People v. Meyers, 60 SSM 6

• Decision Date: 09 May 2019
• Docket Number: No. 60 SSM 6,60 SSM 6
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent MEYERS, Appellant.
• Court: New York Court of Appeals Court of Appeals

33 N.Y.3d 1018
125 N.E.3d 822
102 N.Y.S.3d 157

The PEOPLE of the State of New York, Respondent,
v.
Vincent MEYERS, Appellant.

No. 60 SSM 6

Court of Appeals of New York.

May 9, 2019

OPINION OF THE COURT

MEMORANDUM.

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The order of the Appellate Division should be affirmed. While preparing defendant's appeal, counsel discovered a purported jury note, marked as Court Exhibit XIV, in the court file maintained by the County Clerk. Significant ambiguity existed in the record concerning the circumstances in which the exhibit was marked and entered into the court file, including ambiguity as to whether the jury sent the exhibit to the court or, instead, began drafting it but discarded it in favor of sending other, substantially similar notes. The purported note was sequentially marked after the jury note stating that the jury had reached a verdict and was duplicative of other jury notes undisputedly received and read into the record by the court. Further, no other reference to the exhibit existed on the record or in the court file. The Appellate Division directed Supreme Court to conduct a reconstruction hearing to clarify whether Exhibit XIV was, in fact, a jury note requesting further information or instruction from the court pursuant to CPL 310.30. After the hearing, the trial court concluded that Exhibit XIV was a draft or derelict note that was discarded by the jury and never submitted to the court.

We recently held that where the record does not establish that counsel was provided meaningful notice of the contents of a substantive jury note, "the sole remedy is reversal and a new trial," not a reconstruction hearing ( People v. Parker, 32 N.Y.3d 49, 62, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ). However, the purpose of the reconstruction hearing at issue here was not to determine whether the court complied with the counsel notice requirements of CPL 310.30 and People v. O'Rama, 78 N.Y.2d 270, 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991). Instead, the hearing was to determine whether, in the first instance, Exhibit XIV reflected a "jury ... request [to] the court for further instruction or information" ( CPL 310.30 ) such that those obligations were triggered. Moreover, the finding of the courts below, following the reconstruction hearing, that Exhibit XIV was a draft note that the jury

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125 N.E.3d 824

discarded is supported by the record and, thus, beyond our further review. Finally, defendant failed to demonstrate that he was denied effective assistance of counsel.

GARCIA, J. (concurring in result).

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Less than a year ago, in People v. Parker, we held that, in the absence of affirmative record proof that the trial court provided a verbatim account of every jury note, "the sole remedy is reversal and a new trial" ( 32 N.Y.3d 49, 62, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] [emphasis added] ). No matter how strongly the record suggested that defense counsel was, in fact, given meaningful notice of each note, reconstruction of the record is not permitted to ascertain the existence—or nonexistence—of error. Reversal, and only reversal, must result. That was our short-lived Parker rule.

Here, as in Parker, defendant asserted that the trial court failed to satisfy its meaningful notice requirement after defense counsel discovered a jury note that was never mentioned at trial. But unlike in Parker, the Appellate Division directed Supreme Court to conduct a hearing to "assess all the circumstances" regarding the inquiry ( People v. Meyers, 148 A.D.3d 1057, 1057, 51 N.Y.S.3d 98 [2d Dept. 2017] ). Supreme Court then held a reconstruction hearing, where a number of witnesses testified: two jurors, the court clerk, the judge's law secretary, defendant's trial counsel, and the trial prosecutor. Following that hearing, Supreme Court concluded that the inquiry was "a derelict note discarded by the jury," and therefore no error had occurred. The Appellate Division affirmed ( 162 A.D.3d 1074, 80 N.Y.S.3d 125 [2d Dept. 2018] ).

With that knowledge now in hand, Parker 's application would yield an absurd result: automatic reversal of defendant's convictions because of a jury note that was not properly read into the record, even though we now know—although we should not know ( Parker, 32 N.Y.3d at 62, 84 N.Y.S.3d 838, 109 N.E.3d 1138 )—that it was not a jury note at all. Though I agree that we should avoid that senseless outcome, I do not agree that Parker 's per se reversal rule is somehow inapplicable. The trouble with Parker 's application stems not from the facts of this case; it stems from Parker itself.

