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

74
KA 08-02494
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DALE KAHLEY, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER (JOSEPH
D. WALDORF OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Patricia D.
Marks, J.), rendered September 20, 1993. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following Memorandum: Following a
jury trial in 1993, defendant was convicted of murder in the second
degree (Penal Law § 125.25 [1]). On direct appeal, defendant raised a
number of contentions, one of which challenged the admissibility of
identification testimony admitted at trial. Although we initially
reserved decision and remitted the matter to County Court for a
hearing on the issue whether an identification procedure employed by
the police was confirmatory (People v Kahley, 214 AD2d 960), we
ultimately affirmed the judgment of conviction (People v Kahley, 227
AD2d 934, lv denied 89 NY2d 925). In 2009, defendant moved for a writ
of error coram nobis, asserting that his appellate attorney was
ineffective for failing to raise an issue on direct appeal that would
have resulted in reversal, i.e., that the court, in violation of CPL
310.30, failed to notify him of the contents of a note received from
the jury during its deliberations. We granted the writ (People v
Kahley, 60 AD3d 1438) and now consider the appeal de novo. On this
appeal, defendant contends, inter alia, that he is entitled to a new
trial due to the court’s failure to comply with CPL 310.30.

     The relevant law is well settled. CPL 310.30 (1) provides
generally that, upon receiving a note from the jury during
deliberations requesting further instruction or information, “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.” In People v O’Rama (78 NY2d
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270), which was decided two years before defendant’s trial, the Court
of Appeals provided more detailed instructions for the handling of
jury notes. The Court advised that, “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 . . . [T]he 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 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” (id. at 277-278). In O’Rama, the Court concluded that the trial
court’s failure to disclose the contents of a jury note to defendant
was a mode of proceedings error that required reversal even in the
absence of an objection (id. at 279), reasoning that the court’s error
“deprived [defendant] of the opportunity to have input, through
counsel or otherwise, into the court’s response to an important,
substantive juror inquiry” (id. at 279-280).

     In subsequent cases, the Court made clear that not all O’Rama
violations constitute mode of proceedings errors (see People v
Ramirez, 15 NY3d 824, 825-826; People v Kisoon, 8 NY3d 129, 134-135;
People v Starling, 85 NY2d 509, 516). The only errors that require
reversal in the absence of preservation are those that go to the trial
court’s “core responsibilities” under CPL 310.30, such as giving
notice to defense counsel and the prosecutor of the contents of a jury
note (People v Tabb, 13 NY3d 852, 853).

     Here, after the jury had been deliberating for approximately two
hours, the court stated on the record, “We have received an additional
note requesting [the testimony of Simmons and Carmichael concerning]
who left the house before the shots were fired.” We note that,
although the court referred to an “additional note,” there is no
indication in the record that a prior note had been sent by the jury.
Once the jury was returned to the courtroom, the court stated, “Ladies
and gentlemen, the court reporter has been preparing her notes and she
will now read to you the testimony of Dr. Albert and . . . Rucker.
After that testimony, we’ll excuse you to have your lunch and to have
the court reporter further prepare her notes and then resume with the
testimony of the other witnesses approximately one hour later. Go
ahead.”

     The record reflects that the court reporter then read testimony
of Dr. Albert and Rucker to the jury, but the record does not identify
what portion of the testimony was read. The jury was then excused for
lunch. Approximately an hour and a half later, the jury was returned
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                                                         KA 08-02494

to the courtroom and informed by the court that the court reporter was
prepared to read the testimony of Simmons and Carmichael, as well as
the testimony of Weaver, who testified for the prosecution that he was
with defendant when the fatal shot was fired. The court’s reference
to Weaver’s testimony is the first indication in the record that the
jury had requested a readback of his testimony. The requested
testimony of those three witnesses was read to the jury, which later
rendered a guilty verdict.

