| People v Mays |
| 2011 NY Slip Op 05329 [85 AD3d 1700] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Calvin Mays,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), renderedNovember 29, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree (two counts) and robbery in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countseach of robbery in the first degree (Penal Law § 160.15 [4]) and robbery in the seconddegree (§ 160.10 [1]), defendant contends that Supreme Court erred in allowing interactionbetween the prosecutor and the jurors during deliberations while a video recording was replayed.Defendant failed to preserve that contention for our review (see CPL 470.05 [2]),however, and we decline to exercise our power to review it as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). We reject defendant's contention that,pursuant to People v O'Rama (78 NY2d 270 [1991]), preservation of defendant'scontention is not required. In O'Rama, the Court of Appeals "note[d] that the court's errorin failing to disclose the contents of [a jury] note had the effect of entirely preventing defensecounsel from participating meaningfully in this critical stage of the trial and thus represented asignificant departure from the organization of the court or the mode of proceedings prescribed bylaw" (id. at 279 [internal quotation marks omitted]; see People v Patterson, 39NY2d 288, 295 [1976], affd 432 US 197 [1977]). Here, there was no significantdeparture from the organization of the court or the mode of proceedings prescribed by law(see generally People v Wiggins, 304 AD2d 322, 323 [2003], lv denied 100NY2d 625 [2003]; People v Davis, 260 AD2d 726, 729-730 [1999], lv denied 93NY2d 968 [1999]). As recognized by the Court of Appeals, "not every communication with adeliberating jury requires the participation of the court" (People v Bonaparte, 78 NY2d26, 30 [1991]), and a ministerial communication concerning the scope of a request for a readbackthat is "wholly unrelated to the substantive legal or factual issues of the trial" does not violateO'Rama or CPL 310.30 (People v Harris, 76 NY2d 810, 812 [1990]; see People v Gruyair, 75 AD3d401 [2010], lv denied 15 NY3d 852 [2010]). Here, the record establishes that theprosecutor's communications with the jury were "merely ministerial" (People v Pichardo, 79 AD3d 1649,1652 [2010], lv denied 16 NY3d 835 [2011]). "The [prosecutor] did not attempt toconvey any legal instructions to the jury or to instruct [it] as to [its] duties and obligations. . .[, nor did the prosecutor] deliver any instructions to the jury concerning themode or subject of [its] [*2]deliberations" (Bonaparte, 78NY2d at 31). Thus, "[i]n the present case, unlike in O'Rama . . . , [any] errordoes not amount to a failure to provide counsel with meaningful notice of the contents of [a] jurynote or an opportunity to respond" (People v Kadarko, 14 NY3d 426, 429 [2010]).
All concur except Fahey and Martoche, JJ., who dissent and vote to reverse in accordancewith the following memorandum.
Fahey and Martoche, JJ. (dissenting). We respectfully dissent. In our view, Supreme Courtimproperly delegated control of a critical portion of the proceedings to the prosecutor insofar as itallowed the prosecutor to fashion responses to juror questions and guide the jurors through theplayback of video recordings. Consequently, we would reverse the judgment of conviction andgrant defendant a new trial on those counts of the indictment of which he was convicted.
In 2007, defendant was tried with respect to a series of charges arising from two incidents ofrobbery that occurred in Monroe County during October and November of 2006. Duringdeliberations, the jury was returned to the courtroom in response to a jury note. The note was notincluded in the record on appeal, and the transcript contains no discussion between theprosecutor and defense counsel, in the presence of defendant, concerning a proposed response tothe note. Rather, the record reflects that the court determined that the jurors would have to returnto the courtroom to review video recordings allegedly made during the robberies.
A playback of the video recordings was arranged, and the prosecutor ran the video playbackmachine and directly communicated with one juror concerning what the jurors wanted to see onthe video recordings. Indeed, the court allowed the prosecutor to engage in a discussion with thejury about that footage. After playing one of the three surveillance videos, the prosecutor asked,"The next one?" and then stated, "There is another." When a juror asked whether it was possibleto "freeze it when [the suspects] are together," the prosecutor did not consult with the court butunilaterally replied, "I'll see if I can do that. I may have to start from the beginning to get that foryou." The prosecutor further stated, "I'll keep trying for you." Moreover, at one point during herexchange with the jury, the prosecutor asked, "Do you want to see it again?" No objection wasmade by defense counsel during the playback process.
