author: Fahey, J. Rivera, J.

text:
    [41 NE3d 1111, 20 NYS3d 296]
    The People of the State of New York, Respondent, v Anthony Barksdale, Appellant.
    Argued September 8, 2015;
    decided October 22, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant.
    Anthony Barksdale’s mere presence in the lobby of a housing complex enrolled in the “trespass affidavit program” did not provide Officer Nieves with an “objective credible reason” to approach and question him. (People v Cantor, 36 NY2d 106; People v Berrios, 28 NY2d 361; People v Dodt, 61 NY2d 408; People v Misuis, 47 NY2d 979; People v Hodge, 44 NY2d 553; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181; People v Leung, 68 NY2d 734; People v Bronston, 68 NY2d 880; People v Marine, 142 AD2d 368.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheila L. Bautista and Beth Fisch Cohen of counsel), for respondent.
    The record contains ample support for the Appellate Division’s finding that police officers patrolling a trespass affidavit building for intruders had an objective credible reason to ask defendant whether he lived in the building. Because the decision involved a mixed question of law and fact, the Appellate Division’s determination is outside the scope of this Court’s review. (People v Martin, 19 NY3d 914; People v Francois, 14 NY3d 732; People v McIntosh, 96 NY2d 521; People v Wheeler, 2 NY3d 370; People v Damiano, 87 NY2d 477; People v McRay, 51 NY2d 594; People v Harrison, 57 NY2d 470; People v Centono, 76 NY2d 837; People v Johnson, 109 AD3d 449; People v De Bour, 40 NY2d 210.)

      New York Civil Liberties Union Foundation, New York City CJordan Wells, Alexis Karteron and Christopher Dunn of counsel), The Bronx Defenders, Bronx (Robin Steinberg, Johanna B. Steinberg, Marika Meis and Scott Levy of counsel), Latino Justice PRLDEF, New York City (Foster Maer of counsel), New York Lawyers for the Public Interest, New York City (eI. McGregor Smyth, Jr., of counsel), and Shearman & Sterling LLP, New York City (Jeffrey J. Resetarits of counsel), for New York Civil Liberties Union and others, amici curiae.
    I. The Appellate Division’s opinion rests on the faulty assumption that enrollment in the trespass affidavit program signifies that a building is the site of criminal activity. (People v McIntosh, 96 NY2d 521; People v Hollman, 79 NY2d 181; Ligon v City of New York, 925 F Supp 2d 478; People v Roque, 99 NY2d 50.) II. The intrusive and potentially incriminating questions posed to appellant exceeded the limits of a level one encounter and therefore required a founded suspicion of criminality. (People v Hollman, 79 NY2d 181; People v Tinort, 272 AD2d 206.)
   OPINION OF THE COURT

Fahey, J.

On this appeal we consider the admissibility of evidence seized following defendant’s arrest in the lobby of an apartment building in Manhattan that was enrolled in the trespass affidavit program (TAP). Under the particular facts and circumstances of this case we conclude that the record supports the lower courts’ determinations that the police had an objective credible reason to approach and request information from defendant, and thus to begin the encounter that culminated in his arrest and the seizure of the disputed evidence.

Defendant pleaded guilty to three counts of criminal possession of a weapon in the third degree, but on this appeal he challenges only one of those charges, which is based on the discovery of a razor blade on defendant’s person following his arrest for criminal trespass in the third degree on April 21, 2009. Defendant sought suppression of the razor blade on the ground “that he was unlawfully stopped and arrested,” and at the ensuing hearing the People presented the testimony of a police officer who participated in the seizure of that weapon.

On the date in question, the police officer was directed to conduct a foot patrol in a Manhattan neighborhood and, in furtherance of that assignment, he looked into buildings for the purpose of locating either trespassers or those committing other crimes. The officer targeted buildings enrolled in the TAP, which he characterized as a form of solicitation of police assistance for structures that are prone to trespassers. The officer stated that buildings included in the TAP have signs denoting their enrollment, and that trespassers are subject to arrest. While on his foot patrol the officer observed such a sign at an apartment building on West 129th Street, and he and his police partner entered that building apparently for the purpose of conducting a “vertical patrol,” that is, a sweep of each floor of the building.

When they entered the building, the officers saw defendant standing in its lobby. Within a few minutes they asked defendant “what he was doing [there].” Defendant responded that he was visiting a friend but, upon further questioning, defendant acknowledged both that he could not identify that friend and that he did not live in the building. The officers then arrested defendant, whereupon the testifying officer’s police partner frisked defendant and found a razor blade in one of his pants pockets. Although there was no private security guard in front of the building, the testifying officer recalled that the door to the building had a lock on it, and that he saw a sign indicating that the building was enrolled in the TAP when he entered that structure.

