| People v Kahley |
| 2013 NY Slip Op 02860 [105 AD3d 1322] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DaleKahley, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.),rendered September 20, 1993. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: Following a jury trial in 1993, defendant was convicted ofmurder in the second degree (Penal Law § 125.25 [1]). On direct appeal, defendantraised a number of contentions, one of which challenged the admissibility ofidentification testimony admitted at trial. Although we initially reserved decision andremitted the matter to County Court for a hearing on the issue whether an identificationprocedure employed by the police was confirmatory (People v Kahley, 214AD2d 960 [1995]), we ultimately affirmed the judgment of conviction (People vKahley, 227 AD2d 934 [1996], lv denied 89 NY2d 925 [1996]). In 2009,defendant moved for a writ of error coram nobis, asserting that his appellate attorney wasineffective for failing to raise an issue on direct appeal that would have resulted inreversal, i.e., that the court, in violation of CPL 310.30, failed to notify him of thecontents of a note received from the jury during its deliberations. We granted the writ (People v Kahley, 60 AD3d1438 [2009]) and now consider the appeal de novo. On this appeal, defendantcontends, inter alia, that he is entitled to a new trial due to the court's failure to complywith CPL 310.30.
The relevant law is well settled. CPL 310.30 (1) provides generally that, uponreceiving a note from the jury during deliberations requesting further instruction orinformation, "the court must direct that the jury be returned to the courtroom and, afternotice to both the people and counsel for the defendant, and in the presence of thedefendant, must give such requested information or instruction as the court deemsproper." In People v O'Rama (78 NY2d 270 [1991]), which was decided twoyears before defendant's trial, the Court of Appeals provided more detailed instructionsfor the handling of jury notes. The Court advised that, "whenever a substantive writtenjury 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 ofcounsel. Such a step would ensure a clear and complete record, thereby facilitatingadequate and fair appellate review. After the contents of the inquiry are placed on therecord, counsel should [*2]be afforded a full opportunityto suggest appropriate responses . . . [T]he trial court should ordinarilyapprise counsel of the substance of the responsive instruction it intends to give so thatcounsel can seek whatever modifications are deemed appropriate before the juryis exposed to the potentially harmful information. Finally, when the jury is returned tothe courtroom, the communication should be read in open court so that the individualjurors can correct any inaccuracies in the transcription of the inquiry and, in cases wherethe communication was sent by an individual juror, the rest of the jury panel canappreciate the purpose of the court's response and the context in which it is being made"(id. at 277-278). In O'Rama, the Court concluded that the trial court'sfailure to disclose the contents of a jury note to defendant was a mode of proceedingserror that required reversal even in the absence of an objection (id. at 279),reasoning that the court's error "deprived [defendant] of the opportunity to have input,through counsel or otherwise, into the court's response to an important, substantive jurorinquiry" (id. at 279-280).
In subsequent cases, the Court made clear that not all O'Rama violationsconstitute mode of proceedings errors (see People v Ramirez, 15 NY3d 824, 825-826 [2010]; People v Kisoon, 8 NY3d129, 134-135 [2007]; People v Starling, 85 NY2d 509, 516 [1995]). Theonly errors that require reversal in the absence of preservation are those that go to thetrial court's "core responsibilities" under CPL 310.30, such as giving notice to defensecounsel and the prosecutor of the contents of a jury note (People v Tabb, 13 NY3d852, 853 [2009]).
Here, after the jury had been deliberating for approximately two hours, the courtstated on the record, "We have received an additional note requesting [the testimony ofSimmons and Carmichael concerning] who left the house before the shots were fired."We note that, although the court referred to an "additional note," there is no indication inthe record that a prior note had been sent by the jury. Once the jury was returned to thecourtroom, the court stated, "Ladies and gentlemen, the court reporter has been preparingher notes and she will now read to you the testimony of Dr. Albert and . . .Rucker. After that testimony, we'll excuse you to have your lunch and to have the courtreporter further prepare her notes and then resume with the testimony of the otherwitnesses approximately one hour later. Go ahead."
The record reflects that the court reporter then read testimony of Dr. Albert andRucker to the jury, but the record does not identify what portion of the testimony wasread. The jury was then excused for lunch. Approximately an hour and a half later, thejury was returned to the courtroom and informed by the court that the court reporter wasprepared to read the testimony of Simmons and Carmichael, as well as the testimony ofWeaver, who testified for the prosecution that he was with defendant when the fatal shotwas fired. The court's reference to Weaver's testimony is the first indication in the recordthat the jury had requested a readback of his testimony. The requested testimony of thosethree witnesses was read to the jury, which later rendered a guilty verdict.
