        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

340/14
KA 09-01764
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRANCE L. MACK, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


      Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered June 17, 2009. The judgment convicted
defendant, upon a jury verdict, of gang assault in the first degree.
The judgment was reversed by order of this Court entered May 2, 2014
in a memorandum decision (117 AD3d 1450), and the People on June 30,
2014 were granted leave to appeal to the Court of Appeals from the
order of this Court (23 NY3d 1027), and the Court of Appeals on June
7, 2016 reversed the order and remitted the case to this Court for
consideration of the facts and issues raised but not determined on the
appeal to this Court (27 NY3d 534).

     Now, upon remittitur from the Court of Appeals and having
considered the facts and issues raised but not determined on the
appeal to this Court,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the judgment so appealed from is affirmed.

     Memorandum: When this case was initially before us, we reversed
the judgment convicting defendant upon a jury verdict of gang assault
in the first degree (Penal Law § 120.07), concluding that County Court
erred in failing to respond to two substantive jury notes that were
followed by an additional note stating that the jury had reached a
verdict (People v Mack, 117 AD3d 1450). Although defendant did not
object to the manner in which the court proceeded, we concluded that
the court’s failure to respond to the two substantive notes
constituted a mode of proceedings error that did not need to be
preserved (id. at 1451). The Court of Appeals reversed, holding that
the “alleged error” was not of the mode of proceedings variety because
the court read the jury notes into the record, and defense counsel had
full “knowledge of all the facts required to object to the trial
court’s procedure or lack of response to the jury’s requests” (People
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v Mack, 27 NY3d 534, 541). The case was remitted to us “for
consideration of the facts and issues raised but not determined on the
[initial] appeal” (id. at 544).

     Inasmuch as we reviewed the other substantive contentions
advanced by defendant on appeal and concluded that “they are without
merit” (Mack, 117 AD3d at 1451), the only remaining issue to be
decided is whether we should exercise our power to review defendant’s
unpreserved contention regarding the unanswered jury notes as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]). We
decline to do so. As the Court of Appeals noted, defense counsel “may
have made a strategic choice not to challenge the trial court’s
procedure,” and “may have decided that the jurors were more likely to
acquit defendant if they were not given the chance to deliberate
further” (Mack, 27 NY3d at 543). Such a strategic decision, if made,
would have been entirely reasonable considering that the jury had
asked for, among other things, a readback of testimony from the key
prosecution witness.

      Because defense counsel may have had a legitimate, strategic
reason for not objecting to the court’s procedure, we respectfully
disagree with the dissent that defendant was “seriously prejudiced” by
the court’s taking of the verdict. Indeed, as the Court of Appeals
also noted, “[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.). Moreover, when
this case was last before us, we unanimously rejected defendant’s
contention that defense counsel was ineffective for failing to object
to the court’s procedure. Any discussion of prejudice in our prior
decision was dictum inasmuch as it was based on our conclusion that
there was a mode of proceedings error, which is “immune . . . from
harmless error analysis” and “require[s] reversal without regard to
the prejudice, or lack thereof, to the defendant” (Mack, 27 NY3d at
540).

     The dissent suggests that defense counsel may not have objected
because, relying upon the O’Rama jurisprudence in effect at the time
of trial, he anticipated that a new trial would be ordered on appeal
as a result of the court’s alleged error if defendant were convicted.
However, at the time of defendant’s trial, as now, the appellate case
law in New York supported the People’s contention that “the fact that
a verdict was reached before the court responded to the jury note[s]
implied that the jury had resolved the issue[s] on its own” (People v
Murphy, 133 AD3d 690, 691, lv denied ___ NY3d ___ [June 14, 2016]; see
e.g. People v Sorrell, 108 AD3d 787, 793, lv denied 23 NY3d 1025;
People v Cornado, 60 AD3d 450, 451, lv denied 12 NY3d 913). In any
event, remaining silent when the trial court makes an erroneous ruling
with the hope of obtaining a reversal on appeal is the type of
gamesmanship that the Court of Appeals sought to discourage by
determining that the “alleged error” in this case was not a mode of
proceedings error (Mack, 27 NY3d at 543-544; see generally People v
Nealon, 26 NY3d 152, 162).

     With respect to the proof of guilt, defendant did not challenge
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on appeal the weight or sufficiency of the evidence, and there is
ample evidence supporting the jury’s verdict. The eyewitness who saw
defendant attack the victim with a bottle knew defendant from the
neighborhood, having seen him “quite a few times.” It was not as
though she were identifying a stranger. The testimony of the
jailhouse informant also was corroborated by defendant himself, who,
during a recorded telephone conversation from jail with his father,
essentially acknowledged that he made the damaging admissions to the
informant. We therefore respectfully disagree with the dissent that
justice would be served by the exercise of our discretionary power to
review defendant’s unpreserved contention.

     All concur except CARNI and SCUDDER, JJ., who dissent and vote to
reverse in accordance with the following memorandum: In our view,
defendant was “seriously prejudiced” by County Court’s failure to
comply with its core requirement pursuant to CPL 310.30 to respond to
a substantive jury note requesting further legal instruction on, inter
alia, “the meaning of reasonable doubt,” before accepting a verdict
(People v Lourido, 70 NY2d 428, 435). Thus, upon remittitur from the
Court of Appeals (People v Mack, 27 NY3d 534), we would review, as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]), defendant’s contention that the court’s failure to respond to
the note constitutes reversible error, reverse the judgment, and remit
the matter for a new trial. We therefore respectfully dissent.