The hearing court denied suppression of the razor blade, concluding that “[b]ecause the building [was] part of the [TAP, the testifying officer] had an objective credible reason to ask defendant why he was there,” and defendant subsequently pleaded guilty to, inter alia, the relevant count of criminal possession of a weapon in the third degree. On appeal, the Appellate Division affirmed, writing that the testifying officer’s observation of “defendant standing in the lobby of a [TAP] building . . . gave [him] an ‘objective credible reason’ to ask defendant whether he lived there, which constituted a level one request for information” under this Court’s long-standing metric for evaluating police-initiated encounters with civilians (110 AD3d 498, 498 [1st Dept 2013], quoting Hollman, 79 NY2d at 190). The Appellate Division further concluded that the testifying officer’s

“inquiry was not based merely on the reputation of the area, but also on the fact[s] that the building was so prone to trespassing that the landlord had request [ed] police assistance in removing intruders!,] • • • that defendant was in a plainly nonpublic lobby of a posted trespass affidavit building, and that the officer was aware of this at the time he made his inquiry” (110 AD3d at 498-499 [internal quotation marks omitted]).

A Judge of this Court granted defendant leave to appeal (23 NY3d 1034 [2014]).

Our analysis begins with the points “that whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact,” and that, in such circumstances, “our review is limited to whether there is evidence in the record supporting the lower courts’ determinations” (People v McIntosh, 96 NY2d 521, 524 [2001]). On the merits, our analysis proceeds under the first of the four levels of De Bour, which sets a low bar for an initial encounter: it “permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality” (People v Moore, 6 NY3d 496, 498 [2006]; see De Bour, 40 NY2d at 223).

Here the record reflects that the encounter occurred in a private space restricted by signage and a lock, and that police assistance in combating trespassing had been sought through enrollment in the TAP. Put simply, the coupling of defendant’s presence in the subject building with the private and protected nature of that location supports the intrusion giving rise to what became the seizure in question. We conclude that there is record support for the determination that the police had an objective credible reason to request information from defendant (see generally People v Hendricks, 43 AD3d 361, 362-363 [1st Dept 2007]; People v Tinort, 272 AD2d 206, 206-207 [1st Dept 2000], lv denied 95 NY2d 872 [2000]).

In so concluding we note that the police patrol at issue here was intended in part to combat trespassing, that is, “knowingly entering] or remaining] unlawfully in or upon premises” (Penal Law § 140.05), that the building at issue was enrolled in the TAP for the purpose of addressing that problem, and that this branch of the TAP is rooted in tenant protection throughout Manhattan. Under these circumstances a police officer could have identified a trespasser only by requesting information.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.

Rivera, J.

(dissenting). According to the undisputed facts, police officers entered a building, saw defendant standing in the lobby, immediately approached and stopped him, and asked what he was doing in the building. Based on his initial response, police continued questioning defendant and, upon finding his answers unsatisfactory, arrested him. He now challenges the officers’ initial approach and request for information as a violation of his right to be free from unwarranted police intrusions.

On the strength of our precedent, I disagree with the majority’s conclusion that the police may approach and request information from a person, who the police fail to observe doing anything other than standing still, simply because the area where the police find the person is the lobby of a building with an alleged history of criminal trespass activity. This conclusion is not supported by De Bour and its progeny, and compromises the privacy interests that first motivated this Court to adopt the four-tiered analytic framework for evaluating police-initiated encounters (see People v Hollman, 79 NY2d 181, 195 [1992]; People v De Bour, 40 NY2d 210 [1976]). Therefore, I dissent.

As in all cases implicating the De Bour analysis, our review of the issues must begin with an understanding that the holding in De Bour

“reflected our judgment that encounters that fall short of Fourth Amendment seizures still implicate the privacy interests of all [persons] and that the spirit underlying th[e] words [of the State or Federal Constitution] required the adoption of a State common-law method to protect the individual from arbitrary or intimidating police conduct” (Hollman, 79 NY2d at 195).

The approach in De Bour balances the rights of the individual to be free from investigative confrontations and the authority of the police to approach individuals in furtherance of their law enforcement function (40 NY2d at 219), and “is largely based upon considerations of reasonableness and sound State policy” (Hollman, 79 NY2d at 195).

As now well-established, De Bour provides “a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity” (Hollman, 79 NY2d at 184). “Each progressive level . . . authorizes a separate degree of police interference with the liberty of the person approached and consequently requires escalating suspicion on the part of the investigating officer” {id. at 185). As relevant to the issues raised in this appeal, “a police officer, acting with the requisite level of suspicion, [who] approach [es] an individual for information” may request identification and ask “questions that relate to the person’s identity and reason for being in the area” (id. at 190-191; see De Bour 40 NY2d at 220). This type of police encounter, referred to as a level one or tier one intrusion, constitutes an interference with the individual’s liberty, and therefore must be justified by “an objective credible reason[,] not necessarily indicative of criminality” (Hollman, 79 NY2d at 185; De Bour, 40 NY2d at 223).

