FAHEY, J.
On this appeal, we are asked to decide whether a trial court commits a mode of proceedings error when the court fails to discuss a substantive jury note with counsel outside the presence of the jury, but reads the note into the record in the presence of the parties, counsel, and the jury before providing a response. While that departure from the O'Rama procedure (see People v O'Rama, 78 N.Y.2d 270, 277-278 [1991]) is generally error, our precedent compels the conclusion that it is not a mode of proceedings error, and the preservation rule therefore applies.
In September 2007, defendant and an accomplice severely beat another man and stole his cell phones, cash, and other personal items. Defendant was charged with robbery in the first degree, robbery in the second degree, assault in the second degree, and criminal possession of stolen property in the fifth degree. Defendant proceeded to a jury trial in Supreme Court, Queens County. During deliberations, the jury sent three notes to the court that concern us on this appeal.
The jury's third note stated: "Clarify if [first] count robbery in first degree includes assault and [second] count robbery in second degree does not include assault. Does the degree of injury count towards [first] or [second] degree?" An off-the-record sidebar discussion was held before the court marked the note as court exhibit 4. The court again recalled the jury into the courtroom and read the note into the record in the presence of the parties, counsel, and the jury. The court then provided a response to the jury's inquiry, and after the foreperson stated that the court had answered the jury's question, the jury returned to deliberations. Defendant again did not object, either to the court's procedure or to its response to the jury's note.
The next note sent by the jury stated that the jury had reached a verdict. Defendant was found guilty as charged.
On appeal, the Appellate Division unanimously reversed the judgment (116 A.D.3d 886 [2d Dept 2014]), holding that "Supreme Court violated the procedure set forth in O'Rama by reading the contents of the jury note for the first time in front of the jury and immediately providing a response" (id. at 887). The Court further held that because the record failed to demonstrate that the trial court complied with "its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal . . ., despite defense counsel's failure to object to the Supreme Court's handling of the jury's notes" (id. at 888 [internal quotation marks omitted]).
A Judge of this Court granted the People leave to appeal (23 N.Y.3d 1065 [2014]). We now reverse.
CPL 310.30 requires a trial court to provide "notice to both the people and counsel for the defendant" of a substantive jury
We made clear in O'Rama that a trial court does not satisfy its responsibility to provide counsel with meaningful notice of a substantive jury inquiry by summarizing the substance of the note (see id. at 275, 278-279). We held that "[a] court can
Since O'Rama was decided, we have continued to hold that when a trial court paraphrases a jury note or omits a key term, thereby failing to provide counsel with meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection (see People v Walston, 23 N.Y.3d 986, 990 [2014]; People v Tabb, 13 N.Y.3d 852, 853 [2009]; People v Kisoon, 8 N.Y.3d 129, 135 [2007]). This rule is sensible because counsel cannot be expected to object to the court's response to the jury or to frame an intelligent suggested response if counsel lacks knowledge of the specific content of a substantive jury note. In other words, a trial court's "failure to read [a] note verbatim deprive[s] counsel of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response" (Kisoon, 8 NY3d at 135). Thus, "[w]here the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . preservation is not required" (Walston, 23 NY3d at 990).
Here, by contrast, defendant does not dispute that his trial counsel was "apprised of the specific, substantive contents of the note[s]," inasmuch as the court read the precise contents of the notes into the record in the presence of counsel and the jury before responding to the jury (id.). Nevertheless, the trial court deviated from the O'Rama procedure by failing to first read the notes into the record in the presence of counsel and to provide counsel with "a full opportunity to suggest appropriate responses" outside the presence of the jury (O'Rama, 78 NY2d at 277-278). Although off-the-record sidebar discussions were held before the court recalled the jury, "we cannot assume that [an O'Rama error] was remedied at an off-the-record conference" (Walston, 23 NY3d at 990). We therefore assume for purposes of this appeal that no discussion of the jury's notes occurred between the court and counsel before the court recalled the jury into the courtroom.