     As we explained in our prior decision (People v Mack, 117 AD3d
1450), defendant was convicted of gang assault in the first degree
(Penal Law § 120.07), which resulted in the death of the victim from
two stab wounds. A police witness testified that 75 to 100 people may
have witnessed the attack, but the only evidence implicating defendant
was the testimony of two witnesses, i.e., an eyewitness and a
jailhouse informant. The eyewitness was a 19-year-old woman who
viewed the incident, which occurred at dusk, from a distance of 150
feet. The eyewitness advised the police on the night of the attack
that she could not identify the perpetrator. She subsequently
testified, however, that she had told that to the police because she
was afraid. The eyewitness identified defendant in a photo array
several weeks after the attack. The jailhouse informant admitted in
his testimony that he had received a benefit for his testimony, that
he had seen news accounts that defendant had been charged in
connection with the victim’s death, and that he was a friend of the
victim’s brother. Thus, in our view, the evidence against defendant
was not overwhelming. Defendant testified that he was at his home in
another city on the evening of the crime, and five defense witnesses
testified either that defendant was at his home, or that he was not
part of the attack on the victim.

     The jury advised the court at 5:42 p.m. that it was deadlocked,
after deliberating for approximately five hours, which included
requests for readbacks of certain testimony of both the eyewitness and
the jailhouse informant. The court instructed the jury to continue
deliberating and, at 6:02 p.m., advised counsel that it would stand in
recess until 7:30 p.m. There is no indication in the record that the
jury was aware of the recess and, from 6:02 p.m. until the court
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                                                         KA 09-01764

reconvened at 7:51 p.m., the jury sent three notes, two of which were
substantive. At issue here is the note sent at 6:20 p.m., wherein the
jury requested “instructions regarding the importance of a single
witness in a case versus multiple witnesses and the meaning of
reasonable doubt read back to us.” The court received a final note at
7:54 p.m., three minutes after it had reconvened, stating that the
jury had come to a verdict. The court accepted the verdict without
addressing the jury’s request and with no objection from defense
counsel. Although “ ‘[n]ot every failure to comply with a jury’s
request for information during deliberation is reversible error’ ”
(Lourido, 70 NY2d at 435), we concluded in our prior decision that the
error in failing to respond to the request for further legal
instruction on these critical issues “ ‘seriously prejudiced’ ”
defendant (Mack, 117 AD3d at 1451, quoting Lourido, 70 NY2d at 435).
We adhere to our position that the error, despite the lack of
preservation, warrants reversal.

     The Court of Appeals and the majority correctly note that defense
counsel “may have made a strategic choice not to challenge the trial
court’s procedure” (Mack, 27 NY3d at 543). The Court of Appeals used
that reasoning, however, as part of its explanation for declining to
include the circumstance at issue here in the category of those errors
that encompass “a ‘very narrow exception’ to the preservation rule”
(id. at 540). We cannot agree with the majority that the reasoning
employed by the Court of Appeals to limit the category of errors that
constitute mode of proceedings errors should be applied to our
determination whether to exercise our interest of justice
jurisdiction. We also disagree with the majority that a strategic
choice of counsel to remain silent when the court advised the parties
that it would accept the verdict should be used as a ground to decline
to exercise our interest of justice jurisdiction under the facts
presented here. Indeed, as the majority properly notes, we concluded
that defendant was not denied effective assistance of counsel. In
other words, in addition to the potential strategic choices the Court
of Appeals addressed (see Mack, 27 NY3d at 543-544), counsel may have
anticipated under the O’Rama jurisprudence in effect at the time of
trial that this Court would grant defendant a new trial, which indeed
we did. Notwithstanding the appellate authority from other
Departments cited by the majority, the determination whether the
violation of the court’s core responsibility pursuant to CPL 310.30 to
provide a meaningful response to the substantive jury notes
constituted a mode of proceedings error was not definitively decided
until the Court of Appeals decided in this case that it was not (see
id. at 544). In our view, the determination whether to exercise our
interest of justice jurisdiction should not be based upon possible
defense strategies or tactics. Instead, the determination whether to
exercise our interest of justice jurisdiction should be based on
whether justice would be served. In our view, justice would be served
under the facts presented here.

     As we stated in our prior decision “there are few moments in a
criminal trial more critical to its outcome than when the court
responds to a deliberating jury’s request for clarification of the law
. . . [T]he request for a readback of the instruction on reasonable
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doubt, the determination of which is the crux of a jury’s function,
and for a readback of the instruction regarding the importance of a
single witness in a case versus multiple witnesses, demonstrates the
confusion and doubt that existed in the minds of the jury with respect
to . . . crucial issue[s] . . . The jury is entitled to the guidance
of the court and may not be relegated to its own unfettered course of
procedure” (Mack, 117 AD3d at 1451 [internal quotation marks omitted
and emphasis added]). The jury waited over 1½ hours for a response to
its request for the clarification of those crucial legal instructions
before rendering a verdict. In our view, unlike a factual issue that
the jury may resolve on its own (see id.), the jury could not resolve
“the meaning of reasonable doubt” or “the importance of a single
witness in a case versus multiple witnesses” without further guidance
from the court. We therefore conclude that reversal is warranted in
the interest of justice because defendant was seriously prejudiced as
a result of the court’s failure to comply with its “core
responsibility under the statute . . . to provide a meaningful
response to the jury” before accepting the verdict (People v Kisoon, 8
NY3d 129, 134; see CPL 310.30; People v O’Rama, 78 NY2d 270, 277).




Entered:   August 17, 2016                     Frances E. Cafarell
                                               Clerk of the Court