To ensure against arbitrary conduct, an officer’s actions cannot have resulted from “mere whim, caprice or idle curiosity” (De Bour, 40 NY2d at 217; Hollman, 79 NY2d at 190; see also People v McIntosh, 96 NY2d 521, 525 [2001]). Instead, the legality of an encounter under our De Bour jurisprudence depends on “whether a nexus to [defendant’s] conduct existed, that is, whether the police were aware of or observed conduct which provided a particularized reason to request information” (McIntosh, 96 NY2d at 527). The fact that the encounter occurs in an area with a reputation for criminal activity, alone, cannot provide the requisite justification for even “basic, nonthreatening questions regarding . . . identity, address or destination” (Hollman, 79 NY2d at 185; see also McIntosh, 96 NY2d at 527 [“fact that an encounter occurred in a high crime vicinity, without more,” fails to pass scrutiny under De Bour and Hollman], citing People v Holmes, 81 NY2d 1056, 1058 [1993]).

A court’s determination of the outer contours of a level one police encounter is further informed by this Court’s recognition of two limitations on police officers’ authority to approach and ask questions. First, is the Hollman Court’s instruction that “[t]he four-tiered method for analyzing police encounters gives officers acting in their law enforcement capacity leeway in approaching individuals for information. It does not, however, permit police officers to ask intrusive, potentially incriminating questions unless they have founded suspicion that criminality is afoot” (79 NY2d at 192). Second, is the well-established constitutional right of individuals “ ‘to be let alone’ and to refuse to respond to police inquiry” (People v May, 81 NY2d 725, 728 [1992], citing People v Howard, 50 NY2d 583, 590 [1980]). As the Court has explained, “while the police [have] the right to make the inquiry, defendant ha[s] a constitutional right not to respond” (Howard, 50 NY2d at 590; Davis v Mississippi, 394 US 721, 727 n 6 [1969]).

Here, the officers immediately approached defendant upon entering the lobby, after traveling directly from the building’s entrance. They had no prior information that defendant was trespassing or involved in some other illegal activity, which might justify a request for information {see McIntosh, 96 NY2d at 527 [officer might be justified under De Bour level one to request information based on a tip or other information about illegal activity in the area, including information that a fugitive or suspect had been reported in a specific area]). There were no “attendant circumstances . . . sufficient to arouse the officers’ interest” of the type recognized in De Bour, and our subsequent cases {see De Bour, 40 NY2d at 220 [where officers observed De Bour “cross( ) the street to avoid walking past” them, in a drug activity prone area]; Hollman, 79 NY2d at 193 [officer observed Hollman move his and a companion’s bags several times after boarding a bus]; McIntosh, 96 NY2d at 527 [investigator observed defendant, seated in the back of the bus, pushing a black object between himself and a companion]). Nor did the officers personally observe conduct by defendant that would provide an objective, credible, particularized reason to request information, such as defendant walking around the lobby with no apparent purpose, or standing idle for a lengthy period of time, both of which would suggest he was neither tenant nor guest. Nor did the officers find defendant uncertain about the location of the elevator or staircase, or other common areas of the building, which are known to tenants and the building’s employees, again providing an objective basis to inquire as to why he was in the lobby. Instead, the only information the officers had about the defendant was that he was standing in the lobby of a building, which was alleged by the landlord to have been the site of prior criminal trespass. However, under our law, even a minimal intrusion of defendant’s liberty requires that the police officers have an objective credible reason that is not based solely on the alleged criminal activity of defendant’s location (McIntosh, 96 NY2d at 527).

Nevertheless, the majority concludes that the police encounter here is not based solely on the alleged criminal activity in the building because defendant’s presence in a trespass affidavit program (TAP)-enrolled building was coupled “with the private and protected nature of that location” (majority op at 144). I disagree with what is essentially the majority’s “presence plus TAP” justification for a level one police intrusion, because the basis for TAP enrollment is the building’s alleged history of criminal activity. A building participating in TAP is nothing other than an alleged “high crime vicinity,” which, in turn, is the same proposed additional factor this Court explicitly rejected in McIntosh as insufficient to justify a request for information.

Of course, a location’s reputation for criminal activity may be a factor, along with other information, that provides an officer with the credible objective reason to request information (see McIntosh, 96 NY2d at 526-527). Still, criminal activity cannot be coupled, as the majority concludes here, with such benign conduct as standing still. While the requisite objective credible reason need not indicate criminality (see De Bour, 40 NY2d at 223), it must, at least, suggest a reason to ask an individual for their identifying information (see McIntosh, 96 NY2d at 527 [request for information justified only if “a nexus to (defendant’s) conduct existed”]).

There is no way of escaping the simple truth that under the majority’s approach police officers are free to inquire of those who are not trespassers, such as tenants and their guests, on the assumption that they are breaking the law by their mere presence in a TAP-enrolled building. That type of over inclusive policing cannot be squared with our requirement that a nexus to the conduct exist, that is to say that the police must have a particularized reason to request information, based on the awareness of information or the observation of conduct (see id. at 527). It also ignores the “considerations of reasonableness and sound State policy” (Hollman, 79 NY2d at 195), namely, the privacy interests of all persons, and our commitment to the “protection of] the individual from arbitrary or intimidating police conduct” that provide “continued vitality” to the De Bour analytic framework (id.; see De Bour, 40 NY2d at 218-220).