The issue on this appeal is not whether the trial court deviated from the O'Rama procedure. Rather, the issue is whether this particular deviation from the O'Rama procedure—the trial court's failure to have a discussion with counsel about the content of the notes and the court's intended response before recalling the jury into the courtroom and providing a response—falls within the "tightly circumscribed class" of errors known as mode of proceedings errors, which are not subject to the preservation requirement (People v Kelly, 5 N.Y.3d 116, 119-120 [2005]). Our precedent compels the conclusion that this particular deviation from the O'Rama procedure was not a mode of proceedings error, and that counsel was required to object to preserve any claim of error for appellate review.
Our analysis begins with People v Starling (85 N.Y.2d 509 [1995]). In Starling, defense counsel requested certain jury instructions during the charge conference pertaining to intent, which requests the trial court denied (see id. at 513). During deliberations, the jury sent out two notes requesting further legal instruction on the definition of intent (see id. at 514). "On both occasions, the court read the note verbatim in the presence of the jury, counsel and defendant and proceeded to reread the same definition of intent it had previously given" (id.). Thus, the court committed the same departure from O'Rama that is at issue here: the court did not discuss the notes or its intended response with counsel before recalling the jury. In Starling, as is the case here, defendant did not object, either "to the manner of proceeding or to the substance of the court's responses" (id.).
On appeal, this Court upheld the judgment of conviction, concluding that
We noted that "defense counsel was given notice of the contents of the jury notes and had knowledge of the substance of the court's intended response—a verbatim rereading of the intent charge previously given on several occasions" (id.). We therefore held that "counsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable" by this Court (id.).
More recently, the Court decided People v Ramirez (15 N.Y.3d 824 [2010]). In a brief memorandum decision, we wrote that "although the record is silent as to whether Supreme Court showed the jury note to counsel as required in [O'Rama], defense counsel had notice of the contents of the note and the court's response, and failed to object at that time, when the error could have been cured" (id. at 825-826). Citing Starling, we therefore held that defendant's claim was "unpreserved for review" (id. at 826, also citing People v Kadarko, 14 N.Y.3d 426, 429-430 [2010]).
We reiterated this holding in People v Williams (21 N.Y.3d 932 [2013]). In that case, as in this one, the jury sent a note requesting "clarification of a legal term, and after asking the jury to return to the courtroom, the court read the note out loud before responding directly to the jury" (id. at 934). On appeal, we rejected the defendant's claim "that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of [O'Rama]" (id. at 934-935). Rather, citing Ramirez and Starling, we held that "[w]here, as here, defense counsel had notice of a jury note and failed to object . . . when the error could have been cured, lack of preservation bars the claim" (id. at 935 [internal quotation marks omitted], also citing People v Ippolito, 20 N.Y.3d 615 [2013]).
A few months later, we decided People v Alcide (21 N.Y.3d 687 [2013]). In that case, the jury requested readbacks of the testimony of the first officer to arrive at the crime scene and a bystander who witnessed the shooting (see id. at 690).
The Judge then explained that during the readbacks, he would read the direct examination questions and the court reporter would read the witness's responses, and he would then reverse that procedure for the cross-examination testimony (see id.). "Neither party objected to this procedure for handling the readbacks" (id.).
On appeal, we rejected the defendant's claim that a mode of proceedings error had occurred because the court failed to provide counsel with meaningful notice (see id. at 691-694). We held that Starling controlled, inasmuch as the two jury notes "were disclosed in their entirety in open court before the trial judge responded to them" (id. at 694). We further noted that "the judge explained exactly how he was going to conduct the readbacks" (id.). Citing Ramirez, we held that "[i]f defense counsel considered the judge's intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so" (id.).
These four cases are controlling here. In the present case, the trial court similarly departed from the O'Rama procedure by failing to have a discussion with counsel about the notes before recalling the jury into the courtroom, thereby depriving counsel of an opportunity to hear the precise contents of the notes and to suggest responses outside the presence of the jury. Nevertheless, as was the case in Starling, Ramirez, Williams, and Alcide, the trial court here read the precise contents of the notes into the record in open court in the presence of counsel, defendant, and the jury before providing its response. Defense counsel here similarly failed to object, either to the trial court's procedure or to the court's responses to the jury.
