FAHEY, J.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appellant.
Sullivan & Cromwell LLP, New York City (Nicolas Bourtin and Amanda L. Houle of counsel), and Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), for respondent.
OPINION OF THE COURT
FAHEY, J. whether the preservation rule applies when counsel unquestionably had meaningful notice of the jury's substantive inquiries, but the trial court did not respond to those inquiries
before accepting the verdict. We hold that where counsel has meaningful notice of the content of a jury note and of the trial court's response, or lack thereof, to that note, the court's alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review.
I.
Defendant was charged with gang assault in the first degree for his involvement in a group attack on a woman that resulted in her death. Shortly before 6:00 p.m. on the first day of deliberations, the jury stated that it was deadlocked. After the court responded to that note, the jury returned to its deliberations at 6:02 p.m. The court then informed counsel that it would stand in recess until 7:30 p.m. There is no indication on the record that the jury was informed of this recess.
During the recess, the jury sent out three notes. The first note, sent at 6:20 p.m., requested the court's instructions regarding “the importance of a single witness in a case versus multiple witnesses and the instructions about the meaning of reasonable doubt.” The second note, sent at 6:43 p.m., requested to hear the testimony of one of the People's witnesses, who had identified defendant as one of the assailants, regarding the defendant's “leaving of the crime scene,” and also asked for more jury request sheets. The third note, sent at 6:47 p.m., asked for a smoking break.
The jury's requests for more jury note sheets and for a smoking break are not at issue on appeal. Defendant concedes that those requests were ministerial.
When the proceedings reconvened at 7:51 p.m., the court marked these three notes as court exhibits and then read the notes verbatim into the record in the presence of counsel and defendant. The court stated that it planned to reread its earlier legal instructions on the requested topics, and the court and counsel concluded that the People's witness had not provided any testimony about defendant's departure from the crime scene. Before the court recalled the jury into the courtroom to provide those responses, however, the court deputy handed the court another note from the jury.
That note, sent at 7:54 p.m. and marked as a court exhibit, stated that the jury had reached a verdict. The court and counsel had an off-the-record bench discussion. At 8:10 p.m., the court announced on the record in the presence of counsel and defendant that the jury had reached a verdict and that the court planned to bring the jurors into the courtroom to take their verdict. The jurors then entered the courtroom and reported that they had found defendant guilty. The court polled the jury and accepted the verdict without responding to the notes sent during the recess or inquiring whether the jurors still desired a response to those notes. Counsel did not object to this procedure.
On appeal, the Appellate Division reversed the judgment and ordered a new trial (117 A.D.3d 1450, 984 N.Y.S.2d 768 [4th Dept.2014] ). The Appellate Division held that the trial court's failure to provide a meaningful response to the jury's substantive requests before accepting the verdict constituted a mode of proceedings error for which preservation was not required (see id. at 1451, 984 N.Y.S.2d 768 ). The dissenting Justice would have affirmed, concluding that any error did not constitute a mode of proceedings error and, in any event, that there was no error because the jury implicitly rescinded its earlier requests (see id. at 1452, 984 N.Y.S.2d 768 [Lindley, J., dissenting] ).
The dissenting Justice granted the People leave to appeal to this Court (23 N.Y.3d 1027, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ). We now reverse.
II.