The majority seeks to rationalize its holding, and the impact of its decision on TAP-enrolled building residents and their guests, by its assertions that “the police patrol at issue here was intended in part to combat trespassing,” and that a police officer could have identified a trespasser only by requesting information (majority op at 144). The argument that routine police encounters, like the one at issue here, are necessary to facilitate law enforcement plainly ignores the De Bour Court’s warning that “the area of crime prevention” “is highly susceptible to subconstitutional abuses” (40 NY2d at 220). Indeed, the Court saw fit to “subject [this function] to the greatest scrutiny; for whereas a [police officer’s] badge may well be a symbol of the community’s trust, it should never be considered a license to oppress” (id. at 220; see also id. at 220 n 2 [noting that certain law enforcement techniques used “to create an atmosphere of security .... may infringe on the privacy and freedom of individuals”]). The majority’s sanction of the blanket intrusion on the liberty of all persons encountered in a building, including those wholly innocent of any criminal activity, cannot meet such heightened review.

With respect to the contention that police can only determine whether someone is a trespasser by approaching and requesting information from an individual who is standing in a private area of a building, the same could be said of other crimes where a person could be standing in plain sight and be in violation of the law, such as, for example, crimes of possession (see Penal Law § 265.02 [criminal possession of a weapon in the third degree]; Penal Law § 220.16 [criminal possession of a controlled substance in the third degree]). The majority’s analysis thus results in the evisceration of level one of the De Bour framework as applied to other categories of crimes, not just trespassing.

Even if this were not the case, there are no facts in the record here, or case law, in support of the majority’s premise. All that occurred here is that the officers entered the building and immediately approached the defendant and started asking him questions. However, where an officer or third party’s safety is not implicated, an officer can become aware of information about a person that provides an articulable reason to initiate an encounter: a “nexus to conduct” (McIntosh, 96 NY2d at 527). Based on that nexus, the officer is justified in requesting information, as well as “in keeping defendant under observation” (Howard, 50 NY2d at 590).

Nevertheless, permitting an officer to request information from someone standing in a TAP-enrolled building would be problematic for another reason: the officer is not assured of a truthful answer. Based on the individual’s response, the officer will either accept it as true, which may not be the case, or continue to ask questions, presumably because the officer suspects the person is not answering truthfully and is indeed trespassing. This very scenario reveals the fundamental problem with the majority’s analysis. That is to say, that the initial police encounter, in practice, will, by necessity, escalate beyond a level one request for information. As this Court has explained, “[o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that [the person] is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is no longer merely seeking information” (Hollman, 79 NY2d at 185). Rather than preserve the integrity of the De Bour analytic framework, this potential for the escalation of police encounters undermines the “continued vitality” of that analysis.

No less so because the request for information involved in this case is not a “general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area” (id. at 191). Instead, it is a request for information that by its nature serves to incriminate, or potentially increase an officer’s suspicion of criminal activity.

Along these same lines of concern, the majority fails to address what happens if the person approached refuses to answer, and remains silent, or says, “I do not have to talk to you.” Or, what if the individual simply walks away? Given that an individual in a police-initiated encounter may seek to exercise that person’s “right to be let alone” (People v Moore, 6 NY3d 496, 500 [2006]), and this Court’s previous statements that an individual need not talk to an officer and may walk away from the police in a noncustodial encounter (see Howard, 50 NY2d at 590-591; May, 81 NY2d at 728; People v Holmes, 81 NY2d 1056, 1058 [1993]; Moore, 6 NY3d at 500), the potential for escalation seems all too likely.

The majority fails to consider what this Court clearly recognized in De Bour, namely that police encounters are fraught with tension. Even a level one encounter can cause anxiety. For, “[fit is certainly unsettling to be approached by a police officer and asked for identification. Even though [the Court] term[ed] this a request for information, [it] d[id] not mean to suggest that a reasonable person would not be taken aback by such a request” (Hollman, 79 NY2d at 192). Accordingly, we have developed legal rules sensitive to the reality “that the tone of police-initiated encounters with civilians can be subtle and ever-shifting, that words and gestures are susceptible to many varying interpretations, and that suspicion can grow based on intangibles evident only to the eyes of a trained police officer” {id. at 191).

As a final matter, although not specifically addressed by the majority, one of the People’s arguments warrants consideration, given that the argument relies on general notions of fairness and just treatment under the law. The People argue that residents of buildings in high-crime areas “are entitled ... to feel safe in their homes” and “should not have to contend with intruders simply because they do not have a doorman, security guard, or other building employee to restrict access.” Certainly our law ensures that persons unable to afford the private security available to those with greater financial means are nonetheless guaranteed the full protection of our laws, regardless of their economic status. That is, of course, the promise of our legal system: all are equal under the law. However, TAP enrollment of a building known for criminal activity does not ensure for its residents an equal footing with persons living, visiting, or working in buildings with private security personnel. The experiences of these two groups during encounters with the “security force” in their respective buildings are not similar. In a TAP-enrolled building the police do not know the tenants — otherwise they would have no reason to request information of those they encounter during their routine vertical sweeps. In contrast, in a building with private security personnel, the tenants, and often their guests, are known to the building employees and thus can avoid the indignity of being assumed to be trespassers. Moreover, in a building with private security personnel, it may be possible for the tenants to influence the application of security protocols, and choose how they want their building protected. Here, there is nothing to suggest that the tenants participated in deciding to enroll in TAP. Given these differences, tenants in TAP-enrolled buildings are not assured equal treatment by stripping them of their rights to be free from police encounters that fail to meet minimal standards.