There can be no dispute that the court failed to follow several of the proceduresoutlined in O'Rama. For instance, the court failed to mark any of the jury notes asexhibits and did not read the notes into the record. Defendant, however, did not object tothe court's handling of the jury notes and, thus, his contention that the court violated CPL310.30 is unpreserved for our review (see CPL 470.05 [2]). As defense counselcorrectly conceded at oral argument of this appeal, the court did not commit mode ofproceedings errors in failing to mark the jury notes as exhibits and to read them into therecord. Because CPL 310.30 does not mandate the marking and reading of notes into therecord, it logically follows that those are not among the court's "core responsibilities"under the statute (Tabb, 13 NY3d at 853; cf. People v Weaver, 89 AD3d 1477, 1478-1479 [2011]).We perceive no basis to review defendant's unpreserved contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).[*3]
Defendant nevertheless contends that he isentitled to a new trial because the court committed a mode of proceedings error for whichpreservation is not required in failing to advise him of the contents of what appears tohave been the first note sent by the jury, i.e., the note requesting a readback of testimonyfrom Dr. Albert and Rucker, and possibly Weaver. In response, the People suggest thatnotice of the first note was provided to defendant off the record, as evidenced by the factthat defense counsel remained silent when informed by the court that it had received an"additional note" to that sent requesting the testimony of Simmons and Carmichael.Because the court failed to follow the O'Rama procedures, however, it cannot besaid with certainty whether defense counsel received such notice off the record, and wedecline to resolve the issue based on inference and conjecture.
Because it is unclear from the record whether defendant was notified of the contentsof the jury note or notes requesting a readback of the testimony of Dr. Albert, Rucker andWeaver, we hold the case, reserve decision and remit the matter to County Court for areconstruction hearing on that issue (see People v Martinez, 186 AD2d 14, 14-15[1992]; see generally People vCruz, 42 AD3d 901, 901 [2007]; People v Russo, 283 AD2d 910[2001], lv denied 96 NY2d 867 [2001]).
We agree with the dissent that the core requirements of CPL 310.30 are triggeredonly by a "substantive juror inquiry" (O'Rama, 78 NY2d at 280). We furtheragree that a request by the jury for a readback of the entire testimony of a witness is not asubstantive inquiry, inasmuch as the appropriate response from the court to such a note is"obvious" (People vLockley, 84 AD3d 836, 838 [2011], lv denied 17 NY3d 807 [2011]; see generally People v Alcide,95 AD3d 897, 898 [2012], lv granted 19 NY3d 956 [2012] ["Since the jurymerely requested read-backs of certain trial testimony, the alleged error did not constitutea mode of proceedings error which would obviate the preservation requirement"]; People v Gerrara, 88 AD3d811, 812-813 [2011], lv denied 18 NY3d 957 [2012], cert denied568 US —, 133 S Ct 857 [2013]; People v Bryant, 82 AD3d 1114, 1115 [2011], lvdenied 17 NY3d 792 [2011]).
On this record, however, it cannot be determined whether the jury requested theentire testimony of witnesses Dr. Albert, Rucker and Weaver. Indeed, the dissentacknowledges as much, stating that "we can infer from the transcript" that the juryrequested the entire testimony of those witnesses. The dissent must resort to inferencehere because, as noted, the court failed to comply with the O'Rama procedures bymarking the note as an exhibit and reading it into the record. In any event, we do notbelieve that the inference drawn by the dissent is supported by the transcript.
If the jury requested only a portion of any of the witnesses' testimony, a mode ofproceedings error would have occurred if the court failed to notify defense counsel of thejury note, considering that input from defense counsel would have been helpful indetermining what portions of the testimony should be included in the readback. In ourview, given the incomplete nature of the record, the issue whether the jurors requested areadback of the entire testimony of the witnesses in question also should be resolved atthe reconstruction hearing, assuming, of course, that the court first determines that noticeof the unrecorded note was not in fact given to defense counsel.
We have reviewed defendant's remaining contentions and conclude that nonewarrants modification or reversal of the judgment.
All concur except Smith, J.P., and Peradotto, J., who dissent and vote to affirm in thefollowing memorandum.
Smith, J.P., and Peradotto, J. (dissenting). We respectfully dissent inasmuch as weconclude that there is no need for a reconstruction hearing with respect to defendant'sunpreserved O'Rama contention (see People v O'Rama, 78 NY2d 270[1991]). Because we agree with the majority that the remainder of defendant'scontentions are without merit, we would affirm the judgment without holding the [*4]case and remitting the matter to County Court for areconstruction hearing.
