Monday, August 27, 2018

Recent Court of Appeals Decisions on Jury Notes

by Jill Paperno,

When a jury has a substantive note in the case (not simply asking for a bathroom or cigarette break, for example), it is not enough for a judge to summarize its contents.  This is one of the few areas in which appellate courts scrutinize adherence to the letter of the law, in this case CPL 310.30 (Jury deliberation; request for information), and the cases interpreting it (specifically, People v. O'Rama 78 NY2d 270).  Failure to provide this information to defense counsel constitutes a "mode of proceedings error," and can lead to reversal. In People v. Parker and People v. Morrison, both decided on June 28, 2018, the Court of Appeals reaffirmed its position on the need to strictly adhere to jury note procedures. 

In People v. Parker2018 NY Slip Op 04776, the Court reiterated what is required by the trial court in providing meaningful notice of the contents of the note, and a meaningful response to the jury. The Court further acknowledged the purpose of notice to the counsel is to provide counsel with the opportunity to "participate in the formation of a response" to the jury's question.  Justice Rivera, writing for the Court, noted that the record did not establish that all three jury notes were shared with counsel, and stated:   

CPL 310.30 requires that, in response to a jury request for additional information or instruction "with respect to any matter pertinent to the jury's consideration of the case," the trial court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant[,] must give such requested information or instruction as the court deems proper." In People v Mack, we reaffirmed that CPL 310.30 "imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the  court must provide a meaningful response to the jury" (27 NY3d 534, 536  [2016], citing O'Rama, 78 NY2d at 276-277). "[M]eaningful notice means notice of the actual specific content of the jurors' request'" (id. at 538, quoting O'Rama, 78 NY2d at 277). The purpose of this requirement is to give counsel an opportunity to participate in the formation of a response to the jury's substantive inquiry (see O'Rama, 78 NY2d at 276-277). As we have repeatedly instructed, such "departures from the O'Rama procedures are not subject to preservation rules" (People v Walston, 23 NY3d 986, 989, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] [citations omitted]). Rather, "when the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required" (Mack, 27 NY3d at 538).
People v Parker, 2018 N.Y. LEXIS 1592, *13-14 

 In People v. Morrison, 2018 NY Slip Op 04777, decided 6/28/18, the Court of Appeals reversed defendant's conviction because the entire content of the note was not shared with counsel, stating, 

The trial court's failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal (see People v Mack, 27 NY3d 534, 538  [2016], rearg denied 28 N.Y.3d 944 [2016]; People v Nealon, 26 NY3d 152, 156-157 [2015]). "[M]eaningful notice means notice of the actual specific content of the jurors' request'" (Mack, 27 NY3d at 538, quoting People v O'Rama, 78 NY2d 270, 277  [1991]). Although the record demonstrates that "defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel" (People v Walston, 23 NY3d 986, 990 [2014]). We therefore reject the People's argument that defense counsel's awareness of the existence and the "gist" of the note satisfied the court's meaningful notice obligation, or that preservation was required. "Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required" (id.).
Moreover, "[w]here a trial transcript does  not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to" (id.). In other words, "[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal" (People v Tabb, 13 NY3d 852, 853  [2009]). We again decline "to disavow our holding in Walston . . . that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama" (People v Silva, 24 NY3d 294, 300  [2014], rearg denied 24 N.Y.3d 1216 [2015]; see People v Parker, — NY3d — [decided today]).  People v Morrison, 2018 N.Y. LEXIS 1594, *1-2 

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