People v. Pamela Hanson
AD2 order dated November 14, 2012, affirming judgment of conviction. Decision below: 100 AD3d 771, 953 NYS2d 684. Smith, J., granted leave July 10, 2013.
ISSUE PRESENTED: Whether the Second Department erred in holding that, because the record contained no evidence that two notes from the deliberating jury were received by the trial judge, the defendant could not argue on appeal that the trial court erred in not disclosing and responding to those two notes. (Assigned counsel: Steven Bernhard & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
Issues Before the Court:
Hanson: Whether the Second Department erred in holding that, because the record contained no evidence that two notes from the deliberating jury were received by the trial judge, the defendant could not argue on appeal that the trial court erred in not disclosing and responding to those two notes.
Silva: Whether the First Department erred in holding that, because a jury note – marked as a court exhibit – did not result in a response by the court or any other mention in the transcript, the defendant could not argue on appeal that the trial court erred in not disclosing and responding to that note.
O’Rama Issue Background:
Before answering a note from deliberating jurors, the court must give “notice to both the people and counsel for the defendant.” CPL § 310.30. Emphasizing the importance of counsel receiving notice of the “specific” and “precise” inquiry posed of the jury, People v. O’Rama, 78 N.Y.2d 270, 277 (1991), the Court of Appeals has endorsed the following procedure:
[W]henever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. . . . After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made.
The failure to provide meaningful notice to counsel is “inherently prejudicial,” and such an error is reviewable on appeal as a matter of law as a “mode-of-proceedings” violation, i.e., even in the absence of an objection. People v. Tabb, 13 N.Y.3d 852 (2009). However, if the judge reads the note verbatim in the courtroom in the jury’s presence, an objection to lack of prior specific notice is necessary. People v. Williams, 21 N.Y.3d 932, 934 (2013). Cf. People v. Walston, 23 N.Y.3d 986 (2014) (A mode-of-proceedings error occurred where the judge omitted the word “intent,” written in parenthesis next to the jurors’ request for a re-charge on manslaughter and murder.)
End of Presumption of Regularity (all concur except Smith who dissented in Hanson and concurred on other grounds in Silva and Abdus-Salaam, who took no part)
The District Attorneys has long relied on “the presumption of regularity” to require defendants to establish that the judge did not follow the O’Rama protocol. See People v. Cruz, 14 N.Y.3d 814 (2010) (Defendant rebutted presumption of regularity “by substantial evidence;” at reconstruction hearing, the trial judge stated that he never saw the note, that he did not reconvene with counsel, and that he did not know if the requested written statement, which was not an exhibit, had actually been shown to the jury.)
In Hanson, the jury sent a series of notes to the court during deliberations, and the second note, issued at 1:14 PM, requested “First Det. Statement.” The third note, sent at 1:21 PM, read: “To clear up the first note, we would like to hear Det. Moss [sic] direct examination.” The jury’s last note, bearing the time 2:12 PM, informed the court that the jury had a verdict. The transcript did not show that anyone was aware of the second and third notes. There is no discussion or response to the notes though they were marked as court exhibits.
In Silva, the jury sent a note asking for “the wire transcript mentioning the gun” and “the judges [sic] instructions on count #3 - weapon possession.” The note was marked as court exhibit two but nothing in the record affirmatively demonstrates that the court informed the parties about the jury’s inquiry. About one hour later, the jury sent another note, marked as court exhibit three, stating that a verdict had been reached.
The Court of Appeals rejected the applicability of “presumption of regularity”and held that “the record 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 Court granted only partial relief in Silva, and did not order a new trial on all counts. The jury’s note only inquired on matters related to the gun possession charge. The Court affirmed Silva’s first-degree drug possession conviction.
Also worth noting are three more recent O'Rama leave grants:
In August, Judge Graffeo granted leave to the District Attorney in People v. Kenneth Nealon, where the issue is:
(1) 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.
Leave has also been granted to the People in People v. Sydoriak, 120 A.D.3d 840 (2d Dept. 2014) and People v. Morris, 120 A.D.3d 835 (2d Dept. 2014). The People are challenging the Appellate Division’s mode--of-proceedings findings in both cases. The Appellate Division excused counsels’ failure to object because the records did not establish that counsel had “knowledge of the substance of the court’s intended response” before the court responded to the notes.
All three cases are being handled by Appellate Advocates.