Tagged: reversal

NYCA Addresses the Mode of Proceedings Error Doctrine

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

Related Readings:

New NYCA Decision on Attorney Disqualification

The New York Court of Appeals has unanimously reversed an appellate division decision and upheld the decision of a trial judge to relieve a defendant’s assigned counsel despite the defendant’s objections to having new counsel. The case arose when the defendant’s assigned counsel from New York County Defender Services (NYCDS) learned that another lawyer in his office was representing a man who had fled from the scene when his client was arrested for possession of a weapon found nearby. The attorney discovered the potential conflict when he sought to track down the other man to call him as a witness in the hope of casting doubt on who had possessed the gun. The attorney’s  supervisors at the NYCDS had prohibited him from looking for, calling the other man as a witness, or  cross-examining him if the prosecution called him to testify. The trial judge removed the attorney despite the client’s desire to keep him as counsel. The defendant was represented by someone else and convicted. He was sentenced to 20 years to life as a persistent violent felony offender.

The appellate division held that removal had been an abuse of discretion, but the appellate division was reversed. The Court of Appeals held that removal is appropriate where institutional defense organizations represent more than one defendant in the same criminal matter, particularly here, where the lawyer’s supervisors prohibited him from calling a prior client as a witness. It also held that the client had not effectively waived the conflict because, while he insisted on his right to retain his attorney of choice, he also continued to insist on calling the other defendant as a witness.

Related Readings:

First Department Reverses Murder Conviction on Erroneous Jury Instruction

In People v. Minor, the Appellate Division, First Department unanimously reversed a second degree murder conviction on the ground that the judge erred in her instruction on assisted suicide defense to murder.

In Minor, the defendant had been charged with murdering  Jeffrey Locker,  a motivational speaker who was deeply in debt  and who was found dead in his car from multiple stab wounds.  The defendant claimed Locker had enlisted his aid to make his suicide look like a murder so his family could recover his recently purchased $12 million of life insurance.  The defendant allegedly held a knife on the steering wheel as Locker leaned forward into it.  When the defendant left the car, Locker was still alive.  Based on expert testimony that the wounds were inconsistent with the defendant’s story, the prosecution claimed that the defendant had murdered the victim.

In her instructions, the trial judge attempted to explain the affirmative defense of assisted suicide by stating that while murder was an “active,” assisted suicide was not.  When the jury asked for additional clarification the judge, over objection, responded with further instructions that failed to clarify the distinction.  The First Department reversed the conviction.  It held that neither the term “active” nor its opposite, “passive” are present in the statute and that the instructions were confusing and misleading.

Read People v. Minor, No. 10291, 2013 N.Y. Slip Op. 6444 (App. Div. 1st Dep’t 2013).