SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1258 

KA 09-00310 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

WILLIAM MORRISON, DEFENDANT-APPELLANT. 

 

MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (TIM WU OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Michael L.

Dwyer, J.), rendered April 18, 2007. The judgment convicted

defendant, upon a jury verdict, of rape in the first degree, sexual

abuse in the first degree and endangering the welfare of a vulnerable

elderly person in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

reversed on the law and a new trial is granted on counts one through

three of the indictment. 

Memorandum: On a prior appeal, we affirmed the judgment

convicting defendant upon a jury verdict of rape in the first degree

(Penal Law § 130.35 [1]), sexual abuse in the first degree (§ 130.65

[1]), and endangering the welfare of a vulnerable elderly person in

the second degree (former § 260.32 [4]) (People v Morrison, 90 AD3d

1554, lv denied 19 NY3d 1028, reconsideration denied 20 NY3d 934). 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 that may have merit, i.e., whether County Court erred in failing

to comply with CPL 310.30 in its handling of jury notes (People v

Morrison, 128 AD3d 1424), and we vacated our prior order. We now

consider the appeal de novo.

We agree with defendant that the court violated a core

requirement of CPL 310.30 in failing to advise counsel on the record

of the contents of a substantive jury note, and thereby committed

reversible error (see People v Mack, 27 NY3d 534, 538; People v Silva,

24 NY3d 294, 299-300, rearg denied 24 NY3d 1216; People v O’Rama, 78

NY2d 270, 277-278). The record establishes that a jury note marked as

court exhibit 8 stated that “[w]e have made decision on the Third

Count we are having hard time with 1 and 2 just giving you are [sic]

status.” Soon thereafter, a jury note marked as court exhibit 9

stated that “[w]e have arrived on decision on 2 and 3, but we have a
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lot of work to do on #1. I don[’]t see it being quick. Not sure what

to do. We ars [sic] starting to make way.” 

It is well settled 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” (Mack, 27

NY3d at 538). Here, the record establishes that the court brought the

jury into the courtroom but did not read court exhibits 8 and 9 into

the record, contrary to the procedure it employed with the previous

notes sent by the jury. The court then instructed the jury to

continue working to try to reach a unanimous verdict. We agree with

the People that CPL 310.30 did not apply to court exhibit 8 inasmuch

as the jury was not requesting “further information or instruction”

(People v Collins, 99 NY2d 14, 17), but we agree with defendant that

court exhibit 9 was a substantive jury note requiring notice to

defense counsel (see People v Kisoon, 8 NY3d 129, 135; People v

Victor, 139 AD3d 1102, 1108-1109, lv denied 28 NY3d 1076). Thus,

defense counsel was “deprived . . . of the opportunity to accurately

analyze the jury’s deliberations and frame intelligent suggestions for

the court’s response” (Kisoon, 8 NY3d at 135). 

We reject the People’s contention, and disagree with our

dissenting colleague, that the jury’s inquiry was merely ministerial

(cf. Mack, 27 NY3d at 537 n 1). Our dissenting colleague concludes

that the jury’s statement, “[n]ot sure what to do,” was a ministerial

inquiry concerning the logistics of the jury’s deliberations, i.e.,

the jury was asking whether it should continue deliberating that

evening considering the late hour. We agree that the note could be

interpreted that way, but we conclude that it also could be

interpreted as it was interpreted by the court, i.e., the jury was

having difficulty reaching a unanimous verdict and was making a

substantive inquiry for guidance concerning further deliberations. In

response to the note, the court issued an Allen-type charge. Quite

simply, even if we consider all the surrounding circumstances, the

jury note was ambiguous, and we must resolve that ambiguity in

defendant’s favor (see People v Johnson, 64 NY2d 617, 618 n 2; People

v O’Donnell, 2 AD2d 971, 971; see also People v Thompson, 26 NY3d 678,

687-688).