In People v. O'Rama, this Court held that CPL 310.30 requires trial courts to provide meaningful notice to counsel of a substantive inquiry from a deliberating jury, and that meaningful notice “means notice of the actual specific content of the jurors' request” (O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). We have subsequently held that when the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required, regardless of whether the court has fulfilled its other responsibility under CPL 310.30 to provide the jury with a meaningful response to its request (see People v. Walston, 23 N.Y.3d 986, 989–990, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] ; People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90 [2009] ; People v. Kisoon, 8 N.Y.3d 129, 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ). Recently, in People v. Silva, 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022 (2014), rearg. denied 24 N.Y.3d 1216, 4 N.Y.S.3d 598, 28 N.E.3d 33 (2015), where the trial court fulfilled neither of its core responsibilities under CPL 310.30, by failing to inform counsel of the existence of a jury note and also failing to respond to the note before accepting the jury's verdict, we held that a mode of proceedings error had occurred (see id. at 299–300, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ). In People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 (2015), we reiterated that a court complies with its responsibility to provide counsel with meaningful notice of a substantive jury inquiry by reading the precise content of the note into the record in the presence of counsel, defendant, and the jury before providing a response, even if the court departs from the O'Rama procedure (see generally O'Rama, 78 N.Y.2d at 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 ) by failing to discuss the note or the court's intended response with counsel before recalling the jury into the courtroom (see Nealon, 26 N.Y.3d at 160–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). That holding was based upon our precedent requiring preservation when the trial court departs from the O'Rama procedure but counsel nevertheless has meaningful notice of the jury note (see People v. Alcide, 21 N.Y.3d 687, 693–694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 [2013] ; People v. Williams, 21 N.Y.3d 932, 934–935, 969 N.Y.S.2d 421, 991 N.E.2d 195 [2013] ; People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791 [2010] ; People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995] ). We repeated our frequent observation that not every departure from the O'Rama procedure or violation of CPL 310.30 constitutes a mode of proceedings error (Nealon, 26 N.Y.3d at 158, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ; see Silva, 24 N.Y.3d at 299, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ; Walston, 23 N.Y.3d at 989, 991 N.Y.S.2d 24, 14 N.E.3d 377 ; Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ).
In Nealon, Silva, and other post-O'Rama decisions considering whether failure to comply with CPL 310.30 constitutes a mode of proceedings error, the Court did not discuss whether a trial court's alleged failure to provide a meaningful response to a substantive inquiry from the jury, standing alone, constitutes a mode of proceedings error for which preservation is not required. Our jurisprudence makes clear that a trial court's failure
The issue is now squarely before us here. The question is not whether the trial court erred. Rather, the issue is whether the alleged error constitutes a mode of proceedings error requiring automatic reversal despite the lack of preservation.
The dissent asserts that we are disregarding the doctrine of stare decisis in holding that this particular alleged error is not a mode of proceedings error (see dissenting op. at 545–546, 36 N.Y.S.3d at 77–78, 55 N.E.3d at 1050–51). We respectfully disagree. As discussed, none of our previous cases in the O'Rama context, including O'Rama itself, considered whether an alleged failure to provide a meaningful response, standing alone, constituted a mode of proceedings error where the court's obligation to provide meaningful notice to counsel was satisfied. To the extent the Court may have suggested otherwise, this language occurred in dicta, inasmuch as in each of those cases, this Court was considering whether the trial court had satisfied its obligation to provide meaningful notice to counsel (see Walston, 23 N.Y.3d at 989, 991 N.Y.S.2d 24, 14 N.E.3d 377 ; Alcide, 21 N.Y.3d at 692, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). Further, in Silva, the trial court failed to fulfill both of its core responsibilities, including the responsibility to provide meaningful notice to counsel (see Silva, 24 N.Y.3d at 300, 998 N.Y.S.2d 154, 22 N.E.3d 1022 ). As the dissent acknowledges, meaningful notice to counsel is not at issue in this appeal (see dissenting op. at 545 n. 1, 36 N.Y.S.3d at 77 n. 1, 55 N.E.3d at 1050 n. 1).
III.
The errors that fit within the category of mode of proceedings errors are not easily defined. We have described such errors as encompassing a “very narrow exception” to the preservation rule (Silva, 24 N.Y.3d at 299, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [internal quotation marks omitted]; see People v. Kelly, 5 N.Y.3d 116, 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179 [2005] ). Mode of proceedings errors are immune not only from the rules governing preservation and waiver but also from harmless error analysis (see e.g. People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610 [1987], rearg. denied 69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363 [1987] ; People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985], rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558 [1986] ; People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ). Such errors require reversal without regard to the prejudice, or lack thereof, to the defendant.
We have therefore been hesitant to expand the mode-of-proceedings-error doctrine. Outside of this “tightly circumscribed class,” we have “repeatedly held that a court's failure to adhere to a statutorily or constitutionally grounded procedural protection does not relieve the defendant
“reserved for the most fundamental flaws” (Becoats, 17 N.Y.3d at 651, 934 N.Y.S.2d 737, 958 N.E.2d 865 ). The error must “go to the essential validity of the process and [be] so fundamental that the entire trial is irreparably tainted” (Kelly, 5 N.Y.3d at 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179 ).
