This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 133
The People &c.,
            Appellant,
        v.
Kenneth Nealon,
            Respondent.




          Christopher Blira-Koessler, for appellant.
          Kendra L. Hutchinson, for respondent.




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

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                                - 2 -                       No. 133

response.   While that departure from the O'Rama procedure (see
People v O'Rama, 78 NY2d 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.
                                  I.
            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 first note requested instruction on the "difference
between robbery in the [first] degree and [second] degree."    The
second note, sent five minutes later, requested reinstruction "on
all [four] charges."   An off-the-record sidebar discussion was
held before the court marked these notes as Court Exhibits 2 and
3.   The court then recalled the jury into the courtroom, and, in
the presence of the parties, counsel, and the jury, read the
notes verbatim into the record.    The court then provided legal
instructions to the jury.   Defendant did not object, either to
the court's procedure or to its responses to the jury.
            The jury's third note stated: "Clarify if [first] count
robbery in first degree includes assault and [second] count


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robbery in second degree doesn't 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 AD3d 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


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appeal (23 NY3d 1065 [2014]).    We now reverse.
                                II.
          CPL 310.30 requires a trial court to provide "notice to
both the people and counsel for the defendant" of a substantive
jury inquiry.   In O'Rama, we held that the statute requires the
court's notice to counsel to be "meaningful," and we clarified
that this "means notice of the actual specific content of the
jurors' request" (O'Rama, 78 NY2d at 277).    This is because
"counsel cannot participate effectively or adequately protect the
defendant's rights if this specific information is not given"
(id.).   We further held that, "in most cases," meaningful notice
is best satisfied by adhering to the procedure outlined in United
States v Ronder (639 F2d 931, 934 [2d Cir 1981]), which procedure
is now commonly known as the O'Rama procedure:
          "Under this procedure, jurors' inquiries must
          generally be submitted in writing, since . .
          . written communications are the surest
          method for affording the court and counsel an
          adequate opportunity to confer. Further,
          whenever a substantive written jury
          communication is received by the Judge, it
          should be marked as a court exhibit and,
          before the jury is recalled to the courtroom,
          read into the record in the presence of
          counsel. Such a step would ensure a clear and
          complete record, thereby facilitating
          adequate and fair appellate review. After the
          contents of the inquiry are placed on the
          record, counsel should be afforded a full
          opportunity to suggest appropriate responses.
          As the court noted in Ronder (supra, at 934),
          the trial court should ordinarily apprise
          counsel of the substance of the responsive
          instruction it intends to give so that
          counsel can seek whatever modifications are
          deemed appropriate before the jury is exposed

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          to the potentially harmful information.
          Finally, when the jury is returned to the
          courtroom, the communication should be read
          in open court so that the individual jurors
          can correct any inaccuracies in the
          transcription of the inquiry and, in cases
          where the communication was sent by an
          individual juror, the rest of the jury panel
          can appreciate the purpose of the court's
          response and the context in which it is being
          made" (O'Rama, 78 NY2d at 277-278).
          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 neither serve the goal of maximizing counsel's participation
nor satisfy the CPL 310.30 requirement that meaningful notice be
given when counsel is not afforded a verbatim account of a
juror's communication" (id. at 279).   Inasmuch as the trial
court's "error in failing to disclose the contents of the note
had the effect of entirely preventing defense counsel from
participating meaningfully in this critical stage of the
trial[,]" we held that the failure to provide meaningful notice
to counsel was a mode of proceedings error (id.).
          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 NY3d


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986, 990 [2014]; People v Tabb, 13 NY3d 852, 853 [2009]; People v
Kisoon, 8 NY3d 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 note 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


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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.
           We have repeatedly cautioned, however, that our
decision in O'Rama "was not designed 'to mandate adherence to a
rigid set of procedures, but rather to delineate a set of
guidelines calculated to maximize participation by counsel at a
time when counsel's input is most meaningful' " (People v Silva,
24 NY3d 294, 299 [2014], rearg denied 24 NY3d 1216 [2015],
quoting People v Alcide, 21 NY3d 687, 692 [2013]).   As such, we
have recognized that "some departures from the procedures
outlined in O'Rama may be subject to rules of preservation"
(Kisoon, 8 NY3d at 135; see Silva, 24 NY3d at 299; Walston, 23
NY3d at 989).
           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 NY3d 116, 119-120
[2005]).   Our precedent compels the conclusion that this
particular deviation from the O'Rama procedure was not a mode of


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proceedings error, and that counsel was required to object to
preserve any claim of error for appellate review.
                               III.
           Our analysis begins with People v Starling (85 NY2d 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
           "[b]ecause the court read the entire content
           of the jury's notes in open court prior to
           responding, this case is distinguishable from
           the situation presented in [O'Rama], where
           the trial court withheld from counsel the
           contents of a juror's note, thereby depriving
           defendant of the opportunity to participate
           in formulating the court's response" (id. at
           516).


