Opinion
920 KA 01–01201
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Dennis TIMMONS, Defendant–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: On a prior appeal ( People v. Timmons, 299 A.D.2d 861, 750 N.Y.S.2d 395 [4th Dept. 2002] ), we affirmed the judgment convicting defendant upon a jury verdict of murder in the second degree ( Penal Law § 125.25[2] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., whether County Court erred when it allegedly failed to comply with CPL 310.30 in regard to court exhibit 3, a note from the jury during its deliberations ( People v. Timmons, 142 A.D.3d 1400, 38 N.Y.S.3d 482 [4th Dept. 2016] ), and we vacated our prior order. We now consider the appeal de novo.
CPL 310.30 requires that, in response to a jury request for additional information or instruction, including "with respect to the content or substance of any trial evidence," the trial court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper." The statute "imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury" ( People v. Mack, 27 N.Y.3d 534, 536, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016], rearg. denied 28 N.Y.3d 944, 38 N.Y.S.3d 513, 60 N.E.3d 407 [2016] ; see People v. Parker, 32 N.Y.3d 49, 65, 84 N.Y.S.3d 838, 109 N.E.3d 1138, 2018 N.Y. Slip Op. 04776, *1, 2018 WL 3147690 [2018] ; People v. O'Rama, 78 N.Y.2d 270, 276–277, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ). "[M]eaningful notice ‘means notice of the actual specific content of the jurors' request’ " ( Mack, 27 N.Y.3d at 538, 36 N.Y.S.3d 68, 55 N.E.3d 1041, quoting O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). "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’ " ( id. at 541, 36 N.Y.S.3d 68, 55 N.E.3d 1041, quoting People v. Nealon, 26 N.Y.3d 152, 157, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ; see People v. Morrison, 32 N.Y.3d 951, 952–53, 84 N.Y.S.3d 819, 109 N.E.3d 1119, 2018 N.Y. Slip Op. 04777, *1–2, 2018 WL 3147613 [2018] ). "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’ " ( Nealon, 26 N.Y.3d at 157, 20 N.Y.S.3d 315, 41 N.E.3d 1130, quoting People v. Kisoon, 8 N.Y.3d 129, 135, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ).
Defendant contends that the court committed a mode of proceedings error by failing to provide counsel with meaningful notice of the specific content of the jury note requesting readbacks of the testimony of five witnesses, some of which the jury requested be provided in a particular order. Here, the trial transcript indicates that the court informed defense counsel of the existence of the note and most of its contents, but "there is no indication that the entire contents of the note were shared with counsel" ( People v. Walston, 23 N.Y.3d 986, 990, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] ; see Morrison, 32 N.Y.3d at 953, 84 N.Y.S.3d 819, 109 N.E.3d 1119, 2018 N.Y. Slip Op., *1 ). Rather, the transcript reflects that the court initially paraphrased the note outside the presence of the jury and then read part of the note verbatim in the jury's presence, but in each instance the court entirely omitted any reference to the jury's request for the testimony of the medical examiner and for that witness's testimony to be read first. The court's recitation of the jury note, as transcribed, was thus "hardly ‘a fair substitute for defense counsel's own perusal of the communication’ " ( Walston, 23 N.Y.3d at 990, 991 N.Y.S.2d 24, 14 N.E.3d 377, quoting O'Rama, 78 N.Y.2d at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 ).
Nonetheless, the People contend that no mode of proceedings error actually occurred, and thus that defendant was required to preserve his contention, because the court reporter inadvertently omitted from the transcript the court's on-the-record, verbatim recitation of the note in open court prior to responding to the jury. In support of that contention, the People rely upon the affidavit of the court reporter that was submitted in opposition to defendant's motion for a writ of error coram nobis. Defendant asserts that we cannot consider the court reporter's affidavit because it is not part of the stipulated record on de novo appeal and is not a document that constituted a part of the underlying prosecution (see 22 NYCRR former 1000.4[a][1][i], [iii] ). Indeed, the People stipulated to the record without seeking to amend the transcript (see CPLR 5525[c][1] ; see also 22 NYCRR former 1000.4[a][1][ii] ), rely upon an affidavit that does not constitute a part of the underlying prosecution (see 22 NYCRR former 1000.4[a][1][iii] ), and have not submitted a supplemental transcript certified by the court reporter that would fall within the parties' stipulation to submit the trial transcripts to this Court (cf. People v. Davis, 106 A.D.3d 1510, 1511, 964 N.Y.S.2d 856 [4th Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ). It is well established, however, that "[p]arties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer" ( People v. Bethune, 29 N.Y.3d 539, 541, 59 N.Y.S.3d 301, 81 N.E.3d 835 [2017] ; see People v. Marzug, 280 A.D.2d 974, 974, 721 N.Y.S.2d 220 [4th Dept. 2001], lv denied 96 N.Y.2d 904, 730 N.Y.S.2d 801, 756 N.E.2d 89 [2001] ; People v. Buccufurri, 154 App.Div. 827, 828, 139 N.Y.S. 305 [2d Dept. 1913] ). Thus, under the circumstances of this case, we take judicial notice of our own records, i.e., the court reporter's affidavit submitted in opposition to defendant's motion for a writ of error coram nobis (see People v. Comfort, 278 A.D.2d 872, 873, 718 N.Y.S.2d 751 [4th Dept. 2000] ; People v. Coppersmith, 39 A.D.2d 947, 947, 332 N.Y.S.2d 902 [2d Dept. 1972] )
In her affidavit, the court reporter averred that, although the transcript indicates that the court stated that the jury requested readbacks of the testimony of only four witnesses, the transcript inadvertently omits from the court's recitation of the note the jury's request for a readback of the testimony of a fifth witness—the medical examiner. The court reporter's affidavit thus indicates that a stenographic error may have resulted in a transcript that does not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury. We conclude that the alleged error in the transcript of the court's on-the-record reading of the note should be subject to a reconstruction hearing because "[t]he trial judge is the ‘final arbiter of the record’ certified to the appellate courts" ( Bethune, 29 N.Y.3d at 541, 59 N.Y.S.3d 301, 81 N.E.3d 835, quoting People v. Alomar, 93 N.Y.2d 239, 247, 689 N.Y.S.2d 680, 711 N.E.2d 958 [1999] ; see Judiciary Law § 7–a ; Bethune, 29 N.Y.3d at 544, 59 N.Y.S.3d 301, 81 N.E.3d 835 [Fahey, J., concurring]; cf. Parker, 32 N.Y.3d at 66–68, 84 N.Y.S.3d 838, 109 N.E.3d 1138, 2018 N.Y. Slip Op., *3–5 ; Morrison, 32 N.Y.3d at 952–53, 84 N.Y.S.3d 819, 109 N.E.3d 1119, 2018 N.Y. Slip Op., *1–2 ). We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose.