| People v Lockley |
| 2011 NY Slip Op 03879 [84 AD3d 836] |
| May 3, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TroyLockley, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, Danielle Hartman, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered October 7, 2008, convicting him of murder in the second degree (two counts), burglaryin the first degree, attempted robbery in the first degree, and criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial.
The defendant, while acting in concert with another, allegedly invaded a home in Bellerose,Queens, and shot the victim, killing him.
At the defendant's trial, during deliberations, the jury sent six notes to the Supreme Court. Onat least five of those occasions, the Supreme Court did not inform defense counsel of the contentsof the notes and allow him the opportunity to suggest an appropriate response before recalling thejury. Instead, the Supreme Court disclosed the notes to the attorneys for the first time in front ofthe jury and immediately provided a formal response. Among other things, the jury asked for anexplanation of the deliberation process, inquiring, "what [should we] base our decision on?" TheSupreme Court responded, "[y]our God given sense and the evidence." In the last twocommunications, the jury indicated that it was deadlocked, and the Supreme Court respondedeach time by giving a truncated Allen instruction (Allen v United States, 164 US492 [1896]). Although defense counsel objected to the substance of the Supreme Court's secondAllen instruction, he never objected to the court's procedure in dealing with the jury'snotes. The jury subsequently returned a verdict convicting the defendant of, among other things,murder in the second degree.
In People v O'Rama (78 NY2d 270 [1991]), the Court of Appeals set forth theprocedure for handling communications from the jury in conformance with CPL 310.30.Whenever a substantive written jury communication is received by the court, it should be markedas a court exhibit and, before the jury is recalled to the courtroom, read verbatim into therecord in the presence of counsel. After the contents [*2]of theinquiry are placed on the record, counsel should be afforded a full opportunity to suggestappropriate responses. The court should then ordinarily apprise counsel of the substance of theresponsive instruction it intends to give so that counsel can seek whatever modifications aredeemed appropriate before the jury is exposed to any potentially harmful information. Once thejury is returned to the courtroom, the communication should be read in open court. Althoughsome deviations from this procedure may be warranted depending on the circumstances, wherethe court fails to fulfill its "core responsibility" under CPL 310.30 by depriving the defendant ofmeaningful notice of the communication or a meaningful opportunity to participate in theformulation of the court's response, the error affects the mode of the proceedings (People v Kisoon, 8 NY3d 129,134-135 [2007]; see People v O'Rama, 78 NY2d at 279-280; People v Surpris, 83AD3d 742 [2011]). Thus, the error need not be preserved, and prejudice manifestlyresults (see People v O'Rama, 78 NY2d at 279-280).
In People v Cook (85 NY2d 928 [1995]), the Court of Appeals was presented with asituation where a defendant was deprived of a meaningful opportunity to participate in the trialcourt's formulation of a response to a juror's note. There, after the court received a note from asingle juror indicating that the jury was at an "emotional impasse" (id. at 930), defensecounsel asked to approach the bench, but he was told that he could not do so and that he shouldnot interrupt the court. Counsel continued to protest, noting that he had not seen the note.Without responding to counsel, the court read the note aloud and then instructed the jury todecide the case on the evidence, without letting emotions enter into its deliberations. After thejury left the courtroom, the Supreme Court and defense counsel engaged in a colloquy duringwhich the court ruled that defense counsel had absolutely no right to suggest or comment on theresponse to the juror's note, and peremptorily directed counsel not to attempt to assert such aright. In concluding that the trial court had committed a mode of proceedings error, the Court ofAppeals noted that O'Rama required that counsel have "the opportunity to be heardbefore the response is given," and that the trial court had "entirely deprived defendant ofhis right to have specific input into the court's response to the single juror's note" (id. at931 [internal quotation marks omitted]).
Here, the Supreme Court's actions in repeatedly violating the procedure set forth inO'Rama by reading the jury notes for the first time in front of the jury and immediatelyproviding a formal response were effectively the same as telling counsel that he had no right toparticipate in suggesting a response (see People v Cook, 85 NY2d at 931). The purposeof CPL 310.30 and the O'Rama decision is to maximize the participation of counsel at atime when counsel's input is most meaningful, that is, before the court gives its formal responseto the jury (see People v Cook, 85 NY2d at 931; People v O'Rama, 78 NY2d at278). In that way, counsel can frame intelligent suggestions for the court's response and preventthe jury from being exposed to potentially prejudicial information (see People v Kisoon,8 NY3d at 134; People v O'Rama, 78 NY2d at 278). The nature of the jury's inquiriesmade this a critical moment in the trial (see People v Kisoon, 23 AD3d 18, 20 [2005], affd 8 NY3d129 [2007]). The jury was requesting clarification as to what to "base [the] decision on" andinsight into how to continue its deliberations in the face of a deadlock. This was not a request fora mere ministerial readback of the elements of a charged offense or the viewing of an exhibitentered into evidence, where the court's response would be obvious (cf. People vStarling, 85 NY2d 509, 516 [1995] [verbatim rereading of intent charge previously given onseveral occasions]; People v Bryant,82 AD3d 1114 [2011] [jury merely requested readbacks of certain testimony and of thedefinitions of certain crimes, and to be provided with certain evidence]; People v Hinton, 61 AD3d 481[2009] [noting that two of the inquiries required essentially ministerial responses that were notlikely to require significant input]; People v Snider, 49 AD3d 459 [2008] [notes simply called forreadbacks of portions of the court's charge]; People v Campbell, 48 AD3d 204 [2008] [rereading of theelements of the crimes]). Rather, the jury's notes called for a substantive response that requiredcareful crafting after hearing argument from both the People and the defense (see People vKisoon, 8 NY3d at 134). Since defense counsel was not afforded the opportunity to providesuggestions, he was prevented from participating meaningfully at this critical stage of theproceedings (see People v O'Rama, 78 NY2d at 279; People v Surpris, 83 AD3d742 [2011]).
Of course, even where the jury's request calls for a ministerial response, a court's failure toallow counsel the opportunity to participate meaningfully in formulating the court's responseconstitutes error, albeit one which requires preservation. Here, however, the error went to themode of proceedings. Moreover, since the defendant was deprived of the opportunity toparticipate in formulating a response to [*3]the jury's notes,prejudice manifestly resulted (see People v Kisoon, 8 NY3d at 135; People vCook, 85 NY2d at 931; People v O'Rama, 78 NY2d at 279-280). Thus, despitedefense counsel's failure to object to the Supreme Court's handling of the jury's notes, reversal isrequired.
The defendant's remaining contentions are academic in light of our determination.
Accordingly, the judgment is reversed and the matter must be remitted to the Supreme Court,Queens County, for a new trial. Florio, J.P., Dickerson, Chambers and Lott, JJ., concur.