed (66 N.Y.2d at 309–310, 496 N.Y.S.2d 984, 487 N.E.2d 894), the defendant agreed to allow the court's law...