Issue before the Court: Does an O’Rama violation still result in a mode of proceedings error that does not require preservation, consistent with the longstanding precedent of the Court of Appeals?   

Held: Yes.  O’Rama lives. 

In People v. O’Rama, 78 N.Y.2d 270 (1991) and its progeny, the Court of Appeals has repeatedly held that the court’s failure to provide notice of the specific contents of a jury note requires reversal regardless of preservation. In this case (CAL represented one of the co-defendants), the prosecutor asked the Court of Appeals to overrule this longstanding precedent.

The Court didn’t buy it. In a decision written by Judge Rivera (joined by Judges Fahey, Stein, and Wilson), the Court re-affirmed that while some jury-note errors (e.g., the failure to respond to a note), require preservation, the failure to provide notice of the actual specific contents of a jury note does not. Six judges ultimately agreed with this determination (Judge Garcia was the only Judge who would have overruled O’Rama).

The Court also reaffirmed its holding in People v Silva (2014) and People v. Walston (2014) that appellate courts cannot speculate that counsel may have received notice of the note’s contents “off the record,” thus warranting a “reconstruction hearing.” Instead, the majority confirmed that if the record does not establish that counsel had notice of the note’s contents, the remedy is reversal.

Three judges dissented (the Chief Judge, Judge Feinman, and Judge Garcia) from this reconstruction-hearing holding, arguing that when the record leaves open the possibility that counsel received notice off the record, a reconstruction hearing is permissible. 

CAL Observes: Judge Garcia’s separate dissent, for the reasons stated in his dissent in People v. Morrison (another O’Rama case, argued and decided the same day as Nonni/Parker), bears mention.  Judge Garcia argued that that preservation is required when counsel knows a note “exists.” In doing so, Judge Garcia imagined a mischievous—and fictional—defense lawyer who intentionally declines to learn a note’s contents in order to pocket an appellate claim. While some appellate judges apparently believe that these phantom lawyers exist, lawyers in the trenches tend to chuckle at such suggestions.

Judge Garcia also supported a reconstruction hearing, noting that “in People v. Cruz [2010], we heard an appeal on an O’Rama issue after a reconstruction hearing had been held—a procedure that the presiding Chief Judge [Lippman] characterized as a ‘very useful exercise.’” Chief Judge Lippman’s sarcasm was clearly lost on Judge Garcia:

At the subsequently held ‘reconstruction hearing’ (really just a conversation between the court and counsel with some testimony from the court reporter), no one had any independent recollection of the events at issue, which had transpired some four years before. The court was of the view that the trial had been accurately recorded and, although he had no memory at all of the events in question, he thought it probable that he never received the jury note. . . . The record of this very useful exercise in hand, the Appellate Division resumed its consideration of defendant’s appeal. People v. Cruz (Lippman, C.J., concurring).

Fortunately though, the Chief’s wise warning wasn’t ignored by Judge Rivera, whose majority opinion clearly lays to rest any theory that reconstruction hearings are available in the O’Rama context. In closing the reconstruction hearing door once and for all, the Court of Appeals has enforced the basic rule that is hammered into lawyers’ heads the day they first appear in court: make a record.