People v. JohnsonPeople v. Johnson
Garry, P.J.
Appeal from a judgment of the Supreme Court (Schick, J.), rendered January 26, 2017 in Sullivan County, upon a verdict convicting defendant of the crime of predatory sexual assault against a child.
Defendant was charged with predatory sexual assault against a child after the victim disclosed that defendant had sexually assaulted her on multiple оccasions, beginning in 2011, when she was 10 years old, and continuing until May 2014. Following a jury trial, defendant was convicted as charged. County Court (LaBuda, J.) denied defendant‘s motion to set aside the verdict pursuant to
Defendant contends that reversal is required because of Cоunty Court‘s error in handling a jury note. It is well established that a trial court‘s “core responsibility under [
Here, on the final morning of the trial, following summations and instructions, the jury retired to begin its deliberations. Immediately thereafter, while preparing to leave for a lunch
It is the trial court‘s “affirmative obligation” to establish on the record that meaningful notice of a jury inquiry has been provided to counsel (People v Silva, 24 NY3d at 300; accord People v Morrison, 32 NY3d at 952), and “we cannot assume that the omission was remedied at an off-the-record conference” to which “the transcript does not refеr” (People v Walston, 23 NY3d 986, 990 [2014]). Thus, reversal is required if the record does not expressly establish that meaningful notice was given, even when there is reason to infer that such notice did, in fact, occur (see People v Parker, 32 NY3d at 60). Here, however, we are confronted with a different situation — not only is there no indication that notice was given, on or off the record, but there is also no clear indication as to whether the note wаs ever conveyed to County Court or whether the court had any reason to suspect its existence.
In our view, it would be unreasonable to find that a trial court incurs a core responsibility to handle a jury note according to the procedures laid out in People v O‘Rama (78 NY 270 [1991], supra) if the court neither knows that the note exists nor has any reason to suspect that it might. The Court of Appeals has advised that, “[i]f there [is] uncertainty regarding the number of notes that [have] been forwarded during deliberations, the best practice [is] for the judge to inquire before the verdict [is] announced” (People v Silva, 24 NY3d at 300-301). Such a remedy will be effective where — as was apparently the case in Silva — the numbering of a series of court exhibits, a gap in sequence or some other irregularity provides a reason for uncertainty about jury notes. However, if nothing transpires to suggest to a trial court that а jury note that has not been accounted for may exist, no uncertainty arises, and there is no apparent reason to inquire. A rule by which a court could fail to comply with its core responsibilities and commit a mode of proceedings error by failing to ask a jury whether there are any outstanding notes, even when it has no reason to suspect that such notes might exist, would amount to a requirement that it is a core responsibility of every trial court to make that inquiry of every jury in every trial, just in case — an obligation that our law has never imposed, and that seems to bear little relationship to the underlying purposes that motivate the O‘Rama rule. In the absence of such a requirement, when a record is so sparse or so ambiguous that it is impossible to tell whеther a trial court knew or even had reason to know that a jury note was outstanding, it is likewise impossible to determine whether the trial court‘s responsibilities pursuant to
We are confronted with such a record here. The People argue that the note was marked and received just before the lunch break, when counsel and County Court were still present. The
We find this case similar to People v Meyers (___ NY3d ___, 2019 NY Slip Op 03658 [2019]), in which the Court of Appeals addressed the circumstance where a purported jury note that had been marked аs a court exhibit was discovered in the court file after the trial, presenting circumstances suggesting that it may have been a draft that the jury discarded or chose not to submit to the trial court. Thе Second Department held the appeal in abeyance and remitted the matter to the trial court for a reconstruction hearing to assess the related circumstances and determine whether the document was, in fact, a jury note (People v Meyers, 148 AD3d 1057, 1057 [2017]). The trial court conducted the hearing and determined that the document “was a draft or derelict note that was discarded by the jury and never submitted to the court” (People v Meyers, 2019 NY Slip Op 03658 at *2). The Court of Appeals affirmed, noting that the purpose of the reconstruction hearing was not to determine whether counsel had received meaningful notice — an objective for which such hearings are impermissible (see People v Parker, 32 NY3d at 62) — but instead, to determine whether the document was a jury request within the scope of
Here, as in Meyers, we are presented with a scanty and ambiguous record, precluding this Court from determining whether County Court‘s core responsibilities were triggered by its knowledge of the nоte or by circumstances that should have alerted the court to its presence. Accordingly, we remit the matter for a hearing to assess the circumstances pertaining to the evеnts at trial during the jury‘s deliberations and the acceptance of its verdict, including the transmission, receipt, marking and communication to the court of all three notes, and for a report to this Court setting out the court‘s findings. We will hold the appeal in abeyance and decide no other issues pending the timely completion of that process.
Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur.
ORDERED that the decision is withheld, and matter remitted to the Supreme Court for further proceedings not inconsistent with this decision.