We also reject the People’s contention that “special

circumstances,” i.e., the presence of media in the courtroom,

justified the departure from the O’Rama procedures (O’Rama, 78 NY2d at

278). There are no special circumstances that would excuse a court

from failing to give notice to defense counsel of the contents of a

substantive jury note (see generally Mack, 27 NY3d at 538). Finally,

contrary to the People’s contention, “[w]here a trial transcript does

not show compliance with O’Rama’s procedure as required by law, we

cannot assume that the omission was remedied at an off-the-record

conference that the transcript does not refer to” (People v Walston,

23 NY3d 986, 990; see People v Owens, 144 AD3d 1510, 1510-1511). The

presumption of regularity cannot be applied when the alleged error is

that the court failed to apprise defense counsel of the contents of a

jury note, and the record “must indicate compliance with adequate
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procedures under O’Rama” (Silva, 24 NY3d at 300). We therefore

reverse the judgment and grant a new trial on counts one through three

of the indictment. In light of our determination, there is no need to

address defendant’s remaining contentions.

All concur except PERADOTTO, J., who dissents and votes to affirm

in accordance with the following memorandum: I respectfully dissent. 

In my view, the O’Rama procedure was not implicated because the jury

note marked as court exhibit 9 was ministerial in nature, and

defendant was therefore required to preserve his challenge to County

Court’s handling of that jury note. There is no basis to exercise

this Court’s discretion in the interest of justice to address

defendant’s unpreserved contention. I would thus affirm the judgment

of conviction.

Criminal Procedure Law § 310.30 provides that a deliberating jury

“may request the court for 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 a request, the 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 thus “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 NY3d

534, 536, rearg denied 28 NY3d 944; see People v Nealon, 26 NY3d 152,

155-156; People v O’Rama, 78 NY2d 270, 276-277). The statute,

however, “does not require notice to defendant in every instance of

communication from the jury to the court” (People v Lykes, 81 NY2d

767, 769). Rather, “[t]he O’Rama procedure is implicated whenever the

court receives ‘a substantive written jury communication,’ ” but that

procedure “is not implicated when the jury’s request is ministerial in

nature and therefore requires only a ministerial response” (Nealon, 26

NY3d at 161; see People v Mays, 20 NY3d 969, 971; People v Ochoa, 14

NY3d 180, 188). 

An inquiry is substantive, and thus triggers the court’s

obligations under O’Rama, “when a deliberating jury requests further

instruction or clarification on the law, trial evidence, or any other

matter relevant to its consideration of the case” (People v Rivera, 23

NY3d 827, 831; see People v Collins, 99 NY2d 14, 17). An announcement

by the jury that it is deadlocked—which is effectively a request that

it be relieved of the duty to resolve the trial issues, thereby

requiring further instruction by the court—is also a substantive

inquiry (see e.g. People v Kisoon, 8 NY3d 129, 132; O’Rama, 78 NY2d at

275, 275 n 2; People v Lockley, 84 AD3d 836, 838, lv denied 17 NY3d

807; see generally CPL 310.60).

In contrast, an inquiry is ministerial if it is “wholly unrelated

to the substantive legal or factual issues of the trial” (People v

Harris, 76 NY2d 810, 812; see People v Hameed, 88 NY2d 232, 241, cert
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denied 519 US 1065; People v Gruyair, 75 AD3d 401, 402-403, lv denied

15 NY3d 852). Inquiries concerning “ ‘the logistics of the

deliberative process,’ ” such as questions about scheduling and

requests for breaks (People v Bonaparte, 78 NY2d 26, 30; see Mack, 27

NY3d at 537 n 1; see generally People v Brito, 135 AD3d 627, 627, lv

denied 27 NY3d 1066; People v Backus, 184 AD2d 231, 231, lv denied 80

NY2d 926), are “ ‘not the kind of substantive [requests] that

implicate[] O’Rama’ ” (People v Wallace, 27 NY3d 1037, 1039, quoting

Mays, 20 NY3d at 971; see Gruyair, 75 AD3d at 403; People v McDowell,

15 AD3d 840, 840, lv denied 5 NY3d 791).

There are two jury notes at issue in this case. The note marked

as court exhibit 8 stated: “We have made decision on the Third Count

we are having hard time with 1 and 2 just giving you are [sic]

status.” The jury note marked court exhibit 9 stated: “We have

arrived on decision on 2 and 3, but we have a lot of work to do on #1. 

I don[’]t see it being quick. Not sure what to do. We ars [sic]

starting to make way.” Preliminarily, I agree with the People and the

majority that court exhibit 8 did not constitute an inquiry at all

inasmuch as it was merely a status update, i.e., it did not request

any “further information or instruction” (Collins, 99 NY2d at 17). 