     There can be no dispute that the court failed to follow several
of the procedures outlined in O’Rama. For instance, the court failed
to mark any of the jury notes as exhibits and did not read the notes
into the record. Defendant, however, did not object to the court’s
handling of the jury notes and, thus, his contention that the court
violated CPL 310.30 is unpreserved for our review (see CPL 470.05
[2]). As defense counsel correctly conceded at oral argument of this
appeal, the court did not commit mode of proceedings errors in failing
to mark the jury notes as exhibits and to read them into the record.
Because CPL 310.30 does not mandate the marking and reading of notes
into the record, it logically follows that those are not among the
court’s “core responsibilities” under the statute (Tabb, 13 NY3d at
853; cf. People v Weaver, 89 AD3d 1477, 1478-1479). We perceive no
basis to review defendant’s unpreserved contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant nevertheless contends that he is entitled to a new
trial because the court committed a mode of proceedings error for
which preservation is not required in failing to advise him of the
contents of what appears to have been the first note sent by the jury,
i.e., the note requesting a readback of testimony from Dr. Albert and
Rucker, and possibly Weaver. In response, the People suggest that
notice of the first note was provided to defendant off the record, as
evidenced by the fact that defense counsel remained silent when
informed by the court that it had received an “additional note” to
that sent requesting the testimony of Simmons and Carmichael. Because
the court failed to follow the O’Rama procedures, however, it cannot
be said with certainty whether defense counsel received such notice
off the record, and we decline to resolve the issue based on inference
and conjecture.

     Because it is unclear from the record whether defendant was
notified of the contents of the jury note or notes requesting a
readback of the testimony of Dr. Albert, Rucker and Weaver, we hold
the case, reserve decision and remit the matter to County Court for a
reconstruction hearing on that issue (see People v Martinez, 186 AD2d
14, 14-15; see generally People v Cruz, 42 AD3d 901, 901; People v
Russo, 283 AD2d 910, lv denied 96 NY2d 867).

     We agree with the dissent that the core requirements of CPL
310.30 are triggered only by a “substantive juror inquiry” (O’Rama, 78
NY2d at 280). We further agree that a request by the jury for a
readback of the entire testimony of a witness is not a substantive
inquiry, inasmuch as the appropriate response from the court to such a
note is “obvious” (People v Lockley, 84 AD3d 836, 838, lv denied 17
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                                                         KA 08-02494

NY3d 807; see generally People v Alcide, 95 AD3d 897, 898, lv granted
19 NY3d 956 [“Since the jury merely requested read-backs of certain
trial testimony, the alleged error did not constitute a mode of
proceedings error which would obviate the preservation requirement”];
People v Gerrara, 88 AD3d 811, 812-813, lv denied 18 NY3d 957, cert
denied ___ US ___, 133 S Ct 857; People v Bryant, 82 AD3d 1114, 1115,
lv denied 17 NY3d 792).

     On this record, however, it cannot be determined whether the jury
requested the entire testimony of witnesses Dr. Albert, Rucker and
Weaver. Indeed, the dissent acknowledges as much, stating that “we
can infer from the transcript” that the jury requested the entire
testimony of those witnesses. The dissent must resort to inference
here because, as noted, the court failed to comply with the O’Rama
procedures by marking the note as an exhibit and reading it into the
record. In any event, we do not believe that the inference drawn by
the dissent is supported by the transcript.

     If the jury requested only a portion of any of the witnesses’
testimony, a mode of proceedings error would have occurred if the
court failed to notify defense counsel of the jury note, considering
that input from defense counsel would have been helpful in determining
what portions of the testimony should be included in the readback. In
our view, given the incomplete nature of the record, the issue whether
the jurors requested a readback of the entire testimony of the
witnesses in question also should be resolved at the reconstruction
hearing, assuming, of course, that the court first determines that
notice of the unrecorded note was not in fact given to defense
counsel.

     We have reviewed defendant’s remaining contentions and conclude
that none warrants modification or reversal of the judgment.

     All concur except SMITH, J.P., and PERADOTTO, J., who dissent and
vote to affirm in the following Memorandum: We respectfully dissent
inasmuch as we conclude that there is no need for a reconstruction
hearing with respect to defendant’s unpreserved O’Rama contention (see
People v O’Rama, 78 NY2d 270). Because we agree with the majority
that the remainder of defendant’s contentions are without merit, we
would affirm the judgment without holding the case and remitting the
matter to County Court for a reconstruction hearing.

