The People v. Vincent MeyersThe People v. Vincent Meyers
Submitted by Patrick Michael Megaro, for appellant.
Submitted by
MEMORANDUM:
The order of the Appellate Division should be affirmed. While preparing defendant’s appeal, counsel discovered a purported jury note, marked as Court Exhibit XIV, in the court file maintained by the County Clerk. Significant ambiguity existed in the record concerning the circumstances in which the exhibit was marked and entered into the court file, including ambiguity as to whether the jury sent the exhibit to the court or, instead, began drafting it but discarded it in favor of sending other, substantially similar notes. The purported note was sequentially marked after the jury note stating that the jury had reached a verdict and was duplicative of other jury notes undisputedly received and read into the record by the court. Further, no other reference to the exhibit existed on the record or in the court file. The Appellate Division directed Supreme Court to conduct a reconstruction hearing to clarify whether Exhibit XIV was, in fact, a jury note requesting further information or instruction from the court pursuant to
We recently held that where the record does not establish that counsel was provided meaningful notice of the contents of a substantive jury note, “the sole remedy is reversal and a new trial,” not a reconstruction hearing (People v Parker, 32 NY3d 49, 62 [2018]). However, the purpose of the reconstruction hearing at issue here was not to determine whether the court complied with the counsel notice requirements of
Less than a year ago, in People v Parker, we held that, in the absence of affirmative record proof that the trial court provided a verbatim account of every jury note, “the sole remedy is reversal and a new trial” (32 NY3d 49, 62 [2018] [emphasis added]). No matter how strongly the record suggested that defense counsel was, in fact, given meaningful notice of each note, reconstruction of the record is not permitted to ascertain the existence—or nonexistence—of error. Reversal, and only reversal, must result. That was our short-lived Parker rule.
Here, as in Parker, defendant asserted that the trial court failed to satisfy its meaningful notice requirement after defense counsel discovered a jury note that was never mentioned at trial. But unlike in Parker, the Appellate Division directed Supreme Court to conduct a hearing to “assess all the circumstances” regarding the inquiry (People v Meyers, 148 AD3d 1057, 1057 [2d Dept 2017]). Supreme Court then held a reconstruction hearing, where a number of witnesses testified: two jurors, the court clerk, the judge’s law secretary, defendant’s trial counsel, and the trial prosecutor. Following that hearing, Supreme Court concluded that the inquiry was “a derelict note discarded by the jury,” and therefore no error had occurred. The Appellate Division affirmed (162 AD3d 1074 [2d Dept 2018]).
With that knowledge now in hand, Parker’s application would yield an absurd result: automatic reversal of defendant’s convictions because of a jury note that was not properly read into the record, even though we now know—although we should not know (Parker, 32 NY3d at 62)—that it was not a jury note at all. Though I agree that we should avoid that senseless outcome, I do not agree that Parker’s per se reversal rule is somehow inapplicable. The trouble with Parker’s application stems not from the facts of this case; it stems from Parker itself.
I.
The Court’s dilemma in this case is a familiar one. In People v O’Rama, the Court first applied the “mode of proceedings” exception to cases involving deviations from
The results were harsh and widespread. Applying O’Rama, the Appellate Divisions began reversing convictions based on unpreserved claims in any case where the record failed to show adequate compliance with
Facing this backlash, the Court began to scale back O’Rama’s sweeping rule. In People v Nealon, for instance, we held that preservation was required where the trial court provided notice of the contents of a jury note, but failed to consult defense counsel before responding to the jury’s inquiry (26 NY3d 152, 160-162 [2016]). Similarly, in People v Mack, we rejected the defendant’s claim that a mode of proceedings error had occurred where defense counsel had meaningful notice of the jury’s inquiries, but the trial court accepted the jury’s verdict without first providing a response (27 NY3d 534, 537 [2016]). In both Nealon and Mack, we held that a defendant is required to preserve his claim of error where “the trial court fails to provide a meaningful response to a substantive jury note but satisfies its meaningful notice obligations” (Mack, 27 NY3d at 539; Nealon, 26 NY3d at 160-161). Although meaningful notice and a meaningful response had each been deemed a “core responsibility” under O’Rama, the Court began treating the errors quite differently—one required preservation, while the other did not.
Those decisions were harshly criticized for skirting O’Rama’s mandate. The dissenters in both cases lamented the Court’s unprincipled and haphazard abandonment of one of O’Rama’s two core tenets (see Mack, 27 NY3d at 545-547 [Rivera, J., dissenting]; Nealon, 26 NY3d at 164 [Lippman, Ch. J., dissenting]). Indeed, not long before, this Court had reinforced that “[a] court’s failure to supply a meaningful notice or response constitutes error affecting the mode of proceedings, and therefore presents a question of law for appellate review even
Compounding the confusion, the Court based its new dichotomy on the notion that, where the trial court complies with its meaningful notice requirement, defense counsel is equipped with “all the knowledge required to make an objection,” and thus preservation is required (Nealon, 26 NY3d at 162). But meaningful notice, we maintained, required far more than “objection-enabling” notice of the error (id. at 166 [Lippman, Ch. J., dissenting] [noting that “objection-enabling notice is not enough to meet the trial court’s notice obligation”]); anything short of a “verbatim” reading “in open court” would not suffice (Mack, 27 NY3d at 542). Despite the Court’s promise that “lack of notice is the key determinant in classifying a particular procedure as a mode of proceedings error”—since “counsel generally cannot object to an error of which he or she is unaware” (id. at 541)—we continued to mandate reversal, regardless of preservation, even in cases where “counsel was made aware of the existence of the note” (see Walston, 23 NY3d at 990 [emphasis added]).