Judges Pigott, Abdus-Salaam and Stein concur; Judge Rivera dissents in an opinion in which Chief Judge Lippman concurs.

Order, insofar as appealed from, affirmed.

      . That request arguably implicates one of the higher levels of the multitiered framework for evaluating police-initiated encounters with private citizens, including those that occur in residential apartment buildings (see People v Roque, 99 NY2d 50, 52 [2002]), that this Court established in People v De Bour (40 NY2d 210, 223 [1976]) and People v Hollman (79 NY2d 181, 184-185 [1992]). But heretofore defendant has not approached this suppression question as implicating anything other than a level one De Bour inquiry, and we thus do not consider his belated request at oral argument to apply a different level of that framework (see generally People v Lovett, 25 NY3d 1088, 1091 [2015]). Nor do we have any cause to address the propriety of either of the police officers’ hypothetical actions in the event defendant had refused to respond to his inquiry, as defendant advances no arguments in that respect.

      . This Court has similarly described the TAP:
      “Often a building owner or manager files a ‘trespass affidavit’ with police stating that the building has been plagued by illegal drug trade and asks police to patrol the building for trespassers. Police then stop people they encounter in the halls to ask for identification and to inquire if they are residents or otherwise lawfully in the building” (Roque, 99 NY2d at 52).
      We note, however, that Roque’s description of the TAP is not perfectly applicable here because the materials before us reflect that the New York County District Attorney’s Office, not the New York City Police Department (NYPD), controls the enrollment of buildings in the TAP in Manhattan. That distinction is arguably material to this matter given the reference by amici including the New York Civil Liberties Union to discovery in Ligon v City of New York (925 F Supp 2d 478 [SD NY 2013]), a class action brought against the City of New York and the NYPD challenging “stops made by the police on suspicion of trespass outside of certain privately-owned buildings in the Bronx” (id. at 483). Based on Ligón, the amici contend that the order appealed from “rests on the faulty assumption that enrollment in the [TAP] signifies that a building is the site of criminal activity.” We do not, however, credit that point here inasmuch as the materials before us reflect that the TAP is administered differently in Manhattan than it is in New York City’s other boroughs.

      . Our decision herein does not conflict with McIntosh (96 NY2d 521), which teaches that geography alone, that is, mere presence in a high-crime location, does not provide a predicate for even a level one De Bour inquiry (see id. at 526-527). The intrusion here was borne of more than simply presence in a high-crime neighborhood, inasmuch as it was based on defendant’s presence in a private area of a building, to which access was restricted by signage and a lock, and which was enrolled in the TAP.


source: Caselaw Access Project

author: Fahey, J. Chief Judge Lippman

license: Public Domain

text:
    [41 NE3d 1130, 20 NYS3d 315]
    The People of the State of New York, Appellant, v Kenneth Nealon, Respondent.
    Argued September 10, 2015;
    decided October 27, 2015

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Christopher J. Blira-Koessler, Robert Masters, John M. Castellano and Johnnette Traill of counsel), for appellant.
    I. This Court should hold, consistent with the totality of its O’Rama jurisprudence, that there is no mode of proceedings error in cases such as this one, where the court reveals the full contents of jury notes to defendant, defense counsel, and the prosecutor in front of the jury, and defendant has ample opportunities to object and suggest responses to the notes. (People v Malloy, 55 NY2d 296; People v Gonzalez, 293 NY 259; People v O’Rama, 78 NY2d 270; People v Kisoon, 8 NY3d 129; People v Starling, 85 NY2d 509; People v Alcide, 21 NY3d 687; People v Williams, 21 NY3d 932; People v Ramirez, 15 NY3d 824; People v Walston, 23 NY3d 986; People v Silva, 24 NY3d 294.) II. The resettled record demonstrates that there was no O’Rama error in this case. (Bohlen v Metropolitan El. Ry. Co., 121 NY 546; People v O’Rama, 78 NY2d 270; People v Minaya, 54 NY2d 360; People ex rel. Hirschberg v Orange County Ct., 271 NY 151; New York Rubber Co. v Rothery, 112 NY 592; People v Dekle, 56 NY2d 835; People v Walston, 23 NY3d 986; Dalrymple v Williams, 63 NY 361; People v Wright, 56 NY2d 613; People v Gammon, 19 NY3d 893.)

