People v Parker (
| People v Parker |
| June 28, 2018 |
| Rivera, J. |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, November 7, 2018 |
[*1]
| The People of the State of New York, Respondent, v Lawrence Parker, Appellant. |
| The People of the State of New York, Respondent,
v Mark Nonni, Appellant. |
Argued June 5, 2018; decided June 28, 2018
People v Nonni,
Defendants 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 (
[*2]Defendants were indicted and jointly tried for various crimes arising from the violent theft of several thousand dollars at a{**
At 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.
Three 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.[FN1]
While 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.
Based on the evidence at the hearing, the court denied defendants' respective motions to suppress. The court credited{**
On the 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 25 minutes later, requested testimony of the complainant and his wife.
The 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.
When 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.
[*3]After 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 court.
The Appellate Division affirmed the convictions with two Justices dissenting (People v Nonni,
Defendant Nonni argues that his mere presence on the commercial property did not provide a founded suspicion of criminal activity, and so the police action in pursuing and stopping him was unlawful at its inception. Defendant Nonni alternatively claims that, even if the initial stop was justified, the searches of his back pocket and the envelopes found therein were unconstitutional and the court should have suppressed the fruits of those searches. Defendant Parker does not contest the lower courts' conclusion that the officers had a common-law right to inquire when they first approached him on the private driveway. Instead, he argues that there is no support for the court's determination that the police had reasonable suspicion to stop and detain him, as he merely briskly walked, rather than ran, away from them.
As a threshold matter, whether the particular circumstances of defendants' cases gave rise to a founded or reasonable suspicion constitutes a mixed question of law and fact, which is beyond our review if there is record support for the courts' conclusion that the officers' actions were justified (see People v McRay,
Police encounters with the public are evaluated under the four-tiered framework established in De Bour. At the first level, law enforcement may engage in minimally-intrusive questioning to request information "when there is some objective credible reason for that interference not necessarily indicative of criminality" (De Bour,
Here, for both defendants, the police had a founded suspicion of criminal activity to support a common-law right of inquiry. The police received a radio transmission of a burglary in progress, and their encounter with defendants at the reported address occurred a mere five minutes later. The officers first saw defendants exiting private property, the scene of a suspected crime. The officers observed no other persons or cars in the secluded, residential area, and it was early in the morning on a federal holiday. In accordance with De Bour, those circumstances were sufficient to justify the officers asking defendants what they were doing and where they were going, and to continue inquiring when defendants did not respond after the officers identified themselves. Further, the officers' testimony, credited by the court, that defendant Nonni then "actively fled from the police," combined with the specific circumstances observed by the officers during their initial encounter with defendants, provides sufficient record support for the court's determination that there was reasonable suspicion of criminal activity to justify defendant Nonni's pursuit, forcible stop, and detainment (see People v Woods,
Defendant Parker argues that, regardless of defendant Nonni's conduct, the police did not have reasonable suspicion to{**
Contrary to defendant Parker's claim, the Appellate Division did not "improperly expand[ ] the longstanding rules" set forth in De Bour by considering defendant Nonni's flight from the police in assessing defendant Parker's actions. It was not "defendant's flight in response to an approach by the police" alone, but rather its combination "with other specific circumstances indicating that the suspect may be engaged in criminal activity," that made this police intrusion allowable (Woods,
Defendant Nonni's alternative claim that the searches of his internal coat pocket and the envelopes found inside were unconstitutional is unpreserved. A question of law is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same" (CPL 470.05 [2]). "[A] general objection—such as that contained in defendant's omnibus motion—is sufficient to preserve an issue for our review when the trial court 'expressly decided the question raised on appeal' " (People v Graham,
Defendant Nonni now argues that, even assuming the police stop was lawful, the internal searches were unconstitutional,{**
Nor did the trial court expressly decide this issue (see CPL 470.05 [2]). The grounds for the court's suppression determination are vague: the court simply concluded that, after defendant Nonni was handcuffed and the knife inside his backpack cut the officer, the seizure of the property was "justified and lawful." Inasmuch as defendant Nonni did not argue below that the internal searches were invalid and contested only the legality of the stop, the court's statement that the seizure was "justified and lawful" cannot be read, as defendant suggests, to have expressly decided the question. Therefore, defendant Nonni's argument is not reviewable under CPL 470.05 (2).[FN2]
Defendants also claim that the trial court failed to provide notice to defense counsel of two substantive jury notes, and that under our law this constituted a mode of proceedings error requiring reversal of their convictions and a new trial. The People counter that defendants' claim is unpreserved, and, alternatively, that the record suggests counsel received notice and therefore a reconstruction hearing should be ordered.
