Stith Long, for appellant.
R. Humphrey, for respondent.
order of the Appellate Division should be affirmed.
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
N.Y.3d 534, 538 , rearg denied 28 N.Y.3d 944');">28 N.Y.3d 944
; People v Nealon, 26 N.Y.3d 152, 156-157
). "[M]eaningful notice means notice of the actual
specific content of the jurors' request'"
(Mack, 27 N.Y.3d at 538, quoting People v
O'Rama, 78 N.Y.2d 270');">78 N.Y.2d 270');">78 N.Y.2d 270');">78 N.Y.2d 270, 277 ). 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 N.Y.3d 986');">23 N.Y.3d 986');">23 N.Y.3d 986');">23 N.Y.3d 986, 990 ). 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
"[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 N.Y.3d 852');">13 N.Y.3d 852, 853 ). 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 N.Y.3d
294, 300 , rearg denied 24 N.Y.3d 1216');">24 N.Y.3d 1216 ;
see People v Parker, __ N.Y.3d __ [decided today]).
jury note marked as Court Exhibit 9, which is the only note
at issue on this appeal, was not ministerial . Even
assuming for the sake of argument that the jury was
requesting instruction on whether to continue deliberating or
to return the next morning-a request that would require only
a ministerial response-the note also stated that the jury had
reached a decision on counts two and three but had "a
lot of work to do" on count one. A note that informs the
court that the jury has reached a verdict on two counts but
is struggling with another count is not a note that is"
wholly unrelated to the substantive legal or factual issues
of the trial'" (People v Hameed, 88 N.Y.2d
232, 241 , quoting People v Harris, 76 N.Y.2d
810, 812 ) of which the trial court had no obligation
to provide meaningful notice to counsel (see People v
Wallace, 27 N.Y.3d 1037, 1039 ; Nealon,
26 N.Y.3d at 161; People v Ochoa, 14 N.Y.3d 180, 188
). Counsel, upon receiving meaningful notice, may have
requested a partial verdict or a modified Allen
charge, which was the response the trial court ultimately
provided to the jury.
extent the People contend that the presence of media in the
courtroom justified the trial court's failure to provide
counsel with meaningful notice, that argument is without
merit. The O'Rama Court recognized that
"special circumstances," such as concern about
sharing an individual juror's note with the rest of the
jury, might warrant departure from the O'Rama
procedure, but the Court found it "difficult to imagine
a situation in which a court would be justified in declining
to show or read a juror's note to counsel"
(O'Rama, 78 N.Y.2d at 278-279). If the trial
court was concerned about media influence, it could have
simply asked counsel to confirm on the record that they had
read the note.
[T]hough it hardly needs restating, we underscore the
desirability of adherence to the procedures outlined in
O'Rama '" (Nealon, 26 N.Y.3d
at 163, quoting People v Kisoon, 8 N.Y.3d 129');">8 N.Y.3d 129, 135
DiFIORE, Chief Judge (dissenting):
reasons stated in my dissent in People v Parker (__
N.Y.3d __ [decided today]), I would not apply a per se rule
of reversal where there is sufficient ambiguity in the record
as to whether defense counsel received meaningful notice of
the content of jury note seven (court exhibit 9). As noted by
Judge Garcia's dissent in this case, the trial court
demonstrated a pattern of compliance with the notice
procedures mandated by CPL 310.30 and People v
O'Rama (78 N.Y.2d 270');">78 N.Y.2d 270');">78 N.Y.2d 270');">78 N.Y.2d 270 ). In addition, in
responding to the jury note at issue, which sought guidance
as to whether to continue deliberations, the court told the
jury that "we as a group would like you to keep
working." Under these circumstances, there is a
significant ambiguity in the record before us and a
reconstruction hearing is warranted (see People v
Velasquez, 1 N.Y.3d 44, 49 ). Thus, I also join
Part IV of Judge Garcia's dissenting opinion.
GARCIA, J. (dissenting):
confessed to forcibly raping a 90-year-old Alzheimer's
patient, and his confession was corroborated by DNA evidence.
Today, the Court reverses defendant's conviction
(majority op at 1), and the convictions of two other
defendants (People v Parker, __ N.Y.3d __, __ 
[decided today]), based solely on an unpreserved claim. The
majority forgives defendant's failure to preserve his
challenge by relying on a record-making deficiency-the trial
court declined to read a jury note into the record-even
though defense counsel was aware of the note at issue and was
informed that the trial court would not read the note aloud.
