No. 134
The People &c.,
            Respondent,
        v.
Rhian Taylor,
            Appellant.




          Joel B. Rudin, for appellant.
          Sharon Y. Brodt, for respondent.




ABDUS-SALAAM, J.:
          The dispositive issue on this appeal is whether a trial
court abuses its discretion and commits reversible error when, in
response to a request from a deliberating jury, it does not
provide the jury with a substantial portion of requested evidence
regarding the potential bias of key prosecution witnesses and

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then suggests to the jury that there is no other evidence
relevant to its inquiry.   Under the circumstances of this case,
we hold that the trial court abused its discretion in taking such
actions, necessitating reversal of defendant's convictions.
                                I.
          Based on his alleged shooting of Wayne Peacock and
Darion Brown, which resulted in Brown's death, defendant Rhian
Taylor was indicted and tried on charges of murder in the second
degree (see Penal Law § 125.25 [1]), attempted murder in the
second degree (see Penal Law §§ 110.00; 125.25 [1]), assault in
the first degree (see Penal Law § 120.10 [1]), assault in the
second degree (see Penal Law § 120.05), reckless endangerment in
the first degree (see Penal Law § 120.25) and two counts of
criminal possession of a weapon in the second degree (see Penal
Law §§ 265.03 [1] [b]; 265.03 [3]).    According to the People's
proof at trial, the shooting occurred during a dispute outside
the location of a party in Queens.
          Specifically, on the night of August 10, 2007, Brown
drove Peacock, as well as their friends Seprel Turner and Anthony
Hilton, to the site of the festivities.    Upon their arrival and
while they remained in the car, Brown tried to flirt with a
friend of Hilton's, despite Hilton's admonition not to do so.      A
man, whom Turner and Hilton later identified as defendant,
purportedly took offense at Brown's actions and shot into the
car, striking Brown repeatedly in the torso.    One shot also hit


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Peacock, who immediately woke from a nap in the passenger seat
and hence did not see the shooter's face.    Brown frantically
drove away but soon hit a nearby pole, and he was knocked
unconscious.    Peacock, Turner and Hilton scattered.   Turner and
Hilton then met up at Turner's house.    About 10 minutes later,
Hilton and Turner returned to the scene of the shooting, and
although the police had already arrived, the men did not speak to
the officers.    The officers retrieved Brown from the car, and he
was rushed to the hospital, where he died.
           Within a couple of days, Peacock led the police to
Turner, who was shown a photo array and identified defendant as
the shooter.    Acting on this identification, the police searched
for defendant, who eventually surrendered.    On August 14, Turner
identified defendant in a lineup.    Meanwhile, Hilton learned that
the police were looking for him, and he decided to speak to them;
in Hilton's telling, "[b]ecause they w[ere] riding around the
neighborhood with [his] picture" and he was "going to court for a
case," he "felt [he] had to take care of it."    Hilton informed
the police of his observations of the crime, and he identified
defendant in a photo array as the perpetrator.
           Months later, in 2008, Hilton was arrested on unrelated
charges.   Because Hilton was already on probation in connection
with another criminal matter, he was charged with violating his
probation.   When Hilton appeared in court to answer the
specifications of a probation violation, the prosecutor who


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handled the instant case also attended that court appearance and
requested that no bail be set in Hilton's case.    In August 2009,
Hilton pleaded guilty to the violation without any negotiated
plea.   The court returned Hilton to a five-year term of
probation.    While he continued serving his probation term, Hilton
shoplifted a scarf from a store, leading to his arrest and
eventual conviction on a charge of criminal possession of stolen
property.    Hilton also had prior convictions for menacing and
disorderly conduct.
            As for Turner, over a year after the shooting, in late
2009, he was arrested for unlawfully possessing a weapon.
Thereafter, the People and Turner negotiated a plea agreement,
under which Turner would plead guilty to criminal possession of a
weapon in the second degree, a felony, and to criminal possession
of a weapon in the fourth degree, a misdemeanor, and if he
testified truthfully at defendant's trial, the felony charge
would be dismissed and Turner could re-plead to the misdemeanor
charge, resulting in a purely probationary sentence.    On February
25, 2010, Turner pleaded guilty to the aforementioned charges and
executed a written cooperation agreement memorializing the
bargain.
            At trial, Turner acknowledged that he would obtain
other benefits as a natural consequence of the deal.    For
example, by receiving only a misdemeanor conviction, he could not
be sentenced as a second felony offender on any future crime that