      Lynn W.L. Fahey, Appellate Advocates, New York City (Kendra L. Hutchinson of counsel), for respondent.
    I. As the Appellate Division correctly held, the trial court’s failure to disclose the contents of substantive notes requiring counsel’s input or to afford counsel the opportunity to provide input on the record, prior to actually responding in a manner that did not repeat the final charge with the jury already present, was a mode of proceedings error, for this procedure unfairly surprised counsel and entirely prevented meaningful participation. (People v O’Rama, 78 NY2d 270; People v Kisoon, 8 NY3d 129; People v Cruz, 14 NY3d 814; United States v Ronder, 639 F2d 931; People v Silva, 24 NY3d 294; People v Walston, 23 NY3d 986; People v Tabb, 13 NY3d 852; People v Cook, 85 NY2d 928; People v Alcide, 21 NY3d 687; People v DeRosario, 81 NY2d 801.) II. The issues of resettlement and reconstruction are unappealable and unreviewable in this case; in any event, because a trial court is obligated to make a contemporaneous record of its compliance with People v O’Rama (78 NY2d 270 [1991]), the Appellate Division acted well within its discretion in refusing to consider the “resettlement” findings or “reconstruct” the record. (People v Richardson, 100 NY2d 847; People v Walston, 23 NY3d 986; People v McRay, 51 NY2d 594; People v Gruttola, 43 NY2d 116; People v Gallina, 66 NY2d 52; People v Herman L., 83 NY2d 958; People v Paz, 158 AD2d 1008; People v LaSalle, 95 NY2d 827; People v Santorelli, 95 NY2d 412; People v Minaya, 54 NY2d 360.)
   OPINION OF THE COURT

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 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.

L

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 robbery in second degree does not 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 appeal (23 NY3d 1065 [2014]). We now reverse.

IL

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 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 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 notes 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 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 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).

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 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 read-backs” (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 “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 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).

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 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 to responding to the jury” (Walston, 23 NY3d at 989 [emphasis added and 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 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.

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.

Chief Judge Lippman

(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 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 [1991]), 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 279) 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 op at 162), betrays a serious misconception of what maximal participation by counsel entails at this uniquely crucial juncture of a 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 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.). 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 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 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 nondisclosure 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 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 nonwaivable 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 nonwaivable (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 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, 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. 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 “count [ed] towards [first] or [second] degree” (the jury note did not 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 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 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.

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

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.

       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 167). 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).

       The majority insists that this sentence reflects a proposed “rule” which it then attempts to state with great specificity (majority op at 161 n). 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.


author: Stein, J.

text:
    [42 NE3d 688, 21 NYS3d 191]
    The People of the State of New York, Respondent, v Christopher E. Walker, Appellant.
    Argued September 17, 2015;
    decided October 27, 2015

      POINTS OF COUNSEL

      Phillips Lytle LLP, Buffalo (Timothy W. Hoover and Patrick A. Sheldon of counsel), and Timothy P. Donaher, Public Defender CJames Eckert of counsel), for appellant.
    Supreme Court erred in charging the standard initial aggressor instruction without relating the charge to the facts of the case involving Christopher E. Walker’s defense of another, thus charging the jury with an instruction that was confusing, was misleading, was an inaccurate statement of law, and was totally incomprehensible as applied to the facts. (People v Medina, 18 NY3d 98; People v Russell, 266 NY 147; People v Umali, 10 NY3d 417; People v Andujas, 79 NY2d 113; People v Drake, 7 NY3d 28; People v Young, 11 NY2d 274; People v Goetz, 68 NY2d 96; People v Melendez, 155 Misc 2d 196; People v Lauderdale, 295 AD2d 539; People v Emmick, 136 AD2d 892.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    The initial aggressor instruction was correct and defendant did not request that the court further marshal the evidence as to the initial aggressor issues. (People v Chessman, 54 NY2d 1016; People v McWilliams, 48 AD3d 1266, 10 NY3d 961; People v Culhane, 45 NY2d 757; People v Melendez, 155 Misc 2d 196; People v Saunders, 64 NY2d 665.)
   OPINION OF THE COURT

Stein, J.

On this appeal, defendant argues that the standard criminal jury instruction on the “initial aggressor exception” to the justification defense misstates the applicable law where defendant claimed that he intervened in an ongoing fight that began in his absence in order to shield a third party from an unlawful attack. We agree and, therefore, reverse.

I

Defendant was charged in an indictment with murder in the second degree after stabbing and killing the victim during a fight between the victim, defendant’s brother and defendant’s girlfriend that allegedly started at the victim’s home, in defendant’s absence. Defendant testified that he was at his own home when his former wife notified him that someone was beating his brother with a hammer at a house down the street. Defendant grabbed a kitchen knife and went to help his brother, who he found on the victim’s porch. Defendant averred that he ran onto the victim’s porch, and tried to break up the fight after he saw the victim — who was high on cocaine and drunk — hitting his brother in the head with a hammer. Defendant claimed that, when the victim turned to hit him and drew back the hammer as if to strike him again, defendant threw up his arm to stop the blow and then swung his arm around, stabbing the victim in the chest. After the victim jumped or fell from the porch, defendant grabbed the hammer and walked home with the others. Defendant’s brother later wrapped the knife and hammer in defendant’s bloody shirt and placed them under the stairs leading to defendant’s front porch, where the police found them.