By reading the notes verbatim into the record in the presence of counsel and the jury, the trial court complied with its core responsibility to give counsel meaningful notice of the jury's notes (see Alcide, 21 NY3d at 694; Williams, 21 NY3d at 934-935; Ramirez, 15 NY3d at 825-826; Starling, 85 NY2d at 516). Thus, no mode of proceedings error occurred, and counsel was required to object in order to preserve a claim of error for appellate review. "Where, as here, defense counsel had notice
To the extent defendant contends that these four cases are distinguishable because the jury notes at issue there merely required a ministerial response, we disagree. The O'Rama procedure is implicated whenever the court receives "a substantive written jury communication" (O'Rama, 78 NY2d at 277 [emphasis added]). Conversely, the O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response (see People v Mays, 20 N.Y.3d 969, 971 [2012]; People v Ochoa, 14 N.Y.3d 180, 188 [2010]). Nevertheless, we did not characterize the jury notes at issue in Starling, Ramirez, Williams, or Alcide as ministerial, and therefore our analysis did not turn on any distinction between substantive and ministerial jury requests. Indeed, in Williams, the jury requested "clarification of a legal term" (Williams, 21 NY3d at 934), a request that cannot be characterized as a ministerial inquiry for which the trial court had no obligation to comply with the O'Rama procedure.
Rather, the holding to be distilled from these four cases is that not every departure from the O'Rama procedure, even in the context of a substantive jury inquiry, is a mode of proceedings error. Where, as here, counsel has meaningful notice of a substantive jury note because the court has read the precise content of the note into the record in the presence of counsel, defendant, and the jury, the court's failure to discuss the note
Our jurisprudence seeks to ensure that all parties are on notice as to what the jury is asking. Without meaningful notice of the contents of a jury note, counsel cannot protect the interests of each party before the court. What to do with this knowledge is a decision for counsel to make.
In this and similar scenarios, counsel has knowledge of three key facts: (1) the precise content of the jury's note, which was read verbatim into the record in the presence of counsel and the jury; (2) that counsel has not had an opportunity to provide the court with input on its response to the jury's inquiry; and (3) the actual content of the court's response to the jury, which counsel is hearing in open court as the court provides its response to the jury. Counsel therefore has all the knowledge required to make an objection, either to the court's deviation from the O'Rama procedure or to the court's response to the jury, or both.
If we held this particular departure from O'Rama to be a mode of proceedings error, however, it would be unwise for counsel to object and seek correction of the error, inasmuch as in the absence of a correction of the error on the record, the defendant would automatically receive an appellate reversal and a new trial. Recognizing a mode of proceedings error in this situation would have precisely the opposite effect from what this Court intended in O'Rama: "to maximize participation by counsel" (O'Rama, 78 NY2d at 278).
We disagree with defendant that requiring counsel to object to this particular deviation from the O'Rama procedure imposes an unreasonable burden on counsel due to the pressures of the situation and the risk that counsel will draw the ire of the court or the jury. While we do not discount the difficulty of raising a timely objection while under the pressures
"[T]hough it hardly needs restating, we underscore the desirability of adherence to the procedures outlined in O'Rama" (Kisoon, 8 NY3d at 135). The O'Rama procedure was designed to "maximize participation by counsel at a time when counsel's input is most meaningful, i.e., before the court gives its formal response" (O'Rama, 78 NY2d at 278). Indeed, if counsel here had objected to the court's deviation from the O'Rama procedure or had sought an opportunity to provide input outside the presence of the jury, and the court had refused, the court's refusal would be error (see People v Cook, 85 N.Y.2d 928, 930-931 [1995]). We merely reiterate, consistent with our precedent, that this particular deviation from the O'Rama procedure is not part of the narrow class of mode of proceedings errors for which preservation is not required.