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he might commit.   And, Turner, who was pursuing a career as a rap
artist, would avoid incarceration, thereby ensuring that he would
not jeopardize his recently signed contract with a record label
due to imprisonment.   As previously noted, Turner and Hilton were
the only witnesses who identified defendant as the man who shot
Brown and Peacock.
          After the presentation of proof of the foregoing facts
at trial, the parties presented their summation arguments.     In
his summation, defense counsel argued that Hilton and Turner had
been motivated to testify falsely against defendant, and in
addition to the People's written cooperation agreement with
Turner, counsel cited Turner's testimony about the additional
benefits he would naturally receive from his plea and Hilton's
testimony about the People's intervention at his probation
hearing as proof of the witnesses' bias in favor of the People.
Counsel also argued that Hilton had a motive to kill Brown out of
jealousy over Brown's flirtation with Hilton's friend, and
counsel denounced Turner and Hilton as untrustworthy criminals
whose testimony should be discounted.   In her summation, the
prosecutor countered that the only material benefits which Turner
had received were those set forth in the cooperation agreement,
and she insisted that the People's advocacy for Hilton's release
without bail in his case did not give Hilton a motive to testify
favorably to the People in this case.
          Prior to the start of the jury's deliberations, the


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parties agreed that the court could submit any exhibits in
evidence to the jury upon request without having to reconvene the
parties and the jury in open court.    The next day, the
deliberations commenced, and before any proceedings occurred in
open court, the jury issued three notes.    The first note said,
"We would like to see all the People's exhibits of the car,
inside, outside and the scene in evidence collected."      The second
note said, "We would like to see two photo arrays.    We would also
like a sketch of the scene."   The third note stated, "We would
like a readback of Anthony Hilton's testimony and S. Turner's
testimony with regard to their stories about being in the car
prior to and up to just after the shooting."    When proceedings
resumed on the record, the court read the three notes to the
parties and explained that the first two had already been
"complied with pursuant to [the parties'] agreement."      With
respect to the third note requesting a readback of Hilton's and
Turner's testimony, the court announced that it was ready to
respond with the readback.   The parties did not object to the
court's responses to the notes, either as previously delivered or
proposed, and the court had the testimony requested in the third
note read to the jury.
          The next day, prior to the start of proceedings on the
record, the jury issued its fourth and fifth notes.    The fourth
note declared, "[W]e would like to see the benefits offered to
Mr. Hilton and Mr. Turner, please."    The fifth note stated, "We


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would like to have definition of reasonable doubt."      In response
to the fourth note asking to see the benefits offered to the
witnesses, the court sent the jurors the written cooperation
agreement between the People and Turner, without consulting the
parties.    Thereafter, on the record, the court allowed the
parties to inspect the two notes, and it read the contents of the
notes aloud.
            Defense counsel objected to the court's response to the
fourth note.    Counsel essentially asserted that the response was
incomplete without a readback of Turner's and Hilton's testimony
about the benefits they had received outside the context of the
written cooperation agreement, such as the career-related and
sentencing benefits to Turner and the pretrial release obtained
by Hilton in his probation matter.      The court replied that the
jurors "didn't ask for that" and had "gotten the agreement,"
adding, "If they want anything more I'll be there to listen."
When the court returned the jurors to the courtroom, it said, "I
believe we sent in to you the cooperation agreement with Mr.
Turner.    That's what is in evidence."    Next, the court proceeded
to answer the fifth note, stated, "We will be here if you need
anything," and sent the jurors back to the jury room.
            Outside the presence of the jury, the court told
defense counsel that its comments had accurately indicated to the
jurors that they had received only an agreement between the
People and Turner in response to their request and that they


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could ask for additional materials if they so desired.    Referring
to the court's statement to the jury about "what [was] in
evidence," counsel responded by suggesting that this statement
had been inaccurate because the written cooperation agreement did
not represent the entirety of the evidence of the witnesses'
benefits.    Counsel reiterated his belief that the jurors had
wanted to receive all evidence of benefits conferred upon both
witnesses, including the testimony about the benefits not
memorialized in the cooperation agreement.    The court rejected
counsel's arguments, deciding that the jurors' use of the term
"see" in the fourth note revealed their desire to receive only
evidence that could be visually inspected, i.e., the written
cooperation agreement.
            Following the contested fourth note, deliberations
continued for just over two more days, and the jury issued, and
the court answered, several more notes, including one stating
that the jury was deadlocked.    Finally, on the fifth day of
deliberations, the jury rendered a verdict convicting defendant
of second-degree murder, second-degree assault, two counts of
second-degree weapons possession and first-degree reckless
endangerment.    After post-verdict proceedings not relevant to the
disposition of this appeal, the court sentenced defendant to an
aggregate prison term of 20 years to life, to be followed by five
years of postrelease supervision, and defendant appealed.
            The Appellate Division unanimously affirmed defendant's


