Lorraine Maddalo, for appellant.
P. Mansell, for respondent.
Matthew J. Bova, for appellant.
P. Mansell, for respondent.
Lawrence Parker and Mark Nonni challenge their convictions
for robbery in the second degree, based on the trial
court's failure to provide counsel with notice of jury
requests for information during deliberations and the denial
of defendants' motions to suppress evidence recovered
forcibly by the police. Defendants' claims that the court
should have granted the suppression motions, to the extent
preserved, are without merit. Pursuant to our
well-established rules as set forth in this Court's
seminal decision in People v O'Rama (78 N.Y.2d
270 ) and its progeny, however, we conclude that,
because the record fails to establish that the trial court
provided counsel with meaningful notice of the precise
contents of two substantive jury notes in discharge of a core
obligation under CPL 310.30, a mode of proceedings error
occurred and a new trial must be ordered.
Suppression Hearing Evidence, Jury Note Record, and
were indicted and jointly tried for various crimes arising
from the violent theft of several thousand dollars at a
commercial establishment. The morning of the crime,
defendants gained access to the building under the ruse that
they were interested in renting the space for a private
event. Once inside, defendants attacked and bound the
complainant with duct tape before taking the money.
defendants' suppression hearing, testimony from the
arresting officers established that on January 21, 2008 at
approximately 9:30 a.m., the police received a radio
transmission about a burglary in progress. Within five
minutes, three police vehicles arrived at the address
provided by the 911 caller, which turned out to be a country
club in a residential neighborhood. The only people the
officers observed in the vicinity were defendants, who were
walking together on the gated club's private driveway and
heading towards the street. As the officers walked towards
the driveway with their badges displayed, a uniformed officer
ordered defendants to stop. This officer announced that they
"were police officers and wanted to ask [defendants] a
question." Defendants continued to walk away from the
clubhouse, towards the street. The officer again called out,
"please, stop, we want to ask you a question."
Defendants then took off in opposite directions from one
another and away from the police.
officers pursued defendant Nonni as he ran up the street.
They caught up with and eventually subdued him on the ground.
As one of the officers was handcuffing him, a knife sliced
through defendant Nonni's backpack and cut the
officer's finger. The officers then searched the bag and
found two other knives and a roll of duct tape. They also
retrieved from defendant Nonni's back-left pocket three
bank envelopes, each marked with orange highlighter and each
containing $1, 000. 
defendant Nonni ran, defendant Parker "briskly
walked" in a "hurried pace" and "evasive
manner" towards the other side of the street. Two
officers followed, and one of them told defendant Parker to
stop. As the officer got closer, he could see a sledgehammer
in defendant Parker's unzipped backpack. The officer
eventually grabbed defendant Parker from behind, handcuffed
him, and retrieved a crowbar from his backpack and a small
steak knife from the front pocket of his coat.
on the evidence at the hearing, the court denied
defendants' respective motions to suppress. The court
credited fully the police officers' testimony and found
that under People v De Bour (40 N.Y.2d 210');">40 N.Y.2d 210 ),
the officers initially had a common law right of inquiry.
Defendants' immediate flight evinced more than a desire
to be let alone, the court added, thus providing reasonable
suspicion that both defendants were involved in a crime,
which justified their pursuit, and the search and seizure.
morning of the second day of jury deliberations, the jury
sent three substantive notes to the court within the span of
an hour. The first note, sent at 11:16 a.m., requested
definitions of several of the charged crimes as well as
testimony related to where defendants were seen and caught;
the second note, sent approximately 15 minutes later,
requested testimony regarding fingerprint evidence; and the
third note, sent 20 minutes later, requested testimony of the
complainant and his wife.
notes were marked into evidence as court exhibits. Outside of
the jury's presence, the court stated on the record that
it had received those three notes, which it would "be
reading into the record after the jury [wa]s seated[, ] and
[that it was] going to respond to at least one of those
notes" at that time. The court continued that it
believed counsel agreed upon the sections of the testimony
that would be read to the jury in response to the first note.
As it turned out, there were open issues and so the court
engaged in an on-the-record discussion with counsel as to the
contents of the readback. At that time, the court did not
read the other notes into the record nor mention whether
counsel had seen or discussed those notes.
the jury returned to the courtroom, the court stated on the
record that it had received three notes and would read them
back. The court then read the first note and proceeded to
read back the requested testimony. At the conclusion of the
readback, the court stated, "the additional testimony
that you requested in the other two notes, we'll respond
to that after lunch." The court also informed the jurors
that they could deliberate during lunch.
that one-hour break, the court announced on the record that
the jury had sent a note indicating it had reached a verdict.
In response to the court's inquiry, defense counsel and
the prosecutor confirmed that they had seen this last note.
The court then accepted the verdict on the record in open
Appellate Division affirmed the convictions with two Justices
dissenting (People v Nonni, 135 A.D.3d 52');">135 A.D.3d 52 [1st Dept
2015]). As relevant to the issues presented in this appeal,
the majority concluded that the facts surrounding the police
encounter, including defendants' flight from the police,
justified the police action under De Bour. It also
held that the knife protruding from defendant Nonni's
backpack and the visible sledgehammer in defendant
Parker's bag justified an immediate, protective search of
their respective bags and persons (id. at 58). The
Appellate Division did not address the O'Rama
violation, which was not raised in that court.
Legality of the ...