In light of our holding that no mode of proceedings error has occurred on the face of this record, we do not address the People's alternative contention that the Appellate Division erred in refusing to consider the resettled record.
Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeal to that Court.
Chief Judge LIPPMAN (dissenting).
A deliberating jury's request for supplemental instruction or information we have often observed may well mark a trial's turning point (see e.g. People v Kisoon, 8 N.Y.3d 129, 134-135 [2007]; People v Ciaccio, 47 N.Y.2d 431, 436 [1979]). For this reason, the law, both statutory and judge-made, places upon trial courts in receipt of post-submission jury inquiries of a substantive sort special non-waivable responsibilities in default of which an ensuing conviction will in this state, without more, be rendered infirm: the court must respond to the jury meaningfully, and preparatory to doing so must take steps to assure that the response given is the product of a process in which the defendant has had a full opportunity to participate with the assistance of counsel (CPL 310.30; People v O'Rama, 78 N.Y.2d 270, 279-280 [1991]; and see People v Silva, 24 N.Y.3d 294, 299 [2014]; People v Alcide, 21 N.Y.3d 687, 692 [2013]). This appeal asks what process is minimally adequate to satisfy the latter, constitutionally grounded (see United States v Robinson, 560 F.2d 507 [1977
The majority has responded, purportedly under the compulsion of this Court's precedents, that a court discharges its "core" obligation to afford a defendant and his or her attorney meaningful notice of a substantive jury inquiry simply by reading the note verbatim in open court with the parties, counsel and the jury present. And, it is true that there are cases in which we have held that that is enough. But we have never, until today, said that it is always enough. That development is, in my view, a major and imprudent step, not only uncompelled by, but significantly at odds with our jurisprudence, which has, at least since our 1991 decision in People v O'Rama (78 N.Y.2d 270 [1991]), been rooted in the principle that the notice of a substantive jury inquiry mandated by CPL 310.30 must, even if not given in strict accordance with a prescribed protocol, be notice "calculated to maximize participation by counsel at a time when counsel's input is most meaningful, i.e., before the court gives its formal response" (O'Rama, 78 NY2d at 278 [emphasis supplied]).
The majority's assertion that the O'Rama "goal of maximizing counsel's participation" (id. at 279) will invariably be met by the trial court's reading of the note in open court just prior to delivering its response, since the defendant and his attorney will at the instant of audition have "all the knowledge required to make an objection" (majority op at 162), betrays a serious misconception of what maximal participation by counsel entails at this uniquely crucial juncture of a criminal trial. The core obligation recognized by O'Rama is not that of enabling an objection, but of enabling counsel's full substantive participation, and to that end O'Rama prescribed not a one, but a four-step protocol to assure, without the need for an objection in the presence of the jury, counsel's inclusion in the process of shaping a meaningful response to the jury's query.
The procedure generally required by O'Rama was not a random, overwrought product of judicial imagination run amok, but one that long experience had shown to be ordinarily essential to the honor of a defendant's basic rights of presence, participation and representation at material stages of the trial; the identical procedure had been prescribed a decade before in United States v Ronder (639 F.2d 931, 934 [2d Cir 1981]) as the "proper practice" to satisfy settled law that "messages from a jury should be disclosed to counsel and that counsel should be
It is true that O'Rama recognized that strict adherence to its notice protocol might not always be practicable or advisable and accordingly that trial courts possessed discretion to employ modified procedures "equally conducive to participation by defense counsel" (id. at 278). But this dispensation was made available only where such a departure was supported by "unique articulable circumstances" (id.). The majority fails to identify any "unique articulable circumstances" to support the presently challenged departure, and it is obvious that the truncated procedure employed by the trial court was not "equally conducive to participation by defense counsel" as the one prescribed in O'Rama.
