10-3834-pr
Munoz v. Burge

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 14th day of October, two thousand eleven.

Present:         ROSEMARY S. POOLER,
                 BARRINGTON D. PARKER,
                 DENNY CHIN,
                           Circuit Judges.

__________________________________________________

JOSE FERNANDEZ MUNOZ,

                              Plaintiff-Appellant,

                 v.                                                        10-3834-pr

JOHN BURGE, SUPERINTENDENT,

                        Defendant-Appellee.
__________________________________________________



For Plaintiff-Appellant:             Bowen Ranney (Ursula Bentele, of counsel, on the brief),
                                     BLS Legal Services, Inc., Brooklyn, N.Y.

For Defendant-Appellee:              Thomas M. Ross (Leonard Joblove & Sholom J. Twersky,
                                     on the brief), Assistant District Attorneys, of counsel, for
                                     Charles J. Hynes, District Attorney, Kings County,
                                     Brooklyn, N.Y.
       Appeal from the United States District Court for the Eastern District of New York
(Garaufis, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Jose Fernandez Munoz appeals from the denial of his petition for a writ of habeas corpus,
raising several claims under 28 U.S.C. § 2254. We assume that the parties are familiar with the
underlying facts and procedural posture of the case, as well as the issues on appeal.

       When a district court denies a prisoner’s petition for a writ of habeas corpus, “[w]e
review . . . [that] denial . . . de novo.” Anderson v. Miller, 346 F.3d 315, 324 (2d Cir. 2003).

        There is insufficient evidence in the record to support the claim that a court officer at
Munoz’s trial communicated with jurors in violation of New York law. “[A] defendant has . . .
the right to be present when the jury is given instructions or information by the court” – a right
that precludes “the court [from] . . . delegat[ing] to a nonjudicial staff member its authority to
instruct the jury on matters affecting their deliberations.” People v. Bonaparte, 78 N.Y.2d 26, 30
(1991). New York courts, however, apply a broad “presumption . . . that no official . . . will do
anything contrary to his [or her] official duty.” People v. Damiano, 87 N.Y.2d 477, 498 (1996)
(Bellacosa, J., dissenting in part) (alteration in original) (quoting Matter of Marcellus, 165 N.Y.
70, 77 (1900)).

          The only evidence that there were any “unlawful communications,” as Munoz argues,
between court personnel and the jury seems to be the absence of an explanation for how the
judge knew whom to question when investigating the source of the conflict among the jurors.
The New York Court of Appeals, however, has made clear that it “will not engage in appellate
speculation to recreate what the record simply does not reflect or suggest.” Damiano, 87 N.Y.2d
at 484. New York courts require “substantial” not speculative evidence in order to “overcome
. . . . the presumption of regularity.” People v. Velasquez, 1 N.Y.3d 44, 48 (2003).

        Munoz’s claim that his appellate counsel was ineffective for failing to challenge the trial
court’s failure to read two jury notes in open court also fails. In People v. O’Rama, 78 N.Y.2d
270 (1991), the New York Court of Appeals required that counsel be given “notice of the actual
specific content of” any notes from the jury. Id. at 277. In this case, however, defense counsel
never specifically objected to the court’s not having read the jury notes into the record. Given
the lack of a timely objection, any appellate claim raising the issue would ordinarily have been
waived.

         While the O’Rama Court found the error in that case so serious that the claim was
preserved for appellate review “notwithstanding that defense counsel did not object to the court’s
procedure until” later, id. at 279, that case present38/ed different facts from those at issue here.
While Munoz’s counsel may have been unaware of the court’s planned Allen charge, counsel
made no objection – even after the charge had been given – to the court’s failure to read the
notes, or even requested that they be read. Thus, any error in this case did not “ha[ve] the effect
of entirely preventing defense counsel from participating meaningfully in this critical stage of
the trial,” id., given that counsel could have pressed his claim but did not.

                                                 2
         Furthermore, at the time of Munoz’s appeal, New York courts had declined to review
O’Rama claims where the record was too sparse – or indeed silent – on the question of whether a
defendant’s rights under O’Rama had been violated. See People v. Dudley, 609 N.Y.S.2d 823,
824 (App. Div. 1994); People v. Larrabee, 607 N.Y.S.2d 769, 770 (App. Div. 1994). Here, one
could at best infer that counsel discussed the notes with the court in an off-the-record exchange.
Definitive proof, however, of what counsel knew and when, is lacking. While the law has since
changed, see People v. Tabb, 13 N.Y.3d 852, 853 (2009) (holding that an “absence of record
proof” constituted “a mode of proceedings error . . . requiring reversal”), we consider the law as
it existed at the time of the appeal for the purpose of Munoz’s ineffective assistance claim.

       Thus, New York courts at the time of the appeal would have concluded that Munoz’s
counsel was required to preserve his O’Rama claim, which he failed to do, if the record even
permitted review of the claim at all.

        For the foregoing reasons, the order of the district court denying appellant’s petition for
a writ of habeas corpus is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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