The alleged error here is not of that character. We have acknowledged the critical nature of a substantive request from a deliberating jury, and the importance of a meaningful response by the trial court (see Kisoon, 8 N.Y.3d at 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ; People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987] ; People v. Malloy, 55 N.Y.2d 296, 301–302, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ; People v. Miller, 6 N.Y.2d 152, 156, 188 N.Y.S.2d 534, 160 N.E.2d 74 [1959] ; People v. Gonzalez, 293 N.Y. 259, 263, 56 N.E.2d 574 [1944] ). We have refused, however, to classify under the mode-of-proceedings rubric errors that are arguably more important to the validity of the criminal process, such as the People's failure to present evidence sufficient to support a conviction (see People v. Gray, 86 N.Y.2d 10, 21–22, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), or, if the defendant has an opportunity to object, an alleged error affecting the validity of a guilty plea (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). We have also required preservation for “most ‘errors of constitutional dimension’ ” (People v. Hanley, 20 N.Y.3d 601, 605, 964 N.Y.S.2d 491, 987 N.E.2d 268 [2013], quoting People v. Alvarez, 20 N.Y.3d 75, 81, 955 N.Y.S.2d 846, 979 N.E.2d 1173 [2012] ).
Of pivotal importance here is counsel's knowledge of all the facts required to object to the trial court's procedure or lack of response to the jury's requests. Granted, we have recognized mode of proceedings errors in other contexts where defense counsel was aware of the information required to form an objection, including where counsel affirmatively consented to the trial court's procedure (see e.g. People v. Rivera, 23 N.Y.3d 827, 831, 993 N.Y.S.2d 656, 18 N.E.3d 367 [2014] ; Ahmed, 66 N.Y.2d at 309–310, 496 N.Y.S.2d 984, 487 N.E.2d 894 ). In the O'Rama context, however, lack of notice is the key determinant in classifying a particular procedure as a mode of proceedings error. Notice gives counsel the opportunity to object to any possible error.
When the trial court paraphrases or summarizes a jury note, thereby failing to provide counsel with meaningful notice of the specific content of the note, a mode of proceedings error occurs, “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” (Nealon, 26 N.Y.3d at 157, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). In other words, counsel generally cannot
proceedings error in O'Rama was based upon counsel's inability to “participate effectively or adequately protect the defendant's rights” if counsel lacks notice “of the actual specific content of the jurors' request” (O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). If the court fails to inform counsel of the precise content of a substantive jury note, the court's error “ha[s] the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial” (id. at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ).
By contrast, where counsel has meaningful notice of a substantive jury note that has been read verbatim in open court, the court's failure to discuss the note or its intended response with counsel outside the presence of the jury is not a mode of proceedings error because counsel is not prevented from objecting or from participating meaningfully (see Nealon, 26 N.Y.3d at 160–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ; Alcide, 21 N.Y.3d at 693–694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; Williams, 21 N.Y.3d at 934–935, 969 N.Y.S.2d 421, 991 N.E.2d 195 ; Ramirez, 15 N.Y.3d at 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791 ; Starling, 85 N.Y.2d at 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 ). In that scenario, counsel is aware of the precise content of the note, knows that he or she has not had an opportunity to provide the court with input on its intended response, and is also aware of the court's actual response to the jury, “which counsel is hearing in open court as the court provides its response to the jury” (Nealon, 26 N.Y.3d at 162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). “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” (id. ).
Nealon and its predecessors are not controlling here because in those cases, we considered the trial court's fulfillment of its obligation under CPL 310.30 to provide meaningful notice, not its separate obligation to provide a meaningful response to the jury. Nevertheless, these cases demonstrate that we have generally refused to classify alleged errors as mode of proceedings errors in the jury note context when the record demonstrates that counsel had all the knowledge required to object, and a timely objection would have allowed the court to “easily cure[ ] the claimed error” (Ippolito, 20 N.Y.3d at 625, 964 N.Y.S.2d 499, 987 N.E.2d 276 ). Here, defense counsel had the notice required to enable him to object to the trial court's procedure if he considered that approach to be prejudicial. Counsel knew the precise content of the jury notes received during the recess because the court read those notes verbatim into the record in counsel's presence. Counsel knew how the court planned to respond to those notes because the court informed counsel of its intended response. He knew that the jury had sent out another note stating that it had reached a verdict, and that the court planned to accept the verdict
We have also refused to classify an alleged error as a mode of proceedings error in other contexts where the defendant has the notice and opportunity needed to object (see e.g. People v. King, 27 N.Y.3d 147, 157, 31 N.Y.S.3d 402, 50 N.E.3d 869 [2016] [“If defense counsel had an objection to the procedure employed by the trial court, he should have voiced it so that the court could have corrected any alleged error”]; Conceicao, 26 N.Y.3d at 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [holding that challenge to alleged defect in plea allocution must be preserved by timely objection unless the defendant “faced a practical inability to move to withdraw (the) plea( )”] ).
