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People v. Morrison

Supreme Court of New York, Fourth Department

March 24, 2017

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
WILLIAM MORRISON, DEFENDANT-APPELLANT.

          MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

          ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (TIM WU OF COUNSEL), FOR RESPONDENT.

          PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.

         Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered April 18, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the first degree, sexual abuse in the first degree and endangering the welfare of a vulnerable elderly person in the second degree.

         It is hereby ORDERED that the judgment so appealed from is reversed on the law and a new trial is granted on counts one through three of the indictment.

         Memorandum: On a prior appeal, we affirmed the judgment convicting defendant upon a jury verdict of rape in the first degree (Penal Law § 130.35 [1]), sexual abuse in the first degree (§ 130.65 [1]), and endangering the welfare of a vulnerable elderly person in the second degree (former § 260.32 [4]) (People v Morrison, 90 A.D.3d 1554, lv denied 19 N.Y.3d 1028, reconsideration denied 20 N.Y.3d 934). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue that may have merit, i.e., whether County Court erred in failing to comply with CPL 310.30 in its handling of jury notes (People v Morrison, 128 A.D.3d 1424), and we vacated our prior order. We now consider the appeal de novo.

         We agree with defendant that the court violated a core requirement of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note, and thereby committed reversible error (see People v Mack, 27 N.Y.3d 534, 538; People v Silva, 24 N.Y.3d 294, 299-300, rearg denied 24 N.Y.3d 1216; People v O'Rama, 78 N.Y.2d 270, 277-278). The record establishes that a jury note marked as court exhibit 8 stated that "[w]e have made decision on the Third Count we are having hard time with 1 and 2 just giving you are [sic] status." Soon thereafter, a jury note marked as court exhibit 9 stated that "[w]e have arrived on decision on 2 and 3, but we have a lot of work to do on #1. I don[']t see it being quick. Not sure what to do. We ars [sic] starting to make way."

         It is well settled that, "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 N.Y.3d at 538). Here, the record establishes that the court brought the jury into the courtroom but did not read court exhibits 8 and 9 into the record, contrary to the procedure it employed with the previous notes sent by the jury. The court then instructed the jury to continue working to try to reach a unanimous verdict. We agree with the People that CPL 310.30 did not apply to court exhibit 8 inasmuch as the jury was not requesting "further information or instruction" (People v Collins, 99 N.Y.2d 14, 17), but we agree with defendant that court exhibit 9 was a substantive jury note requiring notice to defense counsel (see People v Kisoon, 8 N.Y.3d 129, 135; People v Victor, 139 A.D.3d 1102, 1108-1109, lv denied 28 N.Y.3d 1076). Thus, defense counsel was "deprived... of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response" (Kisoon, 8 N.Y.3d at 135).

         We reject the People's contention, and disagree with our dissenting colleague, that the jury's inquiry was merely ministerial (cf. Mack, 27 N.Y.3d at 537 n 1). Our dissenting colleague concludes that the jury's statement, "[n]ot sure what to do, " was a ministerial inquiry concerning the logistics of the jury's deliberations, i.e., the jury was asking whether it should continue deliberating that evening considering the late hour. We agree that the note could be interpreted that way, but we conclude that it also could be interpreted as it was interpreted by the court, i.e., the jury was having difficulty reaching a unanimous verdict and was making a substantive inquiry for guidance concerning further deliberations. In response to the note, the court issued an Allen -type charge. Quite simply, even if we consider all the surrounding circumstances, the jury note was ambiguous, and we must resolve that ambiguity in defendant's favor (see People v Johnson, 64 N.Y.2d 617, 618 n 2; People v O'Donnell, 2 A.D.2d 971, 971; see also People v Thompson, 26 N.Y.3d 678, 687-688).

         We also reject the People's contention that "special circumstances, " i.e., the presence of media in the courtroom, justified the departure from the O'Rama procedures (O'Rama, 78 N.Y.2d at 278). There are no special circumstances that would excuse a court from failing to give notice to defense counsel of the contents of a substantive jury note (see generally Mack, 27 N.Y.3d at 538). Finally, contrary to the People's contention, "[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" (People v Walston, 23 N.Y.3d 986, 990; see People v Owens, 144 A.D.3d 1510, 1510-1511). The presumption of regularity cannot be applied when the alleged error is that the court failed to apprise defense counsel of the contents of a jury note, and the record "must indicate compliance with adequate procedures under O'Rama " (Silva, 24 N.Y.3d at 300). We therefore reverse the judgment and grant a new trial on counts one through three of the indictment. In light of our determination, there is no need to address defendant's remaining contentions.

         All concur except Peradotto, J., who dissents and votes to affirm in accordance with the following memorandum: I respectfully dissent. In my view, the O'Rama procedure was not implicated because the jury note marked as court exhibit 9 was ministerial in nature, and defendant was therefore required to preserve his challenge to County Court's handling of that jury note. There is no basis to exercise this Court's discretion in the interest of justice to address defendant's unpreserved contention. I would thus affirm the judgment of conviction.

         Criminal Procedure Law § 310.30 provides that a deliberating jury "may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper." The statute thus "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" (People v Mack, 27 N.Y.3d 534, 536, rearg denied 28 N.Y.3d 944; see People v Nealon, 26 N.Y.3d 152, 155-156; People v O'Rama, 78 N.Y.2d 270, 276-277). The statute, however, "does not require notice to defendant in every instance of communication from the jury to the court" (People v Lykes, 81 N.Y.2d 767, 769). Rather, "[t]he O'Rama procedure is implicated whenever the court receives a substantive written jury communication, ' " but that procedure "is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" (Nealon, 26 N.Y.3d at 161; see People v Mays, 20 N.Y.3d 969, 971; People v Ochoa, 14 N.Y.3d 180, 188).

         An inquiry is substantive, and thus triggers the court's obligations under O'Rama, "when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case" (People v Rivera, 23 N.Y.3d 827, 831; see People v Collins, 99 N.Y.2d 14, 17). An announcement by the jury that it is deadlocked-which is effectively a request that it be relieved of the duty to resolve the trial issues, thereby requiring further instruction by the court-is also a substantive inquiry (see e.g. People v Kisoon, 8 N.Y.3d 129, 132; O'Rama, 78 N.Y.2d at 275, 275 n 2; People v Lockley, 84 A.D.3d 836, 838, lv denied 17 N.Y.3d 807; see generally CPL 310.60).

         In contrast, an inquiry is ministerial if it is "wholly unrelated to the substantive legal or factual issues of the trial" (People v Harris, 76 N.Y.2d 810, 812; see People v Hameed, 88 N.Y.2d 232, 241, cert denied519 U.S. 1065; People v Gruyair, 75 A.D.3d 401, 402-403, lv denied15 N.Y.3d 852). Inquiries concerning " the logistics of the deliberative process, ' " such as questions about scheduling and requests for breaks (People v Bonaparte, 78 N.Y.2d 26, 30; see Mack, 27 N.Y.3d at 537 n 1; see generally People v Brito, 135 A.D.3d 627, 627, lv denied27 N.Y.3d 1066; People v Backus, 184 A.D.2d 231, 231, lv denied80 N.Y.2d 926), are " not the kind of substantive [requests] that implicate[] O'Rama ' " (People ...


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