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People v. Morrison

New York Court of Appeals

June 28, 2018

The People & c., Appellant,
William Morrison, Respondent.

          Hannah Stith Long, for appellant.

          Mary R. Humphrey, for respondent.


         The order of the Appellate Division should be affirmed.

         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 N.Y.3d 534, 538 [2016], rearg denied 28 N.Y.3d 944');">28 N.Y.3d 944 [2016]; People v Nealon, 26 N.Y.3d 152, 156-157 [2015]). "[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 [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 N.Y.3d 986');">23 N.Y.3d 986');">23 N.Y.3d 986');">23 N.Y.3d 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 N.Y.3d 852');">13 N.Y.3d 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 N.Y.3d 294, 300 [2014], rearg denied 24 N.Y.3d 1216');">24 N.Y.3d 1216 [2015]; see People v Parker, __ N.Y.3d __ [decided today]).

         The jury note marked as Court Exhibit 9, which is the only note at issue on this appeal, was not ministerial [1]. 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 [1996], quoting People v Harris, 76 N.Y.2d 810, 812 [1990]) of which the trial court had no obligation to provide meaningful notice to counsel (see People v Wallace, 27 N.Y.3d 1037, 1039 [2016]; Nealon, 26 N.Y.3d at 161; People v Ochoa, 14 N.Y.3d 180, 188 [2010]). 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.

         To the 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 [2007]).

          DiFIORE, Chief Judge (dissenting):

         For the 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 [1991]). 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 [2003]). Thus, I also join Part IV of Judge Garcia's dissenting opinion.

          GARCIA, J. (dissenting):

         Defendant 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 __, __ [2018] [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.

         Rather 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 [2014] [Smith, J., concurring]). And it serves only to undermine the important, fundamental purposes of our preservation rule.

         The 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.


         While 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.

         The 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.

         The 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.

         The 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.

         The 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.

         The 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 years' imprisonment.

         Defendant 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).

         Eight 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 Dept 2015]).

         Upon de 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).

         One 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 ...

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