without responding to the outstanding notes, because the court announced its intention to recall the jury and take the verdict on the record. Counsel was in the courtroom when the jurors were recalled and knew that the trial court had not yet responded to the notes sent during the recess or asked the jurors if they still desired a response before the verdict was announced. In short, “[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” (Alcide, 21 N.Y.3d at 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ). Had counsel simply requested that the court respond to the outstanding notes before taking the verdict, or that the court ask the jurors whether they still desired a response to those notes, the court could easily have corrected the alleged error.
Furthermore, to designate this alleged error as a mode of proceedings error would mandate that the trial court respond to any outstanding notes before taking the verdict even if defense counsel affirmatively requests that the court accept the verdict without responding to those notes. Mode of proceedings errors are not waivable and therefore require reversal even if the defense affirmatively consents to the court's action (see Ahmed, 66 N.Y.2d at 310–311, 496 N.Y.S.2d 984, 487 N.E.2d 894 ). The rule defendant proposes would therefore require a trial court to ignore a defense request, as a matter of strategy, that the court not respond to a jury note before accepting the verdict.
Defendant's rule would also incentivize a distinct tactic that diminishes the preservation rule. Here, the defense may have made a strategic choice not to challenge the trial court's procedure (see King, 27 N.Y.3d at 157, 31 N.Y.S.3d 402, 50 N.E.3d 869 ). Counsel, who was aware that the jury's last note before the recess declared a deadlock, may have decided that the jurors were more likely to acquit defendant if they were not given the chance to deliberate further. In such situations, if the alleged error is deemed to be a mode of proceedings error, “it would be unwise for counsel to object and seek correction of the error” (Nealon, 26 N.Y.3d at 162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). If the verdict is an acquittal, counsel will have secured the desired trial outcome. If the jury convicts the defendant, counsel will have created an appellate issue requiring automatic reversal and a new trial simply by remaining silent. We decline to create a rule that would incentivize such tactics and would diminish the important purposes underlying the preservation rule.
IV.
The disparate treatment of the two types of errors arises from the practical differences between them; one prevents counsel from “participating meaningfully in this critical stage of the trial” (O'Rama, 78 N.Y.2d at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ), and the other does not. “[I]t is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client's behalf” (People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ).
The Appellate Division erred in holding that defendant was not required to preserve for appellate review his contention regarding the court's failure to respond to the jury's notes. Although the court's procedure here may have been error, it was not a mode of proceedings error, and we have no jurisdiction to review it. We therefore cannot address the People's alternative contention that the trial court did not err because the jury implicitly withdrew
its earlier requests by stating that it had reached a verdict.
Defendant's remaining contentions, offered as alternative grounds for affirmance, are without merit.
Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.
RIVERA, J. (dissenting).
In People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), this Court stated, without reservation, that CPL 310.30 imposes a duty on the trial court to meaningfully respond to a substantive juror inquiry. This requirement is no mere technical nicety, but a core responsibility of the trial court which may not be ignored or abdicated (People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ; People v. Torres, 72 N.Y.2d 1007, 1008–1009, 534 N.Y.S.2d 914, 531 N.E.2d 635 [1988] ; People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985] ).
The court's core responsibility additionally encompasses its CPL 310.30 duty to notify counsel of a juror's substantive inquiry, which this Court has explained requires “meaningful notice to counsel of the specific content of the jurors' request—in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response” (People v. Kisoon, 8 N.Y.3d 129, 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ; see also O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 [CPL 310.30 imposes a duty to provide notice to counsel of a jury inquiry and to respond meaningfully] ). This duty is not at issue in this appeal.