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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
NY3d 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 NY3d 426, 429-430 [2010]).
          We reiterated this holding in People v Williams (21
NY3d 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


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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 NY3d 615
[2013]).
           A few months later, we decided People v Alcide (21 NY3d
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).
           "In the presence of defendant, counsel and
           the jury, the judge stated that he had
           received 'notes requesting the reading of the
           testimony of the first officer at the crime
           scene. That will be Court Exhibit 3. And the
           reading of [the bystander's] testimony, which
           will be Court Exhibit 4' " (id. at 691).
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


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"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


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appellate review.    "Where, 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" (Williams, 21
NY3d at 935, quoting Ramirez, 15 NY3d at 826).1
          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



     1
          The rule advocated by the dissent is that where the
trial court's impending response to a substantive jury note can
be characterized as predictable, an objection is required to
preserve any error for appellate review, inasmuch as counsel's
participation in the formulation of a predictable response is
superfluous. Where, however, the court's impending response
cannot be characterized as predictable or obvious, the dissent
would hold that this particular departure from the O'Rama
procedure is a mode of proceedings error and no objection is
required. This appears to be unworkable.
     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 8). 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).

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                              - 13 -                         No. 133

therefore requires only a ministerial response (see People v
Mays, 20 NY3d 969, 971 [2012]; People v Ochoa, 14 NY3d 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
with counsel before recalling the jury is not a mode of
proceedings error.   Counsel is required to object to the court's
procedure to preserve any such error for appellate review.     We
note that our understanding of this line of cases as set forth
herein is consistent with Walston, where we stated: "We have
acknowledged that some departures from O'Rama procedures are
subject to our rules of preservation, such as where the court
reads the entire content of the note verbatim in open court prior


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                              - 14 -                         No. 133

to responding to the jury" (Walston, 23 NY3d at 989 [emphasis
added] [internal quotation marks omitted]).
                               IV.
          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


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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 that a jury
trial entails, the preservation rule requires no less (see
Alcide, 21 NY3d at 696).
          "[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 NY2d 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.


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          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.




                               - 16 -
People v Kenneth Nealon
No. 133




LIPPMAN, Chief Judge (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 NY3d 129, 134-
135 [2007]; People v Ciaccio, 47 NY2d 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 nonwaivable 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
NY2d 270, 279-280 [1991]; and see People v Silva, 24 NY3d 294,
299 [2014]; People v Alcide, 21 NY3d 687, 692 [2013]).    This
appeal asks what process is minimally adequate to satisfy the
latter, constitutionally grounded (see United States v Robinson,
560 F2d 507 [1977] [en banc], cert denied 435 US 905 [1978];
People v Ciaccio, 47 NY2d at 436) requirement.
          The majority has responded, purportedly under the


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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 NY2d 270) 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 278) 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 opinion at
14) betrays a serious misconception of what maximal participation
by counsel entails at this uniquely crucial juncture of a


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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 F2d 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
afforded an opportunity to be heard before the trial judge
responds" (id.).   Integral to that "proper practice" is
compliance with the instruction that the initial disclosure to
counsel of the jury's inquiry should take place out of the jury's
presence, after which, and still without the presence of the
jury, "counsel should be afforded a full opportunity to suggest
appropriate responses" (O'Rama, 78 NY2d at 278).   And, O'Rama is
clear that, ordinarily "a full opportunity to suggest appropriate
responses" is not afforded unless "the trial court . . .
apprise[s] counsel of the substance of the responsive instruction


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                               - 4 -                         No. 133

it intends to give so that counsel can seek whatever
modifications are deemed appropriate before the jury is exposed
to the potentially harmful information" (id. [in original]).
There is nothing in O'Rama to suggest, as the majority now
posits, that these parts of the prescribed procedure are
generally inessential to the satisfaction of the trial court's
"core" notice obligation.   Were they utterly dispensible to the
satisfaction of that duty, the court would not have troubled to
prescribe them.
          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


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                               - 5 -                         No. 133

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 NY3d 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, then, is that objection-enabling notice is not
enough to meet the trial court's core notice obligation when
presented with a post-submission substantive jury inquiry.     While
counsel may be better able to frame an objection once he or she
has heard a jury note read aloud, if counsel hears the note for
the first time when the note is read to the jury and directly
before the court's intended response, as was the case here,
realistically all counsel is being offered is the opportunity to
object in front of the jury, not to participate fully and
substantively.   Contrary to what appears to be the majority's
basic premise, the relevant core objective of O'Rama is not to
assure that counsel will be able to object, practically on the
spur of the moment, to a court's imminent delivery of a
supplemental jury instruction, the content and wording of which
are as yet undisclosed, but to obviate the need for such a blind
objection -- particularly one in front of the jury seeming to


