People v. O'Rama

Decision Date06 June 1991
Citation78 N.Y.2d 270,579 N.E.2d 189,574 N.Y.S.2d 159
Parties, 579 N.E.2d 189 The PEOPLE of the State of New York, Respondent, v. John O'RAMA, Appellant.
CourtNew York Court of Appeals Court of Appeals

Elaine Jackson Stack, Mineola, for appellant.

Denis Dillon, Dist. Atty. (Lawrence J. Schwarz, Mineola, and Bruce E. Whitney, Oceanside, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Following a jury trial, defendant was convicted of driving while under the influence of alcohol as a felony (see, Vehicle and Traffic Law § 1192[3]; § 1193[1][c]. His appeal requires us to decide the extent to which the specific contents of jurors' notes must be disclosed to the defendant and defense counsel before a response is given. In the circumstances of this case, where the juror's note was substantive and referred to difficulties the jury was having in reaching a verdict, we hold that the trial court committed reversible error when it failed to disclose the note's contents before responding with an Allen charge.

The incident leading to defendant's arrest began when the automobile defendant was driving hit another automobile that was traveling in the same direction. Defendant was arrested after the police officer who responded to the accident scene concluded from defendant's behavior that he was intoxicated. At the police station, defendant refused to take a breathalyzer test, 1 but consented to participate in a number of performance tests designed to measure the degree to which his motor skills, balance and reflexes had been impaired.

The People's trial evidence consisted principally of the results of these performance tests, as well as the arresting officer's testimony about defendant's behavior at the accident scene and his postarrest refusal to take a breathalyzer test. The defense concentrated its efforts on impeaching the police officer's expertise and challenging the reliability of his conclusions as to defendant's sobriety. The defense also called a longtime acquaintance of defendant's family to the witness stand and elicited the fact that defendant had suffered severe back and leg injuries in a prior automobile accident.

After approximately five hours of deliberations and a recharge on the meaning of "intoxication," the jury sent out a note informing the Judge that it was "stalemated" and wished to know "how [to] proceed." The court responded by sending the jury to dinner and to a hotel for the night. On the following day, the jury deliberated at length and made several requests for evidence and instruction, but was still unable to reach a verdict. On the third day of deliberations, the court received another deadlock note in which the foreman stated "I don't see us ever reaching a unanimous verdict." At that point, the court gave its first Allen charge (see, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528).

Before the jury returned to resume deliberations, one of the jurors asked permission to speak to the Judge but was told to put his query in the form of a note. After receiving this juror's note, the Judge brought the jury and counsel back into the courtroom and had the note marked as a court exhibit. The Judge declined to read the note aloud, however, because, in his view, reading it "would [not] serve any particular purpose * * * at this point." Instead, the Judge summarized the "substance" of the note's contents, stating that it "indicates that there are continued disagreements among the jurors." After questioning five of the jurors and eliciting from four of them that a unanimous verdict was still possible, the Judge "implor[ed]" the jurors to try again and administered another Allen charge. When the jury was ushered out of the courtroom, the Judge elaborated upon his reasons for withholding the precise contents of the individual juror's note, stating that he did not read it because "it indicate[d w]hat the present posture is as far as votes". Defense counsel then unsuccessfully sought disclosure of the note's contents. 2

The jury deliberated for the remainder of the afternoon, returning to the courtroom for one more testimonial readback. At 5:08 p.m., the jury brought in its guilty verdict. Defendant was subsequently sentenced to a one-to-three-year term of imprisonment. He now appeals, by permission of a Judge of this Court, from an order of the Appellate Division, Second Department, which affirmed the judgment of conviction. The primary issue he raises on this appeal is whether the trial court's actions in relation to the individual juror's note constitute reversible error.

We begin our analysis of this issue with CPL 310.30, which provides that a deliberating jury may request additional information or instruction "with respect to any * * * matter pertinent to [its] consideration of the case." The statute further provides that "[u]pon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant * * * must give such requested information or instruction as the court deems proper" (emphasis supplied). CPL 310.30 thus imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond. It has been held that the latter duty requires the court to give a response that is "meaningful" (see, e.g., People v. Malloy, 55 N.Y.2d 296, 301, 449 N.Y.S.2d 168, 434 N.E.2d 237; People v. Gonzalez, 293 N.Y. 259, 262, 56 N.E.2d 574). We have not, however, previously addressed the separate, albeit related, question raised in this appeal--i.e., the scope of the court's CPL 310.30 duty to provide counsel with "notice."

The People have asked us to hold that the notice provision of the statute requires only that the court inform counsel of the existence of a juror inquiry and, perhaps convey the inquiry's basic substance. Thus, the People argue, the court's obligation was satisfied here because counsel knew that a note had been sent out of the jury room and was advised that, in substance, it concerned the jurors' "continu[ing] disagreements". We cannot agree, however, that the statutory mandate should be read so narrowly.

The requirement that "notice" be given to counsel is not a mere formality or a procedural device designed only to ensure counsel's presence in the courtroom when the court gives its response to the jurors' request for information or instruction (see generally, People v. Ramsey, 40 A.D.2d 837, 838, 337 N.Y.S.2d 332; People v. Merrill, 286 A.D. 307, 143 N.Y.S.2d 376). While that is undoubtedly one of the statute's purposes, an equally important purpose is to ensure that counsel has the opportunity to be heard before the response is given (see, Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-95, 45 L.Ed.2d 1; United States v. Ronder, 639 F.2d 931, 934 (2nd Cir.); United States v. Robinson, 560 F.2d 507, 516 (2nd Cir.) [en banc], cert. denied 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496). Such an opportunity is essential to counsel's ability to represent the client's best interests and, further, to ensure the protection of the client's constitutional and statutory rights at these critical postsubmission proceedings (see, People v. Ciaccio, 47 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347 [supplemental instructions, which are given in direct response to the jurors' own questions, "may well be determinative of the outcome"]. Thus, just as CPL 310.30's requirement that juror inquiries be answered mandates a "meaningful" response (see, People v. Malloy, supra, 55 N.Y.2d at 301, 449 N.Y.S.2d 168, 434 N.E.2d 237), so too does that statute's "notice" requirement mandate notice that is meaningful.

We conclude that "meaningful" notice in this context means notice of the actual specific content of the jurors' request. Manifestly, counsel cannot participate effectively or adequately protect the defendant's rights if this specific information is not given. Indeed, the precise language and tone of the juror note may be critical to counsel's analysis of the situation in the jury room and ability to frame intelligent suggestions for the fairest and least prejudicial response. Concomitantly, the Trial Judge's summary of the "substance" of an inquiry cannot serve as a fair substitute for defense counsel's own perusal of the communication, since it is defense counsel who is best equipped and most motivated to evaluate the inquiry and the proper responses in light of the defendant's interests (cf., People v. Jones, 70 N.Y.2d 547, 550, 523 N.Y.S.2d 53, 517 N.E.2d 865; People v. Perez, 65 N.Y.2d 154, 158, 490 N.Y.S.2d 747, 480 N.E.2d 361).

We further hold that, in most cases, this requirement of meaningful notice is best served by following the procedure that was outlined in United States v. Ronder, 639 F.2d 931, 934, supra; accord, People v. Miller, 163 A.D.2d 491, 558 N.Y.S.2d 591. Under this procedure, jurors' inquiries must generally be submitted in writing, since, as the trial court in this case recognized, 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...

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