Under O'Rama and its progeny, when the trial court receives a "substantivejuror inquiry" (id. at 280), CPL 310.30 requires the court to provide "meaningfulnotice to counsel of the specific content of the jurors' request" (People v Kisoon, 8 NY3d129, 134 [2007]; see O'Rama, 78 NY2d at 276). As the Court of Appealshas explained, "[t]he point of [its] decision in O'Rama . . . was 'notto mandate adherence to a rigid set of procedures, but rather to delineate a set ofguidelines calculated to maximize participation by counsel at a time when counsel's inputis most meaningful, i.e., before the court gives its formal response' " (People vLykes, 81 NY2d 767, 769 [1992], quoting O'Rama, 78 NY2d at 278). Thus,the purpose of the notice requirement is to "ensure counsel's opportunity to frameintelligent suggestions for the fairest and least prejudicial response . . . tothe jury" (Kisoon, 8 NY3d at 134; see O'Rama, 78 NY2d at 277-278).Where a jury note "contain[s] a substantive inquiry, the [trial court]'s failure to providecounsel an opportunity to participate meaningfully in formulating its response[constitutes] a mode of proceedings error that requires reversal," even in the absence ofpreservation (People vStocks, 101 AD3d 1049, 1051 [2012]; see People v Tabb, 13 NY3d 852, 852 [2009]).
We conclude that the jury notes at issue, which requested readbacks of the entiretestimony of various witnesses, were not substantive in nature and, therefore, did notimplicate the court's core responsibilities under CPL 310.30 (see People v Gerrara, 88 AD3d811, 812-813 [2011], lv denied 18 NY3d 957 [2012], cert denied568 US —, 133 S Ct 857 [2013]; People v Bryant, 82 AD3d 1114, 1114 [2011], lvdenied 17 NY3d 792 [2011]). The record reflects that the court received three notesrequesting readbacks of the testimony of five witnesses. The second note requested thetestimony of Simmons and "Carmichael's testimony of who left the house before theshots were fired." The third note requested Carmichael's entire testimony. Although thefirst note was not summarized on the record, we can infer from the transcript that the juryrequested the testimony of Dr. Albert, Rucker, and Weaver. At 12:39 p.m., the courtadvised the jury that the court reporter "will now read to you the testimony of Dr. Albertand . . . Rucker. After that testimony, we'll excuse you to have your lunchand to have the court reporter further prepare her notes and then resume with thetestimony of the other witnesses." The jury was excused at 1:00 p.m. and, in the presenceof defendant and defense counsel and outside the presence of the jury, the courtexplained that "[a]t this time we'll read Mr. Simmons' and [Weaver's] [testimony] andwe'll go over . . . Carmichael's testimony before the jury hears it."
When the jury returned to the courtroom at 2:35 p.m., the court advised the jury that"[a]t this time we'll read the testimony of [Weaver] for you and . . .Simmons and then we'll excuse you for a few moments while we clarify some issues onthe Carmichael testimony." After a read back of the testimony of Simmons and Weaver,the court again excused the jury and held a bench conference with counsel, apparently todetermine how best to respond to the jury's request for a portion of Carmichael'stestimony. Before that response was given, however, the court received a third noterequesting the entirety of Carmichael's testimony, which was then read to the jury.
In our view, inasmuch as the jury merely requested readbacks of the entire testimonyof certain witnesses, defendant's contention that the court did not strictly comply with theprocedure set forth in CPL 310.30 required preservation (see Gerrara, 88 AD3dat 812-813; Bryant, 82 AD3d at 1114). Notably, the nature of the jury's inquiriesrequired no input from defendant or defense counsel in framing the court's responsesthereto. The jury requested readbacks of the testimony of five witnesses, and the courtresponded by reading the testimony of those witnesses in full.
In sum, because "neither defense counsel nor defendant could have provided ameaningful contribution" to the court's responses to the jury notes in question (Peoplev Ochoa, [*5]14 NY3d 180, 188 [2010]), defendant"was not denied the opportunity to provide input regarding a substantive response orre-instruction to the jury" (Lykes, 178 AD2d 927, 927-928 [1991],affd 81 NY2d 767 [1992] [emphasis added]) and neither reversal nor remittal fora reconstruction hearing is required. Present—Smith, J.P., Peradotto, Lindley,Sconiers and Whalen JJ.