A court's unresponsiveness to a jury's substantive request for information is no ordinary procedural error, nor an error of de minimis significance. As previously explained by this Court,
“[t]here are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury's request for clarification of the law or further guidance on the process of deliberations. Indeed, the court's response may well determine whether a verdict will be reached, and what that verdict will be” ( Kisoon, 8 N.Y.3d at 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990, citing 23 A.D.3d 18, 20, 801 N.Y.S.2d 69 [2d Dept.2005] ).
To ensure judicial vigilance of the proper discharge of this duty, “[a] ... court's failure to fulfill the ‘core responsibility’ under O'Rama is treated as a mode of proceedings error” that does not require preservation by defendant (People v. Silva, 24 N.Y.3d 294, 299, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [2014], quoting Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). Quite simply, “[a]lthough we have recognized that some departures from the procedures outlined in O'Rama may be subject to rules of preservation, a failure to fulfill the court's core responsibility is not” (Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 [citations omitted] ).
Moreover, we are not presented with an attempt to expand the mode of proceedings category to include a “new” error, as my colleagues maintain (majority op. at 540–541, 36 N.Y.S.3d at 73–74, 55 N.E.3d at 1046–47). Rather, this case merely requires that we apply our existing precedent to an error previously identified as one not subject to our rules of preservation. Thus, the majority's conclusion that preservation rules apply when a court utterly fails to respond to a juror's substantive inquiry disregards our commitment to stare decisis. I think this recasting of the
Contrary to the majority's view, the rule is clearly set forth in our precedent, and cannot be distinguished as mere dicta.
duty ill-advised. Our adherence to this venerable doctrine “ promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process” (People v. Taylor, 9 N.Y.3d 129, 148, 848 N.Y.S.2d 554, 878 N.E.2d 969 [2007] [internal quotation marks omitted], quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 [1991] ). In order to overturn past precedent there must be a compelling justification to do so, which may be found where such precedent “leads to an unworkable rule, or ... creates more questions than it resolves” (id. at 149, 848 N.Y.S.2d 554, 878 N.E.2d 969 ), or where “a preexisting rule, once thought defensible, no longer serves the ends of justice or withstands ‘the cold light of logic and experience’ ” (Policano v. Herbert, 7 N.Y.3d 588, 604, 825 N.Y.S.2d 678, 859 N.E.2d 484 [2006], quoting Broadnax v. Gonzalez, 2 N.Y.3d 148, 156, 777 N.Y.S.2d 416, 809 N.E.2d 645 [2004] ).
This Court's determination that a trial court's failure to respond constitutes a mode of proceedings error is not unclear, unsettled, unworkable, or rendered outdated. There is likewise no evidence that overturning this established precedent is “consistent with these principles and required by sound policy” (People v. Bing, 76 N.Y.2d 331, 338, 559 N.Y.S.2d 474, 558 N.E.2d 1011 [1990] ). To the contrary, the bright-line rule that a court's failure to provide any response to a jury's substantive note is not subject to preservation maintains clarity, and furthers judicial compliance with the legislative intent of CPL 310.30 that no jury request for instruction on the law and matters pertinent to its consideration be left unanswered. Therefore, stare decisis counsels that we should not overturn our Court's settled precedent.
