People v. Nealon

• Decision Date: 27 October 2015
• Docket Number: No. 133.,133.
• Citation: 41 N.E.3d 1130,26 N.Y.3d 152,2015 N.Y. Slip Op. 07781,20 N.Y.S.3d 315
• Parties: The PEOPLE of the State of New York, Appellant, v. Kenneth NEALON, Respondent.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 152
41 N.E.3d 1130
20 N.Y.S.3d 315
2015 N.Y. Slip Op. 07781

The PEOPLE of the State of New York, Appellant
v.
Kenneth NEALON, Respondent.

No. 133.

Court of Appeals of New York.

Oct. 27, 2015.

Richard A. Brown, District Attorney, Kew Gardens (Christopher J. Blira–Koessler, Robert Masters, John M. Castellano and Johnnette Traill of counsel), for appellant.

Lynn W.L. Fahey, Appellate Advocates, New York City (Kendra L. Hutchinson of counsel), for respondent.

OPINION OF THE COURT

FAHEY, J.

41 N.E.3d 1131

On this appeal, we are asked to decide whether a trial court commits a mode of proceedings error when the court fails to discuss a substantive jury note with counsel outside the presence of the jury, but reads the note into the record in the presence of the parties, counsel, and the jury before providing a response. While that departure from the O'Rama procedure (see People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ) is generally error, our precedent compels the conclusion that it is not a mode of proceedings error, and the preservation rule therefore applies.

I.

In September 2007, defendant and an accomplice severely beat another man and stole his cell phones, cash, and other personal items. Defendant was charged with robbery in the first degree, robbery in the second degree, assault in the second degree, and criminal possession of stolen property in the fifth degree. Defendant proceeded to a jury trial in Supreme Court, Queens County. During deliberations, the jury sent three notes to the court that concern us on this appeal.

The first note requested instruction on the “difference between robbery in the [first] degree and [second] degree.” The second note, sent five minutes later, requested reinstruction “on all [four] charges.” An off-the-record sidebar discussion was held before the court marked these notes as court exhibits 2 and 3. The court then recalled the jury into the courtroom, and, in the presence of the parties, counsel, and the jury, read the notes verbatim into the record. The court then provided legal instructions to the jury. Defendant did not object, either to the court's procedure or to its responses to the jury.

The jury's third note stated: “Clarify if [first] count robbery in first degree includes assault and [second] count robbery in second degree does not include assault. Does the degree of injury count towards [first] or [second] degree?” An off-the-record sidebar discussion was held before the court marked the note as court exhibit 4. The court again recalled the jury into the courtroom and read the note into the record in the presence of the parties, counsel

41 N.E.3d 1132

and the jury. The court then provided a response to the jury's inquiry, and after the foreperson stated that the court had answered the jury's question, the jury returned to deliberations. Defendant again did not object, either to the court's procedure or to its response to the jury's note.

The next note sent by the jury stated that the jury had reached a verdict. Defendant was found guilty as charged.

On appeal, the Appellate Division unanimously reversed the judgment (116 A.D.3d 886, 985 N.Y.S.2d 91 [2d Dept.2014] ), holding that “Supreme Court violated the procedure set forth in O'Rama by reading the contents of the jury note for the first time in front of the jury and immediately providing a response” (id. at 887, 985 N.Y.S.2d 91 ). The Court further held that because the record failed to demonstrate that the trial court complied with “its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal ..., despite defense counsel's failure to object to the Supreme Court's handling of the jury's notes” (id. at 888, 985 N.Y.S.2d 91 [internal quotation marks omitted] ).

A Judge of this Court granted the People leave to appeal (23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] ). We now reverse.

II.

CPL 310.30 requires a trial court to provide “notice to both the people and counsel for the defendant” of a substantive jury

inquiry. In O'Rama, we held that the statute requires the court's notice to counsel to be “meaningful,” and we clarified that this “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 ). This is because “counsel cannot participate effectively or adequately protect the defendant's rights if this specific information is not given” (id. ). We further held that, “in most cases,” meaningful notice is best satisfied by adhering to the procedure outlined in United States v. Ronder, 639 F.2d 931, 934 (2d Cir.1981), which procedure is now commonly known as the O'Rama procedure:

“Under this procedure, jurors' inquiries must generally be submitted in writing, since ... written communications are the surest method for affording the court and counsel an adequate opportunity to confer. Further, whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. As the court noted in Ronder, supra, at 934, the trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court's response and the context in which it is being made” (O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 ).

41 N.E.3d 1133

We made clear in O'Rama that a trial court does not satisfy its responsibility to provide counsel with meaningful notice of a substantive jury inquiry by summarizing the substance of the note (see id. at 275, 278–279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). We held that “[a] court can

neither serve the goal of maximizing counsel's participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror's communication” (id. at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). Inasmuch as the trial court's “error in failing to disclose the contents of the note had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial,” we held that the failure to provide meaningful notice to counsel was a mode of proceedings error (id. ).

Since O'Rama was decided, we have continued to hold that when a trial court paraphrases a jury note or omits a key term, thereby failing to provide counsel with meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection (see People v. Walston, 23 N.Y.3d 986, 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, 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ). This rule is sensible because counsel cannot be expected to object to the court's response to the jury or to frame an intelligent suggested response if counsel lacks knowledge of the specific content of a substantive jury note. In other words, a trial court's “failure to read [a] note verbatim deprive[s] counsel of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response” (Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). Thus, “[w]here the record fails to show that defense counsel was apprised of the specific, substantive contents of the note ... preservation is not required” (Walston, 23 N.Y.3d at 990, 991 N.Y.S.2d 24 ).

Here, by contrast, defendant does not dispute that his trial counsel was “apprised of the specific, substantive contents of the note[s],” inasmuch as the court read the precise contents of the notes into the record in the presence of counsel and the jury before responding to the jury (id. ). Nevertheless, the trial court deviated from the O'Rama procedure by failing to first read the notes into the record in the presence of counsel and to provide counsel with “a full opportunity to suggest appropriate responses” outside the presence of the jury (O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). Although off-the-record sidebar discussions were held before the court recalled the jury, “we cannot assume that [an O'Rama error] was remedied at an off-the-record conference” (Walston, 23 N.Y.3d at 990, 991 N.Y.S.2d 24 ). We therefore assume for purposes of this appeal that no discussion of the jury's notes occurred...