CPL 310.30 requires that, in response to a jury request for additional information or instruction "with respect to any . . . matter pertinent to the jury's consideration of the case," the trial court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, . . . must give such requested information or instruction as the court deems proper." In People v Mack, we reaffirmed that CPL 310.30 "imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice{**
Here, on the second day of deliberations, the jury sent out three substantive notes. In the presence of the jury, the court acknowledged receipt of all three, and proceeded to read the first note and provide a response. There is no record, however, indicating that counsel was informed of the precise contents of the other two notes (see O'Rama,
The People argue that the record suggests the court informed defense counsel of the existence of the notes and their contents, and thus counsel had sufficient opportunity to object. Yet, as the People concede, the court did not read into the record the contents of the notes at issue here.[FN3] Further, there is no hint in the record that the court provided counsel the contents of the notes; rather, an inference may be drawn to the contrary. Tellingly, while the court had read other notes, and had confirmed that counsel had read their contents on the record in the past, there is no such record regarding these two substantive notes.{**
Furthermore, we have explained that an insufficient record cannot be overcome with speculation about what might have occurred.[FN4] "The 'presumption of regularity' cannot salvage an O'Rama error of this nature" (People v Silva, 24 [*6]NY3d 294, 300 [2014] [citation omitted], quoting People v Velasquez,
In advocating that we remit to the trial court for a reconstruction hearing, the dissenters and the People ignore our case law.[FN6] Indeed, we rejected the same argument in [*7]Walston, and there is no basis to treat defendants' cases differently.[FN7] Moreover, {**
Accordingly, in each case, the Appellate Division order should be reversed and a new trial ordered.
Chief Judge DiFiore (dissenting). The essential holding of People v O'Rama (
Facts matter, and the relevant facts are as follows. In its final instruction, the court instructed the jurors that should they desire to re-hear any portions of the testimony, they could request a readback. The court specifically advised the jury that, because readbacks are time-consuming, they should "pinpoint and describe exactly that part of the testimony that [they were] interested in hearing." During deliberations, the jury sent out a series of notes. The first jury note, marked as court exhibit 7, contained a request for police reports and arrest photos for both defendants. The court did not read the contents of the note into the record but confirmed, on the record with both counsel, that each had "seen the note requesting exhibits" and that the exhibits had been sent to the jury. At the end of that day, the court excused the jury and adjourned the matter until the next morning.
The transcript of the following day begins suddenly with the court and the parties back on the record and three additional jury notes (notes two, three and four) immediately marked as court exhibits. Jury note two (court exhibit 8), which is not at issue here, was timed at 11:16 a.m. That note requested several things: an exhibit, the definitions of certain charges and a readback of portions of police officer testimony. Note three (court exhibit 9), timed at 11:30 a.m., requested a readback of the testimony of the fingerprint expert concerning "the type of surfaces needed to get an accurate print." Note four (court exhibit 10), timed at 11:55 a.m., requested a readback of the testimony from the caretakers of the property concerning who was able to "rent the party room."
Outside the presence of the jury, the court stated for the record that three additional notes had been received and would "be read[ ] into the record after the jury [was] seated." The {**
After the parties agreed upon the readbacks for note two, the court brought the jury back into the courtroom. The court then stated "I have three notes from you and I just want to make sure that all of us remember what was in the notes so I'm going to review them, I'll read them back to you so that everyone will have a clear memory of what you've originally requested." The court then read note two into the record verbatim and told the jury "let's deal with that note first and we'll leave the other two for after lunch. One at a time." After providing the requested readbacks for note two, the court told the jury that "[t]he additional testimony that you requested in the other two notes, we'll respond to that after lunch." The court advised the jury that it could continue deliberating through the lunch recess and that they would "continue with the readback" after lunch.
When the parties came back on the record after the lunch recess, the court, in the intervening period, had received a fifth jury note indicating that the jury had reached a verdict. The court confirmed with counsel for the record that they had seen the note and that it had been marked as a court exhibit. The court then brought the jury back to the courtroom and accepted the verdict. There was no further discussion of the two outstanding notes requesting readbacks and there was no objection to the acceptance of the verdict.
Under CPL 310.30, the trial court has two distinct duties when handling substantive notes from a deliberating jury—first, it must provide meaningful notice to counsel of the actual, specific content of the note and second, it must provide a meaningful response to the jury's request (see CPL 310.30; O'Rama,
Recently, we have strayed from O'Rama's essential holding by elevating the court's obligation of affirmatively making a record adequate for appellate review over its fundamental responsibility to provide meaningful notice of the content of a jury's communication (see People v Silva,
Here, the record reveals that it was the trial court's procedure to first give notice of the jury notes to counsel at an off-the-record conference.[FN2] When responding to the note in the jury's presence, the trial court would then either [*11]read the note into the record verbatim or confirm with the attorneys on the record that they had seen the note. The record reflects that notes two, three and four were received by the court over a 41 minute interval and that all three notes were marked as court exhibits. In addition, the record demonstrates that the attorneys were aware of the content of note two, that there was an off-the-record discussion as to the proper response to that note before the parties went on the record, and that there was an on-the-record discussion as to when the court would respond to notes three and four. Given the narrow scope and relative insignificance of the requested readbacks in notes three and four, it is unsurprising that there was no discussion on the record as to the content of the court's intended response. Indeed, certain readbacks can be perfunctory in nature. Based on the above, there is a reasonable view of the record that the trial court did show notes three and four to the attorneys when{**
We have recognized in similar contexts that, where there is a significant ambiguity in the record, a reconstruction hearing is appropriate as we are not inclined to reverse trial verdicts on technical errors (see e.g. People v Velasquez,
{**
This case is distinguishable from our ruling in People v Silva, where we held that O'Rama errors had occurred where there was no response to certain jury notes before the jury delivered its verdict. In both Silva and its companion case, Hansen, we observed that the record was silent as to whether the court or the parties were aware of the notes before the verdict was taken (see
In sum, I would not hold that a mode of proceedings error occurred on the ambiguous records before us. Rather, these cases should be remitted to the Appellate Division for its consideration of the issue in the first instance.
