AD2 order dated April 16, 2014, reversing judgment of conviction and ordering a new trial. Decision below: 116 AD3d 886, 985 NYS2d 91. Graffeo, J., granted leave to People August 15, 2014. Argued September 10, 2015.

ISSUES PRESENTED: (1) O’Rama; whether the trial court committed a mode of proceedings error when, according to the original trial record, it read the contents of three jury notes requesting charge clarifications for the first time in front of the jury and immediately responded. (2) Whether the Appellate Division properly refused to consider the People’s “resettled” trial record. (Assigned counsel: Kendra Hutchinson and Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue Before the Court:

 

When the transcript did not indicate that the judge followed the proper procedure for answering jury notes – that is, the court did not allow counsel to read the note before the jury was recalled to the courtroom – but, later, the court did repeat the note verbatim in open court, was the error  reviewable on appeal, even without a contemporaneous objection, as a “mode of proceedings error.” The Appellate Division had excused counsel’s failure to object because the record did not establish that counsel had “knowledge of the substance of the court’s intended response,” before the court  answered the jury’s question. 

 

Holding: 

 

Where “counsel has meaningful notice of a substantive jury note because the court has read the precise content of the note into the record in the presence of counsel, defendant, and the jury, the court’s failure to discuss the note with counsel before recalling the jury is not a mode of proceedings error. Counsel is required to object to the court’s procedure to preserve any such error for appellate review.” 

 

CAL Observes: 

 

Last year, the Court reversed in two jury note cases, People v. Silva and People v. Hanson, 24 N.Y.3d 294 (2014), holding that the record must affirmatively show that the judge followed the proper procedure for answering a jury note and appellate courts should not affirm by using a “presumption of correctness.” Jury notes continued to be a hot issue in the Court of Appeals this year. Leave was granted on at least five  jury note cases  (Taylor, Mendez, Sydoriak,  Mack, and Morris).  

 

While the 4-2 majority affirmed in Nealon and, for the same reasons, in People v. Sydoriak, 26 N.Y.3d 1015 (2015), they could not reach a majority decision in People v. Mack, 26 N.Y.3d 998 (2014), and put the case over for additional oral argument - presumably, when the Court is back at its full roster of 7 judges. In Mack, 117 A.D.3d 1450 (4th Dept. 2014), the Appellate Division reversed because the judge took the jury’s verdict without first responding to two prior notes, asking for further legal instruction and a readback of testimony. The Fourth Department held that the court’s failure to provide a meaningful response to the jury notes was a mode-of-proceedings error and reversed despite defense counsel’s failure to object.

 

Also still undecided is People v. Morris, 120 A.D.3d 835 (2d Dept. 2014), lv granted 24 N.Y.3d 1045 (2014), which the Court has selected for review without oral argument (“SSM”). In Morris, the Second Department also found a judge’s failure to follow the jury note protocol to be a mode-of-proceedings error.