I.

The Court's dilemma in this case is a familiar one. In People v. O'Rama, the Court first applied the "mode of proceedings" exception to cases involving deviations from CPL 310.30's jury note procedure ( 78 N.Y.2d 270, 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ). Until then, the mode of proceedings doctrine had comprised a "very narrow" exception to our preservation rule ( People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976] ) that was reserved for "the most fundamental of flaws" ( People v. Becoats, 17 N.Y.3d 643, 651, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011] ). Because mode of

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proceedings errors carry extreme and mandatory consequences—immunity from the rules governing preservation, waiver, and harmless error—the doctrine had historically been confined to a "tightly circumscribed class" of cases ( People v. Kelly, 5 N.Y.3d 116, 120, 799 N.Y.S.2d 763, 832 N.E.2d 1179 [2005] ). In a single sentence of dicta, the O'Rama Court changed that.

The results were harsh and widespread. Applying O'Rama, the Appellate Divisions began reversing convictions based on unpreserved claims in any case where the record failed to show adequate compliance with CPL 310.30. Countless reversals resulted (see

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People v. Morrison, 32 N.Y.3d 951, 960–962, 84 N.Y.S.3d 819, 109 N.E.3d 1119 [2018] [Garcia, J. dissenting] [collecting cases] ). Meanwhile, O'Rama faced sharp criticism for its "cursory rational" that "d[id] not seem very persuasive" ( People v. Walston, 23 N.Y.3d 986, 991, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] [Smith, J., concurring] ).

Facing this backlash, the Court began to scale back O'Rama 's sweeping rule. In People v. Nealon, for instance, we held that preservation was required where the trial court provided notice of the contents of a jury note, but failed to consult defense counsel before responding to the jury's inquiry ( 26 N.Y.3d 152, 160–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2016] ). Similarly, in People v. Mack, we rejected the defendant's claim that a mode of proceedings error had occurred where defense counsel had meaningful notice of the jury's inquiries, but the trial court accepted the jury's verdict without first providing a response ( 27 N.Y.3d 534, 537, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016] ). In both Nealon and Mack, we held that a defendant is required to preserve his claim of error where "the trial court fails to provide a meaningful response to a substantive jury note but satisfies its meaningful notice obligations" ( Mack, 27 N.Y.3d at 539, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ; Nealon, 26 N.Y.3d at 160–161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). Although meaningful notice and a meaningful response had each been deemed a "core responsibility" under O'Rama, the Court began treating the errors quite differently—one required preservation, while the other did not.

Those decisions were harshly criticized for skirting O'Rama 's mandate. The dissenters in both cases lamented the Court's unprincipled and haphazard abandonment of one of O'Rama 's two core tenets (see Mack, 27 N.Y.3d at 545–547, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [Rivera, J., dissenting]; Nealon, 26 N.Y.3d at 164, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [Lippman, Ch. J., dissenting] ). Indeed, not long before, this Court had reinforced that "[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

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in the absence of timely objection" ( People v. Alcide, 21 N.Y.3d 687, 692, 976 N.Y.S.2d 432, 998 N.E.2d 1056 [2013] [emphasis added]; see also People v. Taylor, 26 N.Y.3d 217, 228, 22 N.Y.S.3d 140, 43 N.E.3d 350 [2015] [Rivera, J., concurring] [noting that the trial court's "failure to fulfill these responsibilities constitutes a mode of proceedings error which does not require preservation"] ). Following our lead, the Appellate Divisions were, prior to Nealon and Mack, consistently excusing preservation failures wherever the trial record did not demonstrate compliance with either of the court's two duties: the duty to provide meaningful notice of a jury note, or the duty to respond (see People v. Mack, 117 A.D.3d 1450, 1451, 984 N.Y.S.2d 768 [1st Dept. 2014] ; People v. Nealon, 116 A.D.3d 886, 887, 985 N.Y.S.2d 91 [2d Dept. 2014] ; see also People v....