Shortly after Nealon and Mack, the Court was offered another opportunity to scale back the damage of O’Rama. In People v Parker, the record did not contain a verbatim reading of two jury notes, but it strongly “support[ed] the conclusion that the parties and the court discussed the content of the jury notes . . . at an off-the-record proceeding” (Parker, 32 NY3d at 62 [DiFiore, Ch. J., dissenting]). Because of the record’s ambiguity, the People asserted that a reconstruction hearing—rather than automatic reversal—was the appropriate remedy
The Court declined that invitation, instead holding that, “where the record does not establish compliance with
II.
The instant appeal presents a straightforward application of Parker. While reviewing the court file, defense counsel discovered a juror inquiry that was never mentioned at trial. The inquiry was written on a form entitled “JURY NOTE.” It was signed by the foreperson and labeled with a date and time. It was marked by the court clerk as a court exhibit. And it contained a substantive jury request: it asked the court to “clarify . . . the term ‘evidence’” and to explain whether “the victim’s test[imony]” was “considered direct evidence.” It further expressed one juror’s concern that the jury had deadlocked—also a substantive announcement.
Put differently, defendant asserted an O’Rama error of the most egregious variety: he had no notice of the existence of the
A.
Despite the gravity of defendant’s allegations, the majority agrees that automatic reversal was properly sidestepped based on a then-unproven assertion that the inquiry was a draft, rather than an actual jury note. Because of “[s]ignificant ambiguity in the record,” the majority contends, reconstruction was permitted “not to determine whether the court complied with the counsel notice requirements,” but rather to ascertain whether those requirements were triggered at all (majority op at 2).
First, the majority points out, the note was “sequentially marked after the jury note stating that the jury had reached a verdict” (majority op at 2). To be sure, those circumstances are atypical, perhaps signaling record ambiguity. But the note was also marked with a date and time—about 4 hours prior to the jury’s verdict announcement. In addition, while the note was irregularly numbered by the court clerk, it was not the only note marked out of order. In fact, at least two other jury notes—genuine jury notes, not drafts—were similarly marked out of sequence. And another court exhibit, Supreme Court found, was also inaccurately marked subsequent to the verdict. Even “real” jury notes, it turns out, can be misnumbered.
Next, the majority emphasizes that the note was “duplicative” of other notes that were undisputedly sent out by the jury (majority op at 2). Again, that may be true. But “real” jury notes frequently request (or convey) redundant information. In fact, in this case, at least two other jury notes were largely duplicative of one another; one note asked the court to “define the first 2 charges,” and a subsequent note again asked the court to, among other things, “re-read to the jury the description of counts 1 [and] 2.” Deadlock announcements in
The majority lastly notes that “no other reference” to the jury’s inquiry existed on the record (majority op at 2). But the record’s silence concerning a “real” jury note, while not ideal, is also not unheard of. Indeed, in People v Hanson, the trial transcript similarly did not show that the court was made aware of two jury notes (24 NY3d 294, 298 [2014]). Despite that ambiguity, the Court in Hanson held that a mode of proceedings error had occurred and reversed the defendant’s convictions outright, reasoning that the record failed to “indicate compliance with adequate procedures under O’Rama” (id. at 300). Reconstruction, we held, was not an available remedy, noting that “reviewing courts ‘cannot assume’ that the proper procedure was utilized,” and that precedent “impose[d] an affirmative obligation on a trial court to create a record of compliance under
B.
Of course, with the benefit of a reconstruction hearing, we now know that no error occurred. But the opposite outcome was at least equally possible: the hearing might have shown that the inquiry was, in fact, an unmentioned jury note, amounting to a particularly grievous
Notably, had defendant asserted an O’Rama error of a lesser degree, he presumably would have been entitled to automatic reversal of his convictions. For instance, had the trial court read the note nearly verbatim but failed to mention a single word, defendant would have secured an outright reversal (see Walston, 23 NY3d at 988). Automatic reversal would similarly be required if the trial court had provided defendant verbatim notice of the note’s precise contents during an off-the-record proceeding, and simply failed to so indicate on the record (see Parker, 32 NY3d at 66 n 2 [DiFiore, Ch. J., dissenting]). Yet where the record substantiates a defendant’s claim that he received no notice whatsoever of a jury note’s existence, automatic reversal is no longer available. The import of that holding—the greater the error, the lesser the relief—is loaded with unfairness.
The majority’s new rule also telegraphs a clear formula for evading the dictates of Parker whenever a note is not mentioned at trial. So long as any good-faith reading of the record suggests that a jury note may have been a “draft or derelict note” (majority op at 2), reconstruction is permitted to determine whether or not an O’Rama error occurred. Going forward, then, Parker’s generous “sole remedy” applies only in the context of lesser O’Rama errors involving partial but incomplete notice; a complete failure to provide any notice whatsoever is now subject to reconstruction.
At bottom, the majority’s strained attempt to circumvent Parker hinges on an arbitrary and unsupported distinction. While I concur in the majority’s ends—limiting Parker’s reach—I am not persuaded by its means.
III.
I remain convinced that the O’Rama rule—exacerbated by Parker—is unfair and unworkable, generating contorted holdings aimed at avoiding absurd results. We can only hope that, sooner rather than later, the legislature will finally relieve us (see Morrison, 32 NY3d at 974 [Garcia, J., dissenting]).
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On
Decided May 9, 2019