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convictions (see People v Taylor, 120 AD3d 842, 842-843 [2d Dept
2014]).    As relevant here, the Appellate Division rejected
defendant's contention that the trial court had improperly
responded to the fourth jury note by failing to read back
Turner's and Hilton's testimony about the benefits they received
in other cases based on their aid to the People in defendant's
case (see id. at 842-843).    Essentially adopting the trial
court's reasoning, the Appellate Division declared, "While it may
have been preferable for the court to seek further clarification
from the jury with respect to its request to 'see the benefits,'
the wording of the subject jury note, particularly when read in
conjunction with several other notes, demonstrated that the jury
was requesting only the physical exhibit," and therefore the
court's "response did not fall outside the acceptable bounds of
its discretion, and thus satisfied the requirement of CPL 310.30"
(id. [internal citations omitted]).     A Judge of this Court
granted defendant leave to appeal, and we now reverse.
                                 II.
           CPL 310.30 provides that, "[u]pon such request" for
evidence or legal instruction from a deliberating jury, "the
court must direct that the jury be returned to the courtroom and,
after notice to both the people and counsel for the defendant,
and in the presence of the defendant, must give such requested
information or instruction as the court deems proper" (CPL
310.30).   Similarly, absent a withdrawal of the jury's inquiry or


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similar circumstances, common-law principles of procedural
fairness generally require the court to furnish the jury with
information requested during its deliberations, and the court has
significant discretion in determining the proper scope and nature
of the response (see People v Gonzalez, 293 NY 259, 262-263
[1944] ["The general rule in the United States is that 'the court
may and ordinarily should give the jurors additional instructions
on their request.'"], quoting 23 C. J. S. Criminal Law, § 1376,
subd. c., at 1046); see also People v Malloy, 55 NY2d 296, 302-
303 [1982]).   Thus, regardless of whether the issue is framed
under CPL 310.30 or common-law rules governing jury
deliberations, where, as here, the defendant has preserved for
our review a specific objection to the contents of the trial
court's response to a jury note, we must determine whether the
trial court acted within the bounds of its discretion in
fashioning an answer to the jury's inquiry (see Malloy, 55 NY2d
at 302; see also People v Cooke, 292 NY 185, 188 [1944] [noting
that, under a pre-CPL 310.30 statute, which reflected to some
extent the common law, not every refusal to answer the jury in a
particular manner constituted reversible error]).   In determining
whether the trial court abused its discretion and committed
reversible error, "[t]he factors to be evaluated are the form of
the jury's question, which may have to be clarified before it can
be answered, the particular issue of which inquiry is made, the
[information] actually given and the presence or absence of


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prejudice to the defendant" (Malloy, 55 NY2d at 302; see People v
Steinberg, 79 NY2d 673, 684 [1992]).
          In this case, an evaluation of those factors
demonstrates that the trial court abused its discretion by
declining to provide the jurors with information that they
plainly wanted and incorrectly characterizing the state of the
evidence on the subject of their inquiry.   In that regard, the
form of the jury's request in the fourth note showed that the
jury wished to review all evidence of the benefits which Hilton
and Turner acquired as a result of their assistance in the
prosecution of defendant.   Because the jurors asked to see the
benefits offered to "Mr. Hilton and Mr. Turner" (emphasis added),
the form of their inquiry reflected their desire to examine the
evidence of benefits conferred upon both witnesses, and that
evidence necessarily included both the written cooperation
agreement between the People and Turner and the witnesses'
testimony about the advantages of their cooperation with the
People.
          Contrary to the trial court's supposition, the jury
could not have desired exclusively to receive the written
cooperation agreement, as that agreement did not provide any
benefits to Hilton and simply memorialized a portion of the
benefits received by Turner.   Given the jury's entreaty for all
proof of Turner's and Hilton's gains related to their assistance
in the prosecution of defendant, the court should have supplied


