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Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial

Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:

CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon 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, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial … . People v Roberites, 164.1, 4th Dept 3-28-14

 

Trial Court’s Failure to Properly Characterize the Nature of the Jury’s Request for “Clarification” of Certain Counts Was a Reversible Mode of Proceedings Error

The Second Department determined Supreme Court committed a reversible mode of proceedings error when it mischaracterized the meaning of a jury note.  The note requested clarification of the criminal possession of a weapon counts.  The court explained the note as a request for a readback of the relevant jury instructions:

…[T]he jury requested “clarification on the counts of criminal possession of a weapon in the second degree.” Notwithstanding the foregoing, in the presence of the defendant, counsel, and the jury, the Supreme Court mischaracterized that note as asking “to have read to us the counts of” criminal possession of a weapon in the second degree. In apprising counsel of the contents of that note, the Supreme Court omitted the word “clarification.” The court proceeded to provide the jury with certain legal instructions on the counts of criminal possession of weapon in the second degree. The jury’s request for “clarification” was not a request for a “mere ministerial readback” of the Supreme Court’s charge … . Meaningful notice of a jury’s note “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” … . Under these circumstances, the Supreme Court’s mode of proceedings error requires reversal of the judgment and a new trial (see People v Patterson, 39 NY2d 288, 295-296). People v Thomas, 2014 NY Slip Op 02090, 2nd Dept 3-26-14

 

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No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:

…[I]n Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; …).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings — i.e., a mode of proceedings error for which preservation is not required — defendant’s Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, CtApp 12-12-13

 

Judge’s Failure to Comply with CPL Re: Response to Jury Note Required Reversal

The Second Department held that the trial court’s failure to comply with Criminal Procedure Law 310.10 with respect to responding to a note from the jury concerning accomplice liability required reversal (despite the absence of an objection):

A new trial is required due to the trial court’s failure to meaningfully comply with CPL 310.10. During deliberations, the jury sent four notes to the trial court. The record reflects that, on the fourth occasion, the court did not disclose the contents of the note to the prosecutor and defense counsel until serially reading, and immediately responding to, the questions contained therein in the presence of the jury. All three of the questions in this note concerned the subject of accomplice liability.

The jury’s requests for further explanation of the meaning of accomplice liability within the context of this case required a “substantive response”, rather than a merely “ministerial” one … . As such, the trial court’s failure to afford defense counsel “the opportunity to provide suggestions” … regarding the court’s responses to the jury’s questions constituted “a mode of proceedings error . . . requiring reversal” …, despite defense counsel’s failure to object to the trial court’s handling of the jury’s fourth note … .  People v Gadson, 2013 NY Slip Op 07059, 2nd Dept 10-30-13

 

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Trial Judge’s Participation in Readbacks Not Mode of Proceedings Error

In a full-fledged opinion by Judge Read, the Court of Appeals determined the trial judge’s participation in the readbacks of testimony requested by the jury did not amount to a mode of proceedings error.

…[T]he two jury notes — requests for readbacks of two witnesses’ testimony — were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the readbacks.  If defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so… . * * *

…[W]e agree with the [2nd] Department that, as a general matter, a trial judge should shun engaging in readbacks of testimony.  In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors.

In a case where a trial judge nonetheless elects to participate in a readback (certainly, nothing in CPL 310.30 prohibits it), any error is not of the mode of proceedings variety.  “Not every procedural misstep in a criminal case is a mode of proceedings error”; rather, this narrow exception to the preservation rule is “reserved for the most fundamental flaws,” such as shifting the burden of proof from prosecution to the defense, or delegating a trial judge’s function to a law secretary… . People v Alcide, 143, CtApp 10-10-13

 

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Mode of Proceedings Error Re: Jury Note Required Reversal, Molineux Rulings Flawed

The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant.  In addition, the Fourth Department found fault with the procedure used by the trial court to address the admission into evidence of defendant’s prior bad acts, as well as some of the rulings that such evidence was admissible:

We agree with defendant that County Court committed a mode of proceedings error when it responded to a jury note off the record, in the jury room, and outside the presence of defendant, with no indication that defendant had waived his right to be present.  CPL 310.30 provides that, upon receiving a request for further instruction or information from the jury during deliberations, “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, must give such requested information or instruction as the court deems proper.”  It is beyond cavil that “[a] defendant has a fundamental right to be present at all material stages of a trial . . . [and] CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal” … .  The court properly read the jury note on the record in the presence of defendant, defense counsel, and the prosecutor, and it then obtained a clear stipulation from both attorneys concerning the accuracy of its intended response to the jury’s request for information.  We nevertheless conclude that the court committed reversible error by subsequently instructing the jury off the record, in the jury room, and outside the presence of defendant (see CPL 310.30…).

Because there must be a retrial, we deem it appropriate to address defendant’s contention that the court abused its discretion by permitting testimony concerning defendant’s prior bad acts in the days, months, and years preceding the subject arson.  “[A] defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264) or to a pretrial hearing on the admissibility of such evidence” ….  Nevertheless, “a prosecutor seeking to introduce Molineux evidence ‘should ask for a ruling out of the presence of the jury’ . . . and . . . any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, ‘just before the witness testifies’ ” … .

Here, that procedure was not followed.  Instead, the court improperly afforded defense counsel a standing objection with respect to testimony concerning defendant’s prior bad acts while affording the prosecutor the opportunity to ask one of the victims of the arson, who was defendant’s neighbor, about defendant’s prior bad acts over a period as long as 10 years before the arson.  It was particularly improper to allow that witness to testify that, as a result of defendant’s prior bad acts, he had concerns about the safety of his children and pets.  “It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged” … .  Although defendant’s bad acts within a few days of the arson could be deemed relevant to such issues as motive and intent, testimony concerning defendant’s bad acts in the preceding weeks, months or years was irrelevant to any issue in the case and only could have prejudiced defendant by suggesting to the jury that he was an erratic and potentially dangerous person who had the propensity to commit the crime at issue … . People v Cornell, 870, 4th Dept 10-4-13

 

Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13

 

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Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal

The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:

Early in these proceedings, defendant’s trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel’s law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant’s awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *

While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court’s curtailment of counsel’s argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of “duly served.”  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13

 

Failure to Comply with Statutory Procedure Re: Jury Note Was Not “Mode of Proceedings” Error​

The Court of Appeals determined the trial court’s failure to comply precisely with the requirements of CPL 310.30, and the trial court’s having a court officer tell the jury they could not have a written copy of the jury instructions, did not constitute mode of proceedings errors.  The Court wrote:

We are not persuaded by defendant’s argument that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of People v O’Rama (78 NY2d 270 [1991]; CPL 310.30). Where, as here, defense counsel had notice of a jury note and “failed to object . . . when the error could have been cured,” lack of preservation bars the claim … .

Nor did the court commit a mode of proceedings error by delegating delivery of its answer to a jury question to a court officer. That task was in this context practically ministerial and defense counsel consented to the procedure … . People v Williams, No 112, CtApp, 5-30-13

 

Trial Judge’s Violation of CPL 310.30 in Responding to Jury Note Constituted Reversible “Mode of Proceedings” Error

In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained:

…[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from the preservation requirements and requires reversal … . Accordingly, the judgment must be reversed, and a new trial ordered … . People v Howell, 2013 NY Slip Op 03342, 2nd Dept, 5-8-13

 

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