The majority defends its dramatic paring of the O'Rama's core notice obligation by positing that, of the steps in the notice protocol, only the reading of the note to counsel is essential to counsel's participation, at least to the extent of lodging an objection. But if all that was required to discharge the notice obligation imposed by CPL 310.30 and O'Rama was objection-enabling disclosure, O'Rama itself would have been decided differently, as would Kisoon and its companion case People v Martin (8 N.Y.3d 129 [2007]). In each of those cases, counsel knew that there was a jury note the full text of which had not been disclosed and could have objected to the non-disclosure of the note's full content (see O'Rama, 78 NY2d at 275; Kisoon, 8 NY3d at 132; Martin, 8 NY3d at 133). What these cases tell us,
Conceptually, of course, whether an error is deemed to compromise the basic structure of a trial and thus to qualify as one affecting the mode of proceedings cannot depend upon whether it involves a deviation as to which an objection is capable of being made. Mode of proceedings errors are by reason of their fundamental incompatibility with essential process nonwaivable (see People v Patterson, 39 N.Y.2d 288, 295 [1976]). Neither the gravity of such error nor the consequently primary judicial obligation to avoid its commission is logically diminished or relieved by reason of the circumstance that a defendant is able to, but does not contemporaneously, protest its occurrence.
None of the cases upon which the majority relies is properly cited for the broad contrary proposition that a trial court's core
These cases presented situations in which counsel knew what the court's response would be and it was objectively evident that, although the inquiries were substantive, the responsive options were so limited as to render counsel's participation in addressing them minimally useful.
The majority expresses trepidation that treating the present species of O'Rama departure as a mode of proceedings error would not in the end maximize, but create a disincentive to participation by defense counsel, since freed by the mode of proceedings doctrine from the need to object in order to preserve an O'Rama claim for appellate review, counsel could and would sit silently and allow the court to err so as to assure a reversal on appeal in the event of a conviction. But apart from the lack of any empirical basis for the prediction that defense counsel generally would elect not to zealously represent their clients at trial in order to bank an appellate reversal years down the line, the majority's concern demonstrates a confusion over whose conduct the mode of proceedings doctrine is intended to regulate. It is not counsel's conduct that is the
The most effective way of both eliminating gamesmanship from, and assuring the full participation of counsel in, the critical phase of the trial initiated by a substantive post-submission jury inquiry is for appellate courts generally to demand scrupulous adherence to the not overly complex mode of proceeding prescribed in O'Rama. To the extent that we narrow the application of the mode of proceeding doctrine in this context, experience teaches that the price will be the toleration of a very serious species of error typically situated at the crux of a criminal trial—error which will predictably flourish in the ample shade of the preservation and harmless error doctrines. As the Appellate Division evidently understood, a dominant concern of this Court for the last 25 years has been to avoid such a degradation of essential process. Today's decisions, resting on a fairly obvious overreading of four fact-sensitive decisions to express a severe limitation of appellate oversight of the process following from a trial court's receipt of a substantive jury inquiry, lose sight of, and break with that jurisprudential context. And although the result of doing so in these cases may seem satisfying, there is good reason to fear that longitudinally this modern approach will not enhance, but impair the quality of the adversary process and the reliability of its outcome. For these reasons I dissent and would affirm the order of the Appellate Division.
Judges PIGOTT, ABDUS-SALAAM and STEIN concur; Chief Judge LIPPMAN dissents and votes to affirm in an opinion in which Judge RIVERA concurs.
Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that court.
The dissent asserts that these four cases are distinguishable because, in each case, "counsel knew what the court's response would be and it was objectively evident that, although the inquiries were substantive, the responsive options were so limited as to render counsel's participation in addressing them minimally useful" (dissenting op at 167). While that characterization may be accurate in Starling and Alcide, we respectfully disagree that the predictability of the court's response is the common thread in all four cases. Rather, as we read these four cases, the common thread is that "the court read[] the `entire content' of the note verbatim in open court prior to responding to the jury," and thus the departure from the O'Rama procedure was "subject to our rules of preservation" (Walston, 23 NY3d at 989).