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telegraph the defendant's view that what the court is about to
say may well be unfavorable to his case -- by affording defense
counsel, as a matter of essential non-waivable process, notice
"calculated to maximize [his or her] participation" on the
client's behalf at what may well be the tipping point of the
trial.   The pertinent question, then, in assessing whether there
has been an O'Rama mode of proceedings violation is precisely not
whether counsel has had the opportunity to object, but whether
counsel, without having had to object, has been afforded notice
of the jury query designed to maximize his opportunity to propose
and advocate on the record for, a responsive instruction at once
appropriate and minimally if at all prejudicial to his client's
prospects for a favorable verdict.
          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 non-waivable
(see People v Patterson, 39 NY2d 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


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properly cited for the broad contrary proposition that a trial
court's core CPL 310.30 mode of proceedings notice obligation is
necessarily discharged simply by reading a jury note aloud so as
to enable an objection.   In People v Starling (85 NY2d 509
[1995]), we held that there was no mode of proceedings error
where "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. at 516 [emphasis
supplied]).   In People v Ramirez (15 NY3d 824 [2010]) as well,
the conclusion that there had been no mode of proceedings error
rested upon the circumstance that "defense counsel had notice of
the contents of the note and the court's response" (id. at 825-
826 [emphasis supplied]).   Similarly, in People v Williams (21
NY3d 932 [2013]), because it was objectively evident that the
court would respond to the jury's note requesting clarification
of a legal term by simply reading back the portion of the
previously conferenced charge defining the term, the court's
single reading of the note, in open court, to defense counsel and
the jury, while involving an elision of the procedure outlined in
O'Rama, was deemed sufficient to satisfy the statutory notice
requirement and thus to remove the departure from the mode of
proceedings rubric.   And, in the last of the cases upon which the
majority primarily relies, People v Alcide (21 NY3d 687 [2013]),
all that was requested by the jury were specified readbacks and,


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as we noted, "the judge explained exactly how he was going to
conduct the readbacks" (id. at 694).
          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.1     This case is different.   It
is not one in which the jury requested a simple readback of a
clearly specified portion of the trial record or of a previously
conferenced charge, or one in which it was otherwise obvious in
advance of the court's response what that response would be.
Nor, more importantly, was it a case in which the court's
response was so dictated in style and substance by the jury's
inquiry as to render counsel's participation in its formulation
practically superfluous.   Here, the jury notes seeking, among
other things, clarification of the difference between first and
second degree robbery and of whether the degree of injury
"counted towards first or second degree" (the jury note did not



     1
      The majority insists that this sentence reflects a proposed
"rule" which it then attempts to state with great specificity
(majority opinion, n 1). To the extent that any rule is adverted
to, however, it is that stated in O'Rama, namely, that where
there are articulable circumstances to justify a deviation from
the prescribed protocol and the deviation does not under the
circumstances operate to abridge counsel's opportunity to
participate maximally, the departure will not stand in the way of
concluding that the court met its core notice obligation (78 NY2d
at 278). There is nothing unworkable about this rule; it is the
rule that the Court has, until today, applied.

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                               - 9 -                         No. 133

specify whether this reference was to robbery or assault or both)
necessarily involved the court in an ambiguously framed
discussion of substantive law that might have been approached and
accomplished in numerous ways, some more benign to defendant than
others.   Especially given the lack of clarity in the jury's
request, counsel's participation in the process of honing a
meaningful response was not evidently superfluous and likely
would have resulted in an instruction less muddled, incorrect and
potentially prejudicial than the one the trial court extemporized
on its own.   Because the court, without articulable
justification, departed from the O'Rama notice protocol, and in
so doing failed to employ a procedure equally conducive to
maximizing counsel's opportunity to participate in the
formulation of the supplemental jury instruction -- relegating
counsel instead to a fleeting Hobson's choice between not
participating at all and lodging an open court objection to the
giving of a yet undisclosed supplemental charge about which no
substantive critique could then have been made -- it is plain
that O'Rama's core mandate of meaningful notice was not met.
Certainly, this was not notice "calculated to maximize
participation by counsel" (O'Rama, 78 NY2d at 278).
            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


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                              - 10 -                         No. 133

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 primary concern of the
doctrine, but the court's.   The doctrine recognizes that it is
the court, not counsel, that is best situated to assure that the
correct procedure is followed when a note requesting instruction
issues from a deliberating jury, and that when the Court
discharges its core obligations there will be no opportunity for
gamesmanship of the sort feared.
          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


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                                   - 11 -                             No. 133

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.
*   *   *   *     *   *   *    *     *      *   *     *   *   *   *     *   *
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. Opinion
by Judge Fahey. Judges Pigott, Abdus-Salaam and Stein concur.
Chief Judge Lippman dissents and votes to affirm in an opinion in
which Judge Rivera concurs.

Decided October 27, 2015




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