People v. Jamel Walston


AD2 order dated December 26, 2012, affirming judgment of conviction for first-degree manslaughter. Decision below: 101 AD3d 1156, 956 NYS2d 543. Smith, J., granted leave April 17, 2013.

ISSUES PRESENTED: (1) O’Rama: Whether the court erred in failing to inform counsel of the exact contents of a jury note. (2) Whether defense counsel was ineffective for failing to request the lesser included offense of second-degree manslaughter. (Assigned counsel: Kendra Hutchinson and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)

Factual Background: The defendant was on trial for second-degree murder (intentional) and second-degree weapon possession (no intent needed).  The court also submitted first-degree manslaughter as a lesser included offense.  During deliberations, the jury submitted a note asking for reinstruction “on Manslaughter/Murder in the second degree-(Intent).”  The judge advised counsel of the contents of the note but omitted any mention of the jury’s reference to “intent.”  The court gave a standard re-instruction on murder and manslaughter; the jury found defendant guilty of first-degree manslaughter and second-degree weapon possession.  The court’s failure to read the full contents of the jury’s note to counsel (or show the note to counsel) violated People v. O’Rama (78 N.Y.2d 270).  Ordinarily an O’Rama violation is a “mode of proceedings” error not requiring preservation, but the Second Department held the issue unpreserved nonetheless.


Held: Since there was no record indication that the court shared the exact contents of the note with counsel, this O’Rama violation constituted a mode of proceedings error requiring reversal of the first-degree manslaughter conviction.  Since the error did not go to the weapon count, that conviction was not reversed; however, the Court remanded for resentencing on that count, since the sentence would have been influenced by the guilty verdict on manslaughter.

Judge Smith (writing for himself and Judge Abdus-Salaam) concurred. Judge Smith agreed that the result was governed by O’Rama’s mode of proceedings holding, but “mused” whether O’Rama’s mode-of-proceedings aspect should be overruled – an argument that the People did not make in this case.


CAL Observes: Judge Smith wrote that there was no reason why defense counsel could not have simply asked the judge to see the note, thus obviating the error.  Moreover, he speculated, the O’Rama rule encourages defense lawyers to sandbag the trial court – sitting by in the knowledge that error is being committed, secure in knowing that the conviction will be reversed on appeal if there is a guilty verdict. Experienced in-the-trenches criminal defense lawyers will see two flaws in Judge Smith’s reasoning: (1) It would be the rare criminal defense lawyer who would have the temerity to ask a judge to see a jury note after the trial judge had just read or paraphrased it (with the implicit assurance that it had done so accurately).  It is true that defense lawyers must sometimes stand up to judges while preserving issues; it is quite something else for a trial defense lawyer to imply that he doubts the judge’s integrity in advising him of the contents of a note.  (2) The idea that criminal defense trial lawyers will sit by while a judge commits a mode-of-proceedings error, so that an appellate court will reverse if there is a conviction, is an urban legend, believed by some prosecutors and even some judges (apparently), but not having any currency amongst veteran criminal defense attorneys.  For one thing, during trial defense attorneys are fixated on getting an acquittal, not planting the seeds for an appellate reversal.  (We appellate types actually wish that this wasn’t so true.)  Secondly, unlike defense appellate lawyers, defense trial lawyers have no idea of the meaning of the term “mode of proceedings,” let alone the vagaries of the O’Rama  preservation rule (which sometimes requires preservation and sometimes doesn’t).  Trial lawyers may fail to preserve issues through ignorance, lack of skill, or simply because New York’s preservation rules are too convoluted for mere-mortals to abide by, but keeping quiet in order to plant the seed of a sure-fire reversal – another non-existent animal – is not in the criminal defense trial lawyer’s manual.  Sorry to disabuse.