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the jurors not only with the cooperation agreement, but also
with: Turner's testimony that the cooperation agreement's
provision for a non-prison sentence enabled him to keep a
potentially lucrative recording deal; his testimony that his plea
to a misdemeanor allowed him to avoid receiving a predicate
felony offender adjudication on any future conviction; and
Hilton's testimony that the trial prosecutor in defendant's case
spared him from having to post bail in his probation proceeding.
          Although, as the trial court noted, the jurors'
expressed wish "to see" the pertinent evidence might have implied
a desire solely to view an exhibit, this single phrase did not
undermine the note's otherwise clear request for the entirety of
the evidence of benefits conferred upon Turner and Hilton,
especially in light of the context in which the note was issued.
Notably, in their summations, both parties disputed the extent to
which the written cooperation agreement and the witnesses'
testimony on the subject of benefits reflected the witnesses'
motives to testify in favor of the People, thereby drawing the
jurors' attention to all of that evidence in a manner that would
naturally prompt them to request that proof in its entirety.
More importantly, prior to the issuance of the fourth note, the
jurors had expressed their desire to visually inspect physical
exhibits by specifically referring to particular physical
objects, such as "photo arrays," "sketch[es]" or "exhibits," and
therefore, had the jurors wanted to receive only the written


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cooperation agreement in reply to their fourth note, they
presumably would have asked to see "the agreement" or "the
exhibit" setting forth the benefits to Turner.   Instead, the
jurors framed their request in terms of evidence of "the
benefits" offered to the witnesses, period, without limiting the
inquiry to an "exhibit" or physical object.   Given the clear
meaning of the note in context, the court improperly focused on
the phrase "to see" in disregard of the remaining contents of the
note and then proceeded to submit only the cooperation agreement
to the jurors (cf. People v Lykes, 81 NY2d 767, 770 [1993]
[approving the trial court's handling of a jury note in part
because the court "did not limit or channel the jury's
question"]).   The court should have at least inquired as to
whether the note in fact meant what its terms and the surrounding
circumstances overwhelmingly suggested.
          In addition, since the issue about which the jury
inquired, namely the People's favorable treatment of Turner and
Hilton, was essential to the jury's ability to judge the
credibility of the sole witnesses to identify defendant as
Brown's killer and Peacock's assailant, the court's inadequate
response to the jury's query on that central issue further
reflected the court's abuse of its discretion.   Given the lack of
any other testimony or physical evidence that defendant was the




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shooter1, Hilton's and Turner's credibility became the key issue
at trial, and in light of the witnesses' respective criminal
pasts, the truthfulness of their testimony was subject to serious
dispute, calling for particular care in fashioning a fair and
complete response to the jurors' inquiry into the matter.    In
addition to the written cooperation agreement, the other evidence
sought by the jurors had an especially strong bearing on the
witnesses' credibility.   Indeed, because the requested testimony
showed that the trial prosecutor had helped Hilton to win
pretrial release in another case, this testimony suggested that
Hilton had a motive to testify falsely in favor of the
prosecution at defendant's trial out of gratitude for the
prosecutor's aid.   Likewise, Turner's testimony that his
cooperation with the People enabled him to avoid imprisonment,
prevent future adverse sentencing adjudications and continue
making a living showed that he had a motive to give false
testimony against defendant in order to reap those rewards.    That
being so, the court abused its discretion by withholding a highly
significant portion of what the jury had asked for regarding an
essential issue at trial (see generally People v Lourido, 70 NY2d
428, 435 [1987]; cf. People v Mercado, 91 NY2d 960, 963 [1998]).
          Moreover, after the court failed to supply the jurors


     1
        Although defendant's DNA was found on a cigarette filter
near several shell casings at the scene of the shooting, this
evidence showed that defendant was in close proximity to the
shooting and not that he was necessarily the shooter.

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with the full extent of the requested evidence, the court made
comments suggesting that the remainder of the sought-after proof
did not exist, and the combination of the court's failure to give
the jury necessary information and its inaccurate follow-up
remarks prejudiced the defense.   Specifically, when the court
told the jurors that the written cooperation agreement between
the People and Turner was "what [was] in evidence" in relation to
their note, the court incorrectly indicated that there was no
evidence, other than the agreement, regarding benefits received
by Hilton and Turner, even though testimony about such benefits
did in fact exist.   Based on this statement, the jurors may have
erroneously believed that either their recollection of the
existence of such evidence was faulty or the testimony they had
sought was irrelevant, prompting them to cease their inquiry into
this important evidence based on false assumptions.   Since the
People's proof of defendant's identity as the shooter was less
than overwhelming and the court's response to the note seriously
inadequate, the court abused its discretion as a matter of law,
and reversal is required.
          In reaching this conclusion, we do not signal any
erosion of a trial court's discretion in answering jury notes.
In acting within the bounds of discretion delineated by People v
Malloy (55 NY2d at 296) and similar cases, a trial court retains
leeway to shape its response to the jurors' inquiry based on the
record as a whole and the applicable law, and if the court