Subsequent testing revealed the victim’s DNA on the handle of the hammer. In addition, several eyewitnesses testified at trial that defendant’s brother and girlfriend were arguing with the victim, that the three of them began physically fighting with each other, and that, shortly afterward, defendant ran onto the victim’s porch, leading to a larger scuffle at the end of which the victim staggered and fell off his porch. According to these witnesses, after the three kicked the victim, defendant walked back to his house with blood on his shirt and a knife in his hand.

At the charge conference, Supreme Court indicated that it would, at defendant’s request, give a charge on the justification defense. Defendant then specifically requested that the court read the standard criminal jury instruction on justification, but exclude the portion that addressed the initial aggressor rule, because defendant did not “stand in the shoes of anybody initially involved in the fight.” Alternatively, defendant argued that, if an initial aggressor charge “were to be used at all[, it] should indicate the first person to use deadly force, not offensive force.” In contrast, the People asserted that there was “a fair view of the evidence to show that . . . defendant [was] acting in concert with” his brother and girlfriend, which “makes him accountable as an initial aggressor.”

The court reserved decision on the issue, eventually ruling at a subsequent charge conference that the initial aggressor charge, as then set forth in the criminal jury instructions, was proper because it was supported by a reasonable view of the evidence. The court stated, however, that it would add language, based upon People v McWilliams (48 AD3d 1266 [4th Dept 2008], lv denied 10 NY3d 961 [2008]), that where a “defendant initiated non-deadly force and [was] met with deadly physical force [,] the defendant may be justified in the use of deadly physical force. In that case the term initial aggressor would be properly defined as the first person in the encounter to use deadly physical force.” Defendant reiterated his request that any language regarding the initial aggressor rule be omitted entirely because he was “concerned as to whether or not there would be confusion as to which person . . . they need to look at in terms of being an initial aggressor”; the court again denied that request.

In summation, the prosecutor argued that the evidence demonstrated that defendant “brought this butcher knife . . . to a verbal argument that he had no business being a part of.” Although thereby acknowledging that defendant arrived after the argument had commenced, the prosecutor described the conflict in a manner that made it appear as though defendant was acting in concert with his brother and his girlfriend from the beginning, characterizing the “circumstances of this argument or confrontation” as “a three on one. Three people [20] years younger than [the victim] on his own porch accosting him.” The prosecutor repeatedly stated that “no matter how hard [the victim] tried, they just wouldn’t leave” (emphasis added), “[the victim] was just trying to get them to leave” (emphasis added), and that “[i]f the defendant would have just left the porch that night, [the victim] would have lived to see another day.” The prosecutor also argued that the evidence showed that defendant “and his accomplices” brought the hammer to the victim’s house, and asked the jury to consider “[h]ow was it that the defendant and his accomplices came on to [the victim’s] porch?”

Thereafter, the court charged the jury on defendant’s justification defense, explaining that “[u]nder the law a person may use deadly physical force upon another individual when and to the extent that he reasonably believes it to be necessary to defend himself or someone else from . . . the use or imminent use of deadly physical force by such individual.” The court further charged the jury on the initial aggressor rule, stating, as relevant here,

“Notwithstanding those rules that I just explained, the defendant would not be justified in using deadly physical force . . . if he was the initial aggressor. Initial aggressor means the person who first attacks or threatens to attack . . . Where there is a reasonable view of the evidence that the defendant initiates non-deadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and ... in such cases the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force ... A person who reasonably believes that another is about to use deadly physical force upon him need not wait until he is struck or wounded. He may in such circumstances be the first to use deadly physical force so long as he reasonably believed it was about to be used against him . . . Arguing, using abusive language, calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor.”

The jury acquitted defendant of second-degree murder, but found him guilty of manslaughter in the first degree. Supreme Court subsequently sentenced defendant to 25 years in prison, to be followed by five years of postrelease supervision. The Appellate Division unanimously affirmed the judgment of conviction (114 AD3d 1134 [4th Dept 2014]), and a Judge of this Court granted leave to appeal (23 NY3d 1044 [2014]).

IL

It is well settled that, “[i]n evaluating a challenged jury instruction, we view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal” (People v Medina, 18 NY3d 98, 104 [2011]; see People v Umali, 10 NY3d 417, 426-427 [2008], cert denied 556 US 1110 [2009]). Reversal is appropriate — even if the standard criminal jury instruction is given — when the charge, “read ... as a whole against the background of the evidence produced at the trial,” likely confused the jury regarding the correct rules to be applied in arriving at a decision (People v Andujas, 79 NY2d 113, 118 [1992]; see Umali, 10 NY3d at 427). When the defense of justification is raised in cases involving deadly force, “the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” (Umali, 10 NY3d at 425). As the trial court properly recognized, the justification defense is not available to an initial aggressor except in circumstances not present here (see Penal Law § 35.15 [1] [b]). However, while the portions of the charge that the court read to the jury regarding the initial aggressor rule were accurate in themselves, defendant correctly argues that the charge, taken as a whole, was confusing and misleading under the circumstances of this case because the court did not go on to explain the manner in which the initial aggressor rule applies when a defendant intervenes in an ongoing struggle to protect a third party who the defendant reasonably believes is being unlawfully beaten.