Dissenting opinion by Garcia, J.
Garcia, J. (dissenting). I dissent for the reasons stated in my dissenting opinion in People v Morrison[*13] (32 NY3d 951 [2018] [decided today]).
Judges Stein, Fahey and Wilson concur; Chief Judge DiFiore dissents in an opinion, in which Judges Garcia and Feinman concur in a separate dissenting opinion by Judge Garcia.
In each case: Order reversed and a new trial ordered.
Footnote 1:At trial, the complainant testified that the burglars took three envelopes that he had marked with a red pen, and that each envelope contained $1,000.
Footnote 2:Defendants' remaining suppression arguments are unavailing on this appeal.
Footnote 3:When such circumstances arise, nothing prevents the prosecutor from alerting the court to the need to place the contents of the notes on the record.
Footnote 4:The Chief Judge's dissent describes the record as "ambiguous as to whether the actual content of the jury notes was given to counsel," but continues that "the record demonstrates there was an off-the-record discussion of the jury notes" (DiFiore, Ch. J., dissenting op at 66). There exists no record evidence that the notes were shown to counsel, only that counsel was made aware of the notes, and we have been clear that awareness of a note's existence is insufficient. We have also rejected speculation as a permissible method of filling in gaps in a record. The dissenters merely retread old ground and make arguments we have previously rejected (id. at 67 Garcia, J., dissenting op at 69, citing People v Morrison,
Footnote 5:The fact that the jury sent a note stating it had reached a verdict does not affect our analysis. The court failed to meet its first core responsibility with respect to the two notes by not providing the required notice, and the subsequent verdict does not negate that error. While a court's "violation of the meaningful response requirement does not constitute a mode of proceedings error" if "counsel has meaningful notice of the content of a jury note" (Mack,
Footnote 6:The Chief Judge also argues in dissent that reconstruction hearings are permissible in similar contexts to O'Rama hearings, and therefore should be permissible here (DiFiore, Ch. J., dissenting op at 67). Yet the cases on which that dissent relies are distinguishable: they address a defendant's right to be present at a Sandoval hearing and a robing room conference, rights that may be waived. There is no mechanism for waiving O'Rama notice, as one cannot waive an opportunity about which one was never informed (O'Rama,
Footnote 7:There exists no empirical evidence supporting Judge Garcia's suggestion of a widespread failure of our courts to comply with CPL 310.30 and O'Rama (see Garcia, J., dissenting op at 69, citing People v Morrison,
Footnote 1:Significantly, in O'Rama, we stated that we were following the "meaningful notice" procedure outlined in United States v Ronder (639 F2d 931, 934-935 [2d Cir 1981]). Federal courts have generally treated this type of error as a violation of a defendant's right to be present—including the right to have counsel be heard—and have applied a substantial compliance standard as well as harmless error analysis where the communication at issue did not prejudice the defendant (see United States v Martinez,
Footnote 2:Indeed, there can be no dispute that the extant transcript omits a series of events that occurred that morning—including convening the jury and sending them out to resume deliberations, the court notifying counsel that the jury notes were received, and the initial discussion among the parties of the testimony that would be provided in the readback after the notes were received. The application of the majority's per se reversal rule on this record ignores the realities commonly attending the trial process and, ironically, finds error in what may only be the court's failure to record the absence of error.
Footnote 3:It should be noted that counsel for appellants have not, despite a strong incentive to do so, represented to the Court that trial counsel did not receive notice of the contents of notes three and four. Rather, the only argument advanced in our appeal relates to whether the record evidences such notice. This argument is in keeping with the majority's per se rule, which allows counsel who receives meaningful notice of the content of a jury note "to sit idly by while error is committed" and then argue that the record does not reflect such error (see People v Patterson,
Footnote 4:The majority concedes that certain of this Court's recent cases have exalted the requirement of making an appellate record over the trial court's core obligation to provide meaningful notice as set forth in O'Rama (majority op at 61 n 6). We disagree that this exaltation diminished the precedential value of Caban, where the pivotal concern was that the intermediate appellate court was deprived of the opportunity to review an issue that has a significant factual component and was not raised before it.
Footnote 5:Although the Court rejected a similar argument in Silva (see