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entertains some doubt as to the meaning of a jury note, it can
and should seek clarification from the jury (see Lykes, 81 NY2d
at 769-770).   Additionally, if some of the circumstances here
were to arise in isolation in other cases, they might not support
the conclusion that the trial court abused its discretion in
answering a note, for no single factor is dispositive.     Thus, we
go no further than to hold that, under the totality of the
circumstances in this case, the trial court abused its discretion
as a matter of law by failing to adequately answer the jurors'
fourth note and creating a false impression of the nature of the
evidence.
                                III.
            Because defendant's challenge to the substance of the
trial court's response to the jury's fourth note mandates
reversal of his convictions, we need not decide whether the court
committed a mode of proceedings error by revealing the contents
of the fourth note to the parties only after it had sent the
cooperation agreement to the jury, and we express no opinion on
that matter.   For the same reason, we need not address
defendant's remaining contentions.      Accordingly, the order of the
Appellate Division should be reversed and a new trial ordered.




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People v Rhian Taylor
No. 134




RIVERA, J.(concurring):
            I concur in the result only, and agree with the
majority that defendant's convictions must be reversed, but on
different grounds.    Moreover, because I find the majority's
analysis an unnecessary and overly broad reading of our case law
on the proper handling of jury requests, I decline to join its
interpretation of the legal requirements set by this Court in
this area.
            In People v O'Rama (78 NY2d 270, 276-277 [1991]), this
Court held that CPL 310.30 imposes on a court the duty to notify
counsel of a substantive juror inquiry, and the duty to
meaningfully respond to the jury.    In accordance with our
interpretation of CPL 310.30, an utter failure to respond cannot
be termed "meaningful" in any sense of the word (see People v
Lourido, 70 NY2d 428, 435 [1987]).      Furthermore, we recently
reaffirmed in People v Walston (23 NY3d 986, 989 [2014]) that
fulfillment of these duties is a core responsibility of the trial
court.    Thus, the court's failure to fulfil these
responsibilities constitutes a mode of proceedings error, which
does not require preservation (id.; People v Alcide, 21 NY3d 687,
692 [2013] [a mode of proceedings error will result where a judge


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fails to afford meaningful response to the jury]).   This error
also requires reversal and a new trial (People v Roberites, 115
AD3d 1291, 1293 [2014] [court's failure to provide notice to
counsel constituted a mode of proceedings error which requires
reversal and a new trial]).
          As the majority correctly describes, the jury note
expressed the jurors' desire to review the evidence of the
benefits accorded to Anthony Hilton and Seprel Turner, which
obliged the court to provide evidence relating to both
witnesses.*   However, the court failed to provide any information
at all regarding the benefits granted to Hilton, notwithstanding
the existence of testimony in the record readily available to
address such a request.   Thus, on the facts of this case, the



     *
       The fact that the inquiries were included in one jury note
is irrelevant for purposes of the analysis because a court's duty
to provide a meaningful response for each request remains
unchanged, and a complete failure to reply to any inquiry is
error (see People v Stocks, 101 AD3d 1049, 1051 [2d Dept 2012]
[finding O'Rama violation where court failed to provide defense
counsel with notice of jury note, which contained, in part, a
substantive request]; see also People v Brown, 125 AD3d 1550 [4th
Dept 2015] [treating one note with multiple requests as separate
inquiries and finding no O'Rama violation where defense counsel
participated in the formulation of a response to the factual
inquiries, and did not preserve for review the court's response
to the part of the note concerning the readback of testimony];
People v Jackson, 105 AD3d 607 [1st Dept 2013] [finding no
violation but analyzing different parts of one note separately]).




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Court's response to the jury's request to review information
relating to Hilton was no response at all, and as such
constituted a mode of proceedings error under our O'Rama
jurisprudence.   That error requires reversal and, therefore,
there is no need to consider, as the majority does, whether
Supreme Court abused its discretion.
*   *   *   *    *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed and a new trial ordered. Opinion by Judge Abdus-
Salaam. Judges Pigott, Stein and Fahey concur. Judge Rivera
concurs in result in a separate opinion in which Chief Judge
Lippman concurs.

Decided October 27, 2015




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