Traditionally, this Court applied an “alter ego rule” to such scenarios, holding that in cases of simple, third-degree assault, an intervenor stood in the shoes of the third party being assaulted and intervened at his own peril that he was acting under a mistaken belief of fact regarding the lawfulness of the beating (see People v Young, 11 NY2d 274, 275 [1962]). The Court reasoned that the right of a person to defend another was not greater than the right of the third party to defend himself or herself (see id.). The Court’s decision in Young was criticized extensively. In particular, commentators argued that

“a rule of law that an intervener acts at his own peril, especially if the decision is widely publicized, may well deter conduct that would actually assist the process of law enforcement because of the potential intervener’s fear that he may be mistaken about the facts and therefore may subject himself to criminal liability” (see Recent Developments, Intervenor Held Liable for Assault Despite Reasonable Belief That His Conduct Protected Another from Unlawful Harm, 63 Colum L Rev 160, 168 [1963]).

Shortly after Young was decided, the Penal Law was revised. The Commentaries to Penal Law § 35.15; — written by the executive director of the Commission on Revision of the Penal Law and Criminal Code and counsel to the Commission (see McKinney’s Cons Laws of NY, Book 39 at iii-iv [1967 ed])— indicate that the revisions legislatively overruled Young, stating that if the case “were to be litigated under the revised provision, a different result would be required” (Richard G. Denzer & Peter McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 35.15 at 63 [1967 ed]). Indeed, as then-Justice Theodore T. Jones recognized in People v Melendez (155 Misc 2d 196, 201 [Sup Ct, Kings County 1992]), the Penal Law was further revised to permit a justification defense to be considered even if the defendant had operated under a mistake of fact regarding the innocence of the person being defended, providing that “[a] person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless . . . [s]uch factual mistake is of a kind that supports a defense of justification as defined in article [35] of this chapter” (Penal Law § 15.20 [1] [c] [emphasis added]).

The court in Melendez held that a charge on justification in the context of the defense of another that is “[t]otally lacking in . . . any guidelines as to the law where the person protected is a wrongdoer or initial aggressor . . . [is] confusing and misleading” (155 Misc 2d at 197-198). Regarding the potential confusion over the term “initial aggressor” in the context of defense of another, Melendez explained that

“[o]rdinarily, the ‘good Samaritan’ intervenor would be the initiator of the contact between himself/ herself and the person struggling with the person being defended. Thus, if ‘initial aggressor’ referred to the contact between [the] intervenor and the person struggling with the person being defended, the justification of another defense would rarely, if ever, be available.
“The only conclusion is that ‘initial aggressor’ refers to the initial conflict between the person being defended and the person with whom the third party is struggling” (id. at 201).

This potential confusion over the term “initial aggressor” is precisely the concern that defense counsel referenced when objecting to the charge here. We agree with the conclusion reached in Melendez, that the standard charge is misleading unless a supplemental charge is given on the meaning of “initial aggressor” in the defense-of-another scenario (see id. at 201-202). Thus, the jury should have been charged that, in the context of this case, the initial aggressor rule means — in sum and substance — that if defendant, as

“the intervenor[,] somehow initiated or participated in the initiation of the original struggle or reasonably should have known that [his brother, as] the person being defended],] initiated the original conflict, then justification is not a defense ... If [defendant] had nothing to do with [the] original conflict and had no reason to know who initiated the first conflict, then the defense is available” (id. at 201).

The failure to give such a supplemental instruction here was not harmless because the evidence does not overwhelmingly demonstrate that defendant was involved in the initiation of the physical confrontation, that he was the first to use deadly physical force, or that he had reason to know who initiated the original conflict (cf. People v Petty, 7 NY3d 277, 285-286 [2006]). In short, due to the omission of the supplemental instruction regarding the intervenor who innocently comes to the defense of another who he or she believes is being assaulted, “the instruction did not adequately convey the meaning of [‘initial aggressor’] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met” (Medina, 18 NY3d at 104).

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed, with leave to the People, if they be so advised, to resubmit the charge of manslaughter in the first degree to a new grand jury (see People v Bradley, 88 NY2d 901, 904 [1996]).

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam and Fahey concur.

Order reversed and indictment dismissed, with leave to the People, if they be so advised, to resubmit the charge of manslaughter in the first degree to a new grand jury.

      . Defendant’s brother and girlfriend were charged with manslaughter in the first degree.

      . The People’s argument for giving the initial aggressor charge here mirrored the traditional view of the law. They argued that the charge was required because the evidence showed that defendant was “acting in concert with” his brother and girlfriend, thereby “mak[ing] him accountable as an initial aggressor” — that is, that he stood in the shoes of the two others involved in the fight, even if he was not initially present, because he was acting in concert with them.