People v. Silva, s. 208, 209
| Decision Date | 24 November 2014 |
| Docket Number | Nos. 208, 209,s. 208, 209 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Julian SILVA, Appellant. The People of the State of New York, Respondent, v. Pamela Hanson, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
John R. Lewis, Sleepy Hollow, for appellant in the first above-entitled action.
Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Hilary Hassler of counsel), for respondent in the first above-entitled action.
Lynn W.L. Fahey, Appellate Advocates, New York City (Steven R. Bernhard of counsel), for appellant in the second above-entitled action.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Rhea A. Grob of counsel), for respondent in the second above-entitled action.
GRAFFEO
, J.
In these cases, we must decide whether a mode of proceedings error occurs under People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991)
and its progeny when a court accepts a verdict without affirmatively acknowledging or responding to a jury's substantive request for information during deliberations.
I
People v. Julian Silva
Defendant Julian Silva was charged with weapon possession and various drug offenses, including criminal sale of a controlled substance in the first degree. During the morning of the second day of deliberations, the jury sent a note asking for “the wire transcript mentioning the gun” and the “judges [sic] instructions on count # 3—weapon possession.” The note was marked as court exhibit 2, but nothing in the record affirmatively demonstrates that the court informed the parties about the jury's inquiry. About one hour later, the jury sent another note, marked as court exhibit 3, stating that a verdict had been reached. The jurors were brought to the courtroom, the verdict was announced and defendant was found guilty of first-degree drug sale, attempted third-degree weapon possession and other offenses.
On appeal to the Appellate Division, defendant claimed that the court's handling of the note marked as court exhibit 2 constituted a mode of proceedings error under O'Rama. Because it was “impossible to determine if the note was presented to the judge or if the jury reached a verdict without the judge being
aware they had submitted the note,” the Appellate Division rejected defendant's assertion and affirmed (99 A.D.3d 522, 523, 951 N.Y.S.2d 867 [1st Dept.2012]
). A Judge of this Court granted defendant leave to appeal (21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013] ).
People v. Pamela Hanson
Defendant Pamela Hanson was charged with murdering an acquaintance. The jury sent a series of notes to the court during deliberations, and the second note, issued at 1:05 p.m., was marked as court exhibit 4 and requested “First Det. Statement.” The third note, sent at 1:21 p.m. and marked as court exhibit 5, read: “To clear up the first note, we would like to hear Det. Moss [sic] direct examination.” The jury's fourth and final note, bearing the time 2:12 p.m. and marked court exhibit 6, informed the court that the jury had arrived at a verdict. The transcript does not show that the court was aware of the second or third jury note, or that the notes were shared with the parties before the jury convicted defendant of second-degree murder and fourth-degree grand larceny.
The Appellate Division affirmed (100 A.D.3d 771, 953 N.Y.S.2d 684 [2d Dept.2012]
) and a Judge of this Court granted defendant leave to appeal (21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013]
).
Defendants assert that the trial courts committed mode of proceedings errors under the O'Rama rule by accepting the verdicts without acknowledging or responding to jury notes that requested specific information for use in jury deliberations. The People submit that the presumption of regularity permits an inference that the trial courts informed defense counsel about the contents of the jury notes and that O'Rama does not obligate a trial court to make a record documenting that action. In defendant Hanson's case, the People alternatively ask us to overrule our precedent that establishes an O'Rama violation as a mode of proceedings error.
CPL 310.30
is the primary statutory authority governing the handling of requests for information from a deliberating jury. It requires trial courts to give “notice to both the people and counsel for the defendant” before responding to a note from a deliberating jury (CPL 310.30 ; see e.g.
People v. Alcide, 21 N.Y.3d 687, 691–692, 976 N.Y.S.2d 432, 998 N.E.2d 1056 [2013] ). In O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), we carefully explained that a court's “core responsibility under the statute is both to give meaningful notice to counsel of the
specific content of the jurors' request—in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury” (People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007]
, citing People v. O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). In furtherance of these requirements, a court must read a jury note “verbatim” so that the parties have “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 ).
We outlined in O'Rama the step-by-step procedure that should be followed when a deliberating jury requests information (see 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189
). First, a note should be marked as a court exhibit and read into the record in the presence of the attorneys before the jury is returned to the courtroom. Second, the judge should then allow counsel to comment and recommend responses to the jury's inquiry. Third, the judge should articulate the substance of its proposed response and allow the attorneys to offer modifications before the jury returns to the courtroom. And, fourth, the judge should read the note to the jury to correct any inaccuracies before providing “such requested information or instruction as the court deems proper” (CPL 310.30 ).
As a general rule, errors in criminal cases are reviewable on appeal only if they are adequately preserved by the appellant (see CPL 470.05[2]
). A “ ‘very narrow’ exception” to the preservation rule exists for a “limited class” of so-called “mode of proceedings” errors that “ ‘go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted’ ” (People v. Rivera, 23 N.Y.3d 827, 831, 993 N.Y.S.2d 656, 18 N.E.3d 367 [2014], quoting People v. Kelly, 5 N.Y.3d 116, 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179 [2005] ). A trial court's failure to fulfill the “core responsibility” under O'Rama is treated as a mode of proceedings error (see
People v. Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). O'Rama, however, was not designed “to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel's input is most meaningful” (People v. Alcide, 21 N.Y.3d at 692, 976 N.Y.S.2d 432, 998 N.E.2d 1056
).
Although not every violation of CPL 310.30
is immune from normal preservation principles (see e.g.
People v. Mays, 20 N.Y.3d 969, 971, 959 N.Y.S.2d 119, 982 N.E.2d 1252 [2012] ; People v. Ippolito, 20 N.Y.3d 615, 625, 964 N.Y.S.2d 499, 987 N.E.2d 276 [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. Kadarko, 14 N.Y.3d 426, 429–430, 902 N.Y.S.2d 828, 928 N.E.2d 1025 [2010] ), a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL 310.30
and qualifies as a mode of proceedings error (see e.g. People v. Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990
). The record therefore must indicate compliance with adequate procedures under O'Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled (see
People v. Walston, 23 N.Y.3d 986, 990, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] ). The “presumption of regularity” (see e.g.
People v. Velasquez, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ) cannot salvage an O'Rama error of this nature (see
People v. Tabb, 13 N.Y.3d 852, 852, 891 N.Y.S.2d 686, 920 N.E.2d 90 [2009] ) and this is not the first time—contrary to our dissenting colleague's belief—that a judge's apparent unawareness of a jury note or unresponsiveness has led to a new trial (see
People v. Cruz, 14 N.Y.3d 814, 816, 901 N.Y.S.2d 122, 927 N.E.2d 542 [2010] ).1 And, somewhat ironically, the dissent recognizes that the errors in these appeals were so fundamental that they are exempt from the preservation rule (see dissenting op. at 302, 998 N.Y.S.2d at 159, 22 N.E.3d at 1027).
The People urge us to disavow our holding in Walston, 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 (2014)
that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama. We recently discussed the principles underlying the doctrine of stare decisis (see
People v. Peque, 22 N.Y.3d 168, 194, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert. denied sub nom.
Thomas v. New York, 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ) and it is sufficient for us to reiterate that a “compelling justification” is required to cast aside precedent (id.; see
People v. Lopez, 16 N.Y.3d 375, 384 n. 5, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [2011] ).
Such a circumstance is absent in these appeals. Walston, 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 (2014)
broke no new ground—it built upon prior law (see
People v. Tabb, 13 N.Y.3d at 852, 891 N.Y.S.2d 686, 920 N.E.2d 90 ) and advanced the two requirements that ...
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