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Court’s Failure to Share Entire Contents of Note from Jury Constituted a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial court’s failure to share the entire contents of a note from the jury was a mode of proceedings error requiring reversal:

CPL 310.30 requires that trial courts give notice to the People and the defense before responding to a note from a deliberating jury … . 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'” … . Meaningful notice means notice of the “actual specific content of the jurors’ request” …, and “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'” … .

“Although not every violation of CPL 310.30 is immune from normal preservation principles, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error,” which does not require preservation … .

Here, the trial court’s failure to share the entire contents of a substantive note from the jury constituted a mode of proceedings error requiring reversal … . People v Cotton, 2015 NY Slip Op 02780, 2nd Dept 4-1-15

 

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Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

Failure to Make a Finding of Necessity Re: Restraining Defendant at Trial with a Stun Belt Is Not a Mode of Proceedings Error—Error Must Be Preserved by Objection (No Objection Here)

The Court of Appeals determined that the trial court’s failure to make a finding of necessity re: the defendant’s wearing a stun belt (a restraint device) at trial was not a mode of proceedings error.  Therefore the error must be preserved by objection.  Here the defendant consented to the restraint.  People v Cooke, 2015 NY Slip Op 01557, CtApp 2-24-15

 

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Indictment Rendered Duplicitous By Trial Evidence Is Not a Mode of Proceedings Error—The Error Must Therefore Be Preserved by an Objection to Be Raised on Appeal

Resolving a split among the appellate division departments, the Court of Appeals determined that an indictment rendered duplicitous by the trial evidence is not a “mode of proceedings” error and the error must therefore be preserved in order to raise it on appeal. The indictment charged one count of attempted murder.  But the evidence presented two different occurrences to which the single count could apply:

The [1st] and [2nd] Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review … . The [4th] Department, however, has held that duplicity created by trial evidence violates a defendant’s right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant’s right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary … .

As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied — US &mdash, 133 S Ct 1736 [2013]), in relation to the constitutional right to a public trial, “preservation of public trial claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors” … . Therefore, defendant’s argument that he need not preserve an issue that has constitutional significance is unconvincing.

Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. People v Allen, 2014 NY Slip Op 08222, CtApp 11-25-14

 

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The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a “Mode of Proceedings” Error

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O’Rama, 88 NY2d 270) constituted “mode of proceedings” errors requiring reversal in the absence of preservation:

Although not every violation of CPL 310.30 is immune from normal preservation principles …, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error … . 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 … . The “presumption of regularity” … cannot salvage an … error of this nature … . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14

 

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Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error

The Third Department determined that the People’s conditioning of a plea bargain on the defendant’s withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:

…[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the “mode of proceedings” exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is “inherently coercive” (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate “rights of a constitutional dimension that go to the very heart of the process” … . Where, as in Blakley, the People condition a plea offer on the defendant’s waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined … .

Here, the People expressly conditioned the plea offer on defendant’s withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed … . This is the type of prosecutorial bartering expressly prohibited as “inherently coercive” in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver … . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14

 

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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

Unclear Record Re: Whether Defense Counsel Was Apprised of the Complete Contents of a Jury-Request for Instructions Combined with the Judge’s Failure to Address One Aspect of the Request Constituted a “Mode of Proceedings” Error

The Court of Appeals determined the trial judge's response to a note from the jury was a mode of proceedings error requiring the vacation of the convictions related to the note.  The note asked for the judge's directions on “Manslaughter/Murder in the Second Degree-(Intent).”  The judge did not re-read the expanded “intent” charge and the record does not indicate defense counsel was notified of the “intent” aspect of the jury note:

Here, the trial court failed to meet its core responsibilities with regard to the note. Although there is record evidence that defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel. Rather, the record reflects that the court paraphrased the note for counsel and the jury, but in each instance it omitted any reference to the note's “intent” language, hardly “a fair substitute for defense counsel's own perusal of the communication” (O'Rama, 78 NY2d at 277). Although the note is ambiguous concerning whether the jury was requesting an expanded definition of the intent element or was merely asking for a read back of the homicide charges which included a definition of intent, this only substantiates defendant's argument that the court failed to meet its core responsibilities of providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note — as it is in this case — preservation is not required … . Where a trial transcript does not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to (id.). People v Walston, 2014 NY Slip Op 04229, CtApp 6-12-14

 

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Judge’s Speaking to a Juror During Deliberations, With Defense Counsel’s Permission, Outside the Presence of the Defendant and Counsel, Was a Mode of Proceedings Error Requiring Reversal

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the judge's conducting a transcribed colloquy with a juror during deliberations, outside the presence of counsel and the defendant, was a mode of proceedings error requiring reversal.  Counsel were informed that a juror wished to talk to the judge and agreed that the judge could do so their absence. Counsel and the defendant were subsequently apprised of the substance of the colloquy and given the opportunity to read the transcript. Defense counsel did not raise an objection:

A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury … . This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30…). We have consistently held that a defendant's absence during non-ministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used.  People v Rivera, 2014 NY Slip Op 04115, CtApp 6-10-14

 

Mischaracterization of a Jury Note Required Reversal

The Second Department determined that the trial court’s mischaracterization of a jury note required reversal:

The Supreme Court mischaracterized the contents of the note to counsel as merely requesting a readback of the elements of the charged offenses rather than as indicating the jury’s apparent erroneous impression that proof of a single element of each crime was sufficient to render a guilty verdict … . In thus mischaracterizing the note, the Supreme Court did not afford defense counsel the opportunity to participate in the formulation of the court’s response to the jury’s confusion. “Since defense counsel was not afforded the opportunity to provide suggestions, [s]he was prevented from participating meaningfully at this critical stage of the proceedings” … . “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v Tabb, 13 NY3d 852, 853), despite defense counsel’s failure to object to the court’s treatment of the jury note … . Furthermore, meaningful notice of the contents of a jury note must take place on the record … . Accordingly, contrary to the People’s contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful … . People v Giraldo, 2014 NY Slip Op 02309, 2nd Dept 4-2-14

 

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