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Notes From The Jury During Deliberation: New York’s Highest Court Speaks Out On How They Should Be Handled.


N.Y. Appeals Lawyer Notes From The Jury During Deliberations

People v. Walston

2014 NY Slip Op 04229

New York Court Of Appeals

Decided on: June 12, 2014

Notes From The Jury During Deliberation: New York’s Highest Court Speaks Out On How They Should Be Handled. 

See Also: Waiving Your Rights In Court: Pay Attention To What Your Attorney Says 

Summary: Defendant was indicted on one count of murder and one count of criminal possession of a weapon. During deliberations, the jury sent a note to the judge asking about the law on Manslaughter/Murder.  However, the court did not mention the note’s “intent” language when it informed the lawyers of the jurors’ question.  The jury eventually found him guilty on the manslaughter and weapon possession counts and not guilty on the murder charge.

            The Defendant appealed claiming that the trial court’s handling of the jury note violated the procedure in People v. O’Rama 78 NY2d 270, 1991. The Court of Appeals stated that the Defendant was not required to preserve the O’Rama argument because the trial court did not fulfill its core responsibilities.  When a court fails to fulfill those responsibilities a mode of proceedings error occurs and departures from the O’Rama procedures are not subject tot preservation rules.

Issue: Whether the trial court erred when it paraphrased the note submitted by the jury to the court, but did not mention the note’s “intent” language and whether counsel received meaningful notice as to the note’s content.

Holding: The Court Of Appeals held that the outlined procedure for the court’s handling of jury notes when it receives a substantive written jury communication was in the case, People v O’rama 78 NY2d. The procedure is as follows:  1. The court should mark the note as a court exhibit and read it into the record before the jury is called in. 2. The court must afford counsel an opportunity to suggest responses to the note; inform counsel of the substance of court’s proposed response and.      3. Read the note aloud in open court before the jury so that the individual jurors may correct any inaccuracies.

Facts: Defendant was indicted on one count of murder in the second degree and one count of criminal possession of a weapon in the second degree. During deliberations, the jury sent a note on the Judge’s instructions on Manslaughter/Murder in the second degree.  The court told the attorneys that the jury wanted the Judge’s instructions on manslaughter and murder in the second degree, but did not mention the note’s “intent” language. After the Jury entered the courtroom, the court again paraphrased the note and read back the instructions on Manslaughter/Murder in the second degree. The jury acquitted Defendant of the murder but found him guilty on the manslaughter and weapon possession counts.

            The Defendant appealed claiming that the trial court’s handling of the jury note violated the procedure in People v O’Rama 78 NY2d 270, 1991. The Appellate Division stated the Defendant’s argument was unpreserved and that the claimed error did not constitute a mode of proceedings error. The Court of Appeals held, the Appellate Division erred in concluding that Defendant was required to preserve his O’Rama argument because they did not read the note’s “intent” language.

Legal Analysis: The Court Of Appeals held, The O’Rama procedures are subject to the rules of preservation when the court reads the entire content verbatim in open court prior to responding to the jury. Preservation is required, where it is evident from the record that the trial court fulfilled its core responsibilities.  When a court fails to fulfill those responsibilities, a mode of proceedings error occurs and departures from the O’Rama procedure is not subject to preservation.

There is no evidence on the record that defense counsel was made aware of the existence of the note and no indication that the entire contents of the note were shared with counsel. Rather, the record reflects that the court paraphrased the note for counsel and the jury. The court omitted any reference to the note’s “intent” language. This was not a fair substitute for defense counsel’s own examination of the communication. Defendant’s argument holds true because the court failed to meet its core responsibilities of providing defense counsel with meaningful notice and an opportunity to provide input so that the court could give the jury a meaningful response. Where the record fails to show that defense counsel was apprised of the specific language, preservation is not required.


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