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Notes From The Jury: Contents Of The Note Determines Judge’s Obligation To Apprise Defense Counsel


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People v. Ochoa

14 NY3d 180

New York Court of Appeals

Decided on: February 16, 2010

Notes From The Jury: Determining Judge’s Obligation To Apprise Defense Counsel.  

 Summary: Mark Ochoa, Michael Figueroa, and Fernando Cruz went to Madline Ruballo’s apartment with their video game consoles. When Cruz decided to leave with his video game, Figueroa pulled out a box cutter and demanded the console while Ochoa pulled Cruz’s jacket over his head. Defendants were charged with “acting in concert” robbery and criminal possession of stolen property.

On cross-examination, Defense counsel impeached Cruz with his grand jury testimony and confronted Ruballo with statements made to the Police. On re-direct examination, the Prosecutor sought to rehabilitate Cruz with prior consistent statements, but defense counsel objected. The trial court overruled the objection and allowed the Prosecutor rehabilitate the witnesses.

Prior to the verdict, the Judge received a note from the foreperson stating that he was uncomfortable reading the verdict. The judge met with the foreperson and relieved him of his duty to read the verdict aloud in open court. On the record, the Judge announced that the court has received two notes: one, that they reached a verdict, and two, a personal note from the foreperson saying that he doesn’t feel comfortable reading the verdict. Defense counsel was never informed of the note the Judge received and neither counsel made an objection. The Judge’s handling of the notes he received and the Prosecutor’s redirect examination of those witnesses were issues raised on appeal.

See Also: Due Process is Required When  Revoking A Conditional Sentence: A Hearing Is  Not Required But There Must Be An Inquiry Sufficient Depth To Satisfy  Due Process

Issue: Whether the Prosecutor’s redirect examination of a witness constitutes improper bolstering and whether the trial Judge’s failure to disclose the foreperson’s notes deprived defense counsel the opportunity to be heard.

Holding: The Court of Appeals held that the Prosecutor’s redirect examination did not constitute impermissible bolstering. The Prosecutor was seeking to fill in the gaps that defense counsel left out during cross-examination after counsel implied that the witnesses’ statements to the Police were a lie. Where only a part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying the statement.

The Court also held that the Judge acted within its discretion by seeking clarification of the juror’s notes meaning before notifying defense counsel. The substance of the note related only to the foreperson’s concern on how to read the verdict, and thus, was nothing more than an inquiry of ministerial nature that was unrelated to the matter of the verdict.

Facts: Defendants Mark Ochoa, Michael Figueroa and Fernando Cruz went to Madline Ruballo’s apartment with their video game console. When Cruz decided to leave with his video game, Figueroa pulled out a box cutter and demanded the console while Ochoa pulled Cruz’s jacket over his head. Defendants were charged with “acting in concert” robbery and criminal possession of stolen property. On cross-examination, Defense counsel impeached Cruz with his grand jury testimony and confronted Ruballo with statements made to the Police. On re-direct examination, the Prosecutor sought to question Cruz about what he was confused about during his grand jury testimony, but counsel for Ochoa objected, stating that the Prosecutor could not rehabilitate him with a prior consistent statement. The trial court overruled the objection and allowed the Prosecutor rehabilitate the witnesses.

      Prior to the verdict, the Judge received a note from the foreperson stating that he was uncomfortable reading the verdict. The judge met with the foreperson and relieved him of his duty to read the verdict aloud in open court. On the record, the Judge announced that the court has received two notes: one, that they reached a verdict, and two, a personal note from the foreperson saying that he doesn’t feel comfortable reading the verdict. Defense counsel was never informed of the note the Judge received and neither of the counselors made an objection. The Judge’s handling of the notes he received and the Prosecutor’s redirect examination of those witnesses were issues raised on appeal.

In Ochoa, The Appellate Division affirmed both Defendants’ arguments that counsel’s failure to object or seek other relief from the court relative to the communication with the foreperson constituted a waiver of that argument. In Figueroa, the Appellate Division addressed the juror note issue and held that the foreperson’s action was ministerial and neither Defendant nor Defense counsel had a right to be present. The counselors were required to request a further inquiry or otherwise preserve a claim of error. The Court of Appeals affirmed The Appellate Divisions order on both Appeals.

Legal Analysis: The Court of Appeals held that the questions raised on redirect examination by the Prosecution were addressed matters raised by defense counsel on cross-examination, and did no more than to explain, clarify, and fully elicit a question only partially examined by the defense. People v. Regina, 19 NY 2D65, 78 1966. The trial testimony of the two individuals who were present at the time of the crimes and who testified against the Defendants was not consistent. Defense Counsel implied that the witnesses’ entire statements to Police were a lie. Where only a part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying that statement. People v. Torre 42 NY2d 1036, 1037 1977.

        On re-direct examination, the Prosecutor sought to question Cruz about what he was “confused” about during his grand jury testimony. This did not constitute impermissible bolstering. The Court of Appeals held that the Prosecutor’s redirect examination of Ruballo was also proper. The Prosecutor sought to clarify what was correct and incorrect about the statements after Defense counsel stated that Ruballo’s entire statement to police was a lie. The trial court did not abuse its discretion in allowing the Prosecutors to clarify on which parts of the statements were true, and which were not.

The Defendants next argue that the trial courts failed to apprise defense counsel of the contents of the note prior to speaking with the foreperson. The Defendants contend that it deprived the defense an opportunity to be heard and to respond to the note. The Defendants also argue that since they were not present during the courts communication with the foreperson, the court violated CPL 260.20 and 310.30.

The Juror’s note Provision, CPL §310.30, provides: “At any time during its deliberation, the jury may request from the court further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case. Upon such request, the court must direct 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 Juror’s note provision has two requirements. First, it ensures counsel’s presence when the court responds to the jury’s request for instructions or other information. Second, it ensures that counsel has the opportunity to be heard before the response is given. People v. O’Rama, 78 NY 2d. The trial court’s failure to disclose the contents of a juror note, which effectively prevents defense counsel from meaningful participation in the proceedings, will constitute a significant departure from the mode of proceedings prescribed by law.

In Ochoa, The Appellate Division held that counsel’s failure to object or seek other relief from the court relative to the communication with the foreperson constituted a waiver of that argument. In Figueroa, the Appellate Division addressed the juror note issue and held that the foreperson’s action was ministerial and therefore neither Defendant nor Defense counsel had a right to be present. Counsels were required to request a further inquiry or otherwise preserve a claim of error.

In this case, the foreperson’s note was ambiguous. It may have been more prudent for the Judge to follow the procedures specified in O’Rama before responding to it. Nonetheless, the Court of Appeals concluded that the Judge acted within is discretion by seeking clarification of the note’s meaning before notifying defense counsel. The substance of the note related only to the foreperson’s concern on how to read the verdict, and was nothing more that an inquiry of a ministerial nature unrelated to the substance of the verdict. As a result, the Court held that the Judge was not required to notify defense counsel nor provide them with an opportunity to respond. Accordingly, the Court of Appeals affirmed the Appellate Division on both appeals.


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