The majority seeks to pave new ground by recharacterizing a court's unresponsiveness to a jury's substantive note as an error of lesser importance to the criminal process than some others that are subject to our rules of preservation (majority op. at 541, 36 N.Y.S.3d at 74, 55 N.E.3d at 1047). The majority's view is difficult to square with this Court's previous statements that the court's core responsibility is significant because it has the potential to affect the outcome of the trial (O'Rama, 78 N.Y.2d at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; Kisoon, 8 N.Y.3d at 134, 831 N.Y.S.2d 738, 863 N.E.2d 990 ). Moreover, long before O'Rama, Kisoon and Silva, this Court recognized that a court's obligation to respond to jury notes is an indispensable part of the trial process. In describing Code of Criminal Procedure § 427, predecessor to CPL 310.30 and which similarly mandated that, upon request, a court provide a jury with information concerning a point of law, this Court explained that “[t]he Legislature of this State has ... made positive and absolute the requirement that ‘the information required must be given’. The answering of such questions is no mere matter of conventional procedure. It is an integral part of the structure of an adequate trial” (People v. Gonzalez, 293 N.Y. 259, 263, 56 N.E.2d 574 [1944] ). Nor does it matter, as the majority contends, that defense counsel was on notice of the court's failure to respond (majority op. at 541, 36 N.Y.S.3d at 74, 55 N.E.3d at 1047). The majority in People v. Nealon relied on this same argument to impose a preservation requirement in cases where a court fails to comply with the other half of its CPL 310.30 core responsibility, namely the requirement to provide defense counsel with meaningful notice of a jury's substantive request and an opportunity for counsel to participate in
the formulation of a response (26 N.Y.3d 152, 161–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ). The dissent in Nealon effectively explained why a failure to object is irrelevant to a mode of proceedings error.
“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.... 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” ( id. at 166, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [Lippman, Ch. J., dissenting], citing People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976] ).
The same is true in this case. Imposition of a preservation requirement is inherently counter to the underlying premise of a mode of proceedings error, which is the type of nonwaivable error that goes to the heart of the trial process. Whether defense counsel objects to a court's unresponsiveness to a jury's substantive note is of no moment. What matters is the court's failure to comply with its mandated duty and core responsibility.
The majority argues no more persuasively here than in Nealon that its preservation rule is necessary to avoid the situation where a court would be required to respond to a jury note against a defendant's wishes. The majority fundamentally misunderstands the import of CPL 310.30 and our precedent. Defendant's preference or acquiescence is irrelevant because the duty works on the court, not the defendant. Just as the court may not unilaterally ignore its legislatively imposed responsibility, neither can the defendant absolve the court of this duty by agreeing that the court need not respond to a juror's substantive request.
As a final point, the majority here contends that the preservation rule is necessary to avoid incentivizing gamesmanship by defense counsel who would merely fail to challenge a CPL 310.30 error in order to create an appellate issue (majority op. at 543–544, 36 N.Y.S.3d at 75–76, 55 N.E.3d at 1048–49). The argument is no more persuasive in this case than it was in Nealon because it is grounded on speculation about defense counsel's motives, and demonstrates a misunderstanding of the court's duty under CPL 310.30. As the dissent in Nealon argued,
“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” ( Nealon, 26 N.Y.3d at 168–169, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ).
The majority's argument seems particularly misplaced where, as here, the court's failure to respond to a jury's substantive note is due to an intervening indication from the jury that it has reached a verdict. Given the law at the time of the defendant's trial, defense counsel may have relied on decisions from lower courts that treated the jury's announcement of a verdict as the jury's implicit withdrawal of its prior request for information (People v. Albanese, 45 A.D.3d 691, 692, 850 N.Y.S.2d 112 [2d Dept.2007], lv. denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008] ; People v. Fuentes, 246 A.D.2d 474, 475, 668 N.Y.S.2d 184 [1st Dept.1998], lv. denied 91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890 [1998] ).
In defendant's case, while the court was discussing with counsel and the prosecutor
responsibility under CPL 310.30. The court's inaction constituted a mode of proceedings error for which preservation is unnecessary, and, under the circumstances of this case, warrants reversal and a new trial (O'Rama, 78 N.Y.2d at 279, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; Kisoon, 8 N.Y.3d at 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 ; CPL 310.30 ; Silva, 24 N.Y.3d at 300, 300 n. 1, 998 N.Y.S.2d 154, 22 N.E.3d 1022 [a judge's unresponsiveness to a jury request may lead to a new trial] ). Therefore, I dissent and would affirm the Appellate Division.
This case is distinguishable from cases where the court attempts to comply with its duty and the defendant claims the response is inadequate. In those cases, the rule of preservation applies (see People v. Morris, 27 N.Y.3d 1096, 36 N.Y.S.3d 80, 55 N.E.3d 1053 [2016] [decided herewith] ).
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Chief Judge DiFIORE and Judges PIGOTT, ABDUS–SALAAM, STEIN and GARCIA concur; Judge RIVERA dissents and votes to affirm in an opinion.
Order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on the appeal to that Court.
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