Initially, we do not agree with the majority that preservation of defendant's contention isrequired. In our view, the interaction, which was unaccompanied by any admonition by the court," 'goes to the general and over-all procedure of the trial' " and is a mode of trialproceedings error for which preservation is not required (People v Hawkins, 11 NY3d 484, 492 n 2 [2008]).
"Under CPL 310.30, upon a jury's request for reinstruction or information 'the court mustdirect that the jury be returned to the courtroom and, after notice to both the [P]eople and counselfor the defendant, and in the presence of the defendant, must give such requested information andinstruction as the court deems proper' " (People v Lykes, 81 NY2d 767, 769 [1992],quoting CPL 310.30). "[A] court may not delegate the responsibility of communicating with thejury to non-judicial personnel, and generally may not communicate with the jury through anon-judicial intermediary" on matters that are not ministerial in nature, i.e., communications thatdo not concern information pertaining to the law or the facts of the case (People vMoyler, 221 AD2d 943, 943 [1995], lv denied 87 NY2d 905 [1995], lvdismissed 87 NY2d 923 [1996]; see People v Bonaparte, 78 NY2d 26, 30 [1991];People v Ahmed, 66 NY2d 307 [1985], rearg denied 67 NY2d 647 [1986]). "Aviolation of that rule cannot be waived or consented to by defendant, presents a reviewablequestion of law even in the absence of objection, and is not amenable to harmless error analysis"(Moyler, 221 AD2d at 944; see Ahmed, 66 NY2d at 310-311). Thus, it isreversible error when someone other than the court performs the judicial function of respondingto the jury's request for information concerning a matter that is not ministerial in nature (seePeople v Khalek, 91 NY2d 838 [1997]; People v Cassell, 62 [*3]AD3d 1021 [2009]; People v Flores, 282 AD2d 688, 689[2001]).
In Ahmed (66 NY2d at 309-310), the defendant agreed to allow the court's lawsecretary to respond to notes from the deliberating jury. In determining that reversal wasrequired, the Court of Appeals wrote that "[t]he failure of a judge to retain control ofdeliberations, because of its impact on the constitutional guarantee of trial by jury, alsoimplicates the organization of the court or mode of proceedings prescribed by law. . . , and such failure represents a question of law for [appellate] review even absenttimely objection" (id. at 310). In Moyler (221 AD2d at 944), preservation was notrequired in connection with the defendant's contention that the trial court delegated a judicialfunction to a court employee (cf. Peoplev Kelly, 5 NY3d 116, 120-121 [2005]; People v Pichardo, 79 AD3d 1649, 1651-1652 [2010], lvdenied 16 NY3d 835 [2011]). Likewise, here, someone other than the trial court waspermitted to converse with the jury concerning trial exhibits, during deliberations and on therecord, in the presence of the trial court.
In so concluding, we acknowledge that the Third Department held in People v Davis(260 AD2d 726, 729-730 [1999], lv denied 93 NY2d 968 [1999]) that allowing theprosecutor to play a videotape for the jury in court and to show the foreperson how to run theVCR during deliberations was a delegation of a ministerial act and did not affect the organizationof the court or the mode of proceedings prescribed by law. Here, however, the prosecutor morethan merely operated the video playback machine inasmuch as she conversed with a juror duringthe playing of the video recordings and gave verbal responses to juror requests to pause theplayback and to replay certain portions of the video recordings. In addition, as previously noted,she asked jurors questions such as, "Do you want to see it again?" In other words, theprosecutor's conduct went beyond the playing of the video recordings and thus in our view cannotbe considered to be a mere ministerial act.
With respect to the merits, we conclude that the prosecutor's exchange with the juryconstitutes reversible error. CPL 310.10 explicitly requires that the court respond to jurorrequests for instruction and/or information during deliberations. The court allowed the prosecutorto fashion responses to juror questions and to guide the jurors through the playback of the videorecordings. In our view, that amounted to "[t]he failure of [the trial] judge to retain control ofdeliberations" (Ahmed, 66 NY2d at 310) and, "by delegating his function, at least in part,to [the prosecutor], the trial judge deprived the defendant of his right to a trial by jury"(id. at 312).
This case more clearly requires reversal than Ahmed or Moyler because thosecases involved the delegation of the court's function to a court employee who was neutral to theproceedings. Here, the delegation of duties was to the prosecutor, an advocate rather than aneutral party. The subtleties of advocacy are founded upon establishing a positive relationshipwith jurors, which is precisely why direct contact between attorneys and jurors duringdeliberations is strictly prohibited. Present—Smith, J.P., Centra, Fahey, Gorski andMartoche, JJ.