     Under O’Rama and its progeny, when the trial court receives a
“substantive juror inquiry” (id. at 280), CPL 310.30 requires the
court to provide “meaningful notice to counsel of the specific content
of the jurors’ request” (People v Kisoon, 8 NY3d 129, 134; see O’Rama,
78 NY2d at 276). As the Court of Appeals has explained, “[t]he point
of [its] decision in O’Rama . . . was ‘not 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, i.e., before the court gives its
formal response’ ” (People v Lykes, 81 NY2d 767, 769, quoting O’Rama,
78 NY2d at 278). Thus, the purpose of the notice requirement is to
“ensure counsel’s opportunity to frame intelligent suggestions for the
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                                                         KA 08-02494

fairest and least prejudicial response . . . to the jury” (Kisoon, 8
NY3d at 134; see O’Rama, 78 NY2d at 277-278). Where a jury note
“contain[s] a substantive inquiry, the [trial court]’s failure to
provide counsel an opportunity to participate meaningfully in
formulating its response [constitutes] a mode of proceedings error
that requires reversal,” even in the absence of preservation (People v
Stocks, 101 AD3d 1049, 1051; see People v Tabb, 13 NY3d 852, 852).

     We conclude that the jury notes at issue, which requested
readbacks of the entire testimony of various witnesses, were not
substantive in nature and, therefore, did not implicate the court’s
core responsibilities under CPL 310.30 (see People v Gerrara, 88 AD3d
811, 812-813, lv denied 18 NY3d 957, cert denied ___ US ___, 133 S Ct
857; People v Bryant, 82 AD3d 1114, 1114, lv denied 17 NY3d 792). The
record reflects that the court received three notes requesting
readbacks of the testimony of five witnesses. The second note
requested the testimony of Simmons and “Carmichael’s testimony of who
left the house before the shots were fired.” The third note requested
Carmichael’s entire testimony. Although the first note was not
summarized on the record, we can infer from the transcript that the
jury requested the testimony of Dr. Albert, Rucker, and Weaver. At
12:39 p.m., the court advised the jury that the court reporter “will
now read to you the testimony of Dr. Albert and . . . Rucker. After
that testimony, we’ll excuse you to have your lunch and to have the
court reporter further prepare her notes and then resume with the
testimony of the other witnesses.” The jury was excused at 1:00 p.m.
and, in the presence of defendant and defense counsel and outside the
presence of the jury, the court explained that “[a]t this time we’ll
read Mr. Simmons’ and [Weaver’s] [testimony] and we’ll go over . . .
Carmichael’s testimony before the jury hears it.”

     When the jury returned to the courtroom at 2:35 p.m., the court
advised the jury that “[a]t this time we’ll read the testimony of
[Weaver] for you and . . . Simmons and then we’ll excuse you for a few
moments while we clarify some issues on the Carmichael testimony.”
After a read back of the testimony of Simmons and Weaver, the court
again excused the jury and held a bench conference with counsel,
apparently to determine how best to respond to the jury’s request for
a portion of Carmichael’s testimony. Before that response was given,
however, the court received a third note requesting the entirety of
Carmichael’s testimony, which was then read to the jury.

     In our view, inasmuch as the jury merely requested readbacks of
the entire testimony of certain witnesses, defendant’s contention that
the court did not strictly comply with the procedure set forth in CPL
310.30 required preservation (see Gerrara, 88 AD3d at 812-813; Bryant,
82 AD3d at 1114). Notably, the nature of the jury’s inquiries
required no input from defendant or defense counsel in framing the
court’s responses thereto. The jury requested readbacks of the
testimony of five witnesses, and the court responded by reading the
testimony of those witnesses in full.

     In sum, because “neither defense counsel nor defendant could have
provided a meaningful contribution” to the court’s responses to the
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jury notes in question (People v Ochoa, 14 NY3d 180, 188), defendant
“was not denied the opportunity to provide input regarding a
substantive response or re-instruction to the jury” (Lykes, 178 AD2d
927, 927-928, affd 81 NY2d 767 [emphasis added]) and neither reversal
nor remittal for a reconstruction hearing is required.




Entered: April 26, 2013                         Frances E. Cafarell
                                                Clerk of the Court