The record also supplies reason to believe that defense
counsel received the note and read its contents.
than simply asking for the contents of the note, or lodging
any form of an objection, defendants in these circumstances
are better off-under this Court's precedent-remaining
silent and hoping for an acquittal; in the event of an
unfavorable verdict, their claim will secure an automatic
reversal on appeal. In its current form, the "mode of
proceedings" doctrine ignores basic notions of fairness
and common sense. It enables gamesmanship, encouraging
litigants to "manipulate the system by remaining silent
while error is committed, only to complain of it later"
(People v Walston, 23 N.Y.3d 986');">23 N.Y.3d 986');">23 N.Y.3d 986');">23 N.Y.3d 986, 992  [Smith,
J., concurring]). And it serves only to undermine the
important, fundamental purposes of our preservation rule.
sweeping rule of O'Rama should no longer bind
us. Where defense counsel is aware of a jury note and does
not know its contents, he should be required to preserve his
claim. At minimum, we should permit trial courts to
reconstruct the record to determine whether, in fact, defense
counsel had notice of the contents of the note. I dissent.
working as a nurse's aide in 2006, defendant raped a
90-year-old Alzheimer's patient in her nursing home. The
victim reported the rape to nursing home staff. A physical
examination and rape kit revealed a laceration and the
presence of semen in her vagina. DNA testing confirmed that
defendant was the source of the semen. Defendant later
confessed, providing graphic details of the sexual assault.
He was arrested and proceeded to trial.
court attempted to schedule the case for trial on three
occasions. The first ended in a mistrial because of the
unavailability of a witness who had suffered a heart attack.
The second attempt was derailed by a blizzard. The third and
latest attempt proceeded without incident and, at the end of
the third day of trial, the court charged the jury.
jury began deliberating and sent out two notes that
afternoon. The first note requested "the definition of
the laws," defendant's "confessions," and
"the DNA results." The second note stated: "We
won't be able to reach a verdict on all 3 counts
today-Can we come back at 9:00 AM tomorrow please." The
court informed the parties of the contents of the notes,
responded to the first note without objection, and instructed
the jury to break until the next morning.
jury resumed deliberations the next morning and, that day,
the court addressed three more notes requesting legal
instruction, testimony readbacks, and exhibits. The court
read each note into the record before responding. Shortly
before 5:00 pm, the court received a sixth and seventh note
from the jury. The sixth note stated: "We have made a
decision on the Third Count we are having hard time with 1
and 2 just giving you are [sic] status." The seventh
note-the note at issue in this case-stated: "We have
arrived on decision on 2 and 3. [B]ut we have a lot of work
to do on #1. [D]on[']t see it being quick. Not sure what
do to. We ars [sic] starting to make way." The record
reflects that both of these notes were marked as court
exhibits in the presence of counsel.
court then brought the jury back into the courtroom and, with
all parties present, stated: "I have received a note
[jury note seven], which I have marked as Court Exhibit
Number 9, and I will not read that into the record, but
I'm sure you know what it says." The court then
encouraged the jury to continue deliberating-stating,
"we as a group would like you to keep working"-and
asked the jurors to indicate whether they would like to
continue for another hour that evening, or break for the day
and resume deliberations in the morning. Defense counsel did
not object. In response, the jury sent out a note asking to
adjourn until the following morning.
next day, the jury sent out four more notes containing
requests for legal instruction. The court read each note into
the record and provided responses without objection. That
afternoon, the jury reached a unanimous verdict. Defendant
was convicted of first-degree rape, first-degree sexual
abuse, and second-degree endangering the welfare of a
vulnerable elderly person. He was sentenced to twenty-five
appealed, asserting a Brady violation, a
Rosario violation, and a Confrontation Clause
violation. The Appellate Division affirmed the judgment
(People v Morrison, 90 A.D.3d 1554');">90 A.D.3d 1554 [4th Dept 2011]),
and this Court denied defendant's application for leave
to appeal (19 N.Y.3d 1028).
years after the conclusion of his trial, defendant petitioned
for a writ of error coram nobis, raising, for the first time,
his jury note claim. The Appellate Division determined that
"the issue may have merit" and vacated its prior
order (People v Morrison, 128 A.D.3d 1424, 1425 [4th
novo consideration of the appeal, the Appellate Division,
with one Justice dissenting, reversed the judgment, holding
that the trial court's failure to advise counsel on the
record of the contents of jury note seven was a mode of
proceedings error warranting a new trial (see People v
Morrison, 148 A.D.3d 1707');">148 A.D.3d 1707 [4th Dept 2017]).
Specifically, the majority determined that note seven
"was a substantive jury note requiring notice to defense
counsel," and that, by "failing to advise counsel
on the record of the contents" of the note, the trial
court "violated a core requirement of CPL 310.30"
(id. at 1708).
Justice dissented, concluding that the jury note at issue was
"ministerial in nature"-not a substantive
O'Rama error-and therefore defendant was
"required to preserve his challenge to County
Court's handling of that jury note" (id. at
1709 [Peradotto, J., dissenting]). The ...