Contrary to the majority’s determination, however, even assuming,

arguendo, that court exhibit 9 constituted an inquiry, I conclude that

it was ministerial in nature because, viewing the text of the note in

the context of all the surrounding circumstances (see People v Taylor,

26 NY3d 217, 225-226; People v Mitchell, 46 AD3d 480, 480, lv denied

10 NY3d 842), it unambiguously concerned only the logistics of the

deliberative process.

Here, at 4:00 p.m. on the first day of deliberations, i.e., the

day prior to date of the notes at issue on appeal, the court informed

the jury that the building usually closed at 4:30 p.m. and provided

the jury with the choice of deliberating until 4:45 p.m. or breaking

for the night and continuing the next morning. The court then asked

the jury to send out a note at 4:30 p.m. advising whether it would

reach a verdict in the remaining time or whether it wished to break

for the night. The jury subsequently sent out a note indicating that

it would not be able to reach a verdict that evening and requesting to

come back in the morning. The court read that note into the record

and instructed the jury that it would break until the following

morning. The jury continued deliberations the following day beginning

at 9:00 a.m., and the jury sent out various notes throughout the day.

The jury notes at issue here were received and addressed by the

court at 4:52 p.m. Court exhibit 8 gave a status update, and court

exhibit 9 followed up by indicating that the jury had reached a

decision on two of the three counts and was starting to make way with

respect to the top count, i.e., rape in the first degree (Penal Law 

§ 130.35 [1]), although it did not expect resolution of that count to

be quick. In the presence of defendant, defense counsel and the

prosecutor, the court responded by declining to read the notes on the

record as it had done with previous notes sent by the jury. Instead,

after noting its appreciation for the hard work that the jury had put
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in throughout the proceedings, the court provided an Allen-type

instruction expressing hope that the jury would eventually reach a

unanimous verdict. The court continued by mentioning that the jury

had been deliberating all day, and that the court would adjourn until

the morning if the jurors thought that breaking for the evening would

be helpful as opposed to continuing for another hour. The court

further discussed that the weather report was calling for poor

conditions overnight, and requested that the jurors discuss their

options. The jury promptly responded with a note marked as court

exhibit 10 indicating that it did not believe that it would be able to

come to a unanimous decision in the next hour and preferred to come

back in the morning at 10:00 a.m. when the weather would be clear.

Contrary to the majority’s conclusion, considering the full text

of court exhibit 9 and all of the surrounding circumstances, “the only

reasonable interpretation” (Mitchell, 46 AD3d at 480) of the jury’s

statement that it was “[n]ot sure what to do” is that the inquiry

concerned the logistics of the jury’s deliberations. The clause was

immediately preceded by a reference to the amount of work to be done

on the top count and immediately followed by the jury’s indication

that it was beginning to make progress. Consistent with the late hour

and the court’s practice of giving the jury a choice of whether to

break for the evening or continue deliberating based on the status of

the jury’s deliberations, the record establishes that the jury raised

a question of scheduling when it indicated that it was “[n]ot sure

what to do.” The jury was asking whether to continue deliberating or

break for the evening given that it had not yet come to a decision on

the top count and anticipated needing additional time to reach a

verdict even though it was starting to make progress. The jury note

did not request the court’s assistance on the ground that the jury was

hopelessly deadlocked, and thus the majority’s reliance on Kisoon is

misplaced (cf. 8 NY3d at 132; O’Rama, 78 NY2d at 275, 275 n 2). Nor

did the jury otherwise indicate that it was at an impasse or a

standstill (cf. People v Cook, 85 NY2d 928, 930; People v Dame, 144

AD3d 1625, 1625). There is thus no basis in the record to support the

majority’s interpretation that “the jury was having difficulty

reaching a unanimous verdict and was making a substantive inquiry for

guidance concerning further deliberations.” To the contrary, the note

conveyed that the jury was making progress, but had much work to do

with regard to the top count and, therefore, felt it necessary to

express its uncertainty whether it should continue deliberating or

break for the evening. The inquiry was ministerial inasmuch as it

concerned “ ‘the logistics of the deliberative process’ ” (Bonaparte,

78 NY2d at 30), and was “ ‘wholly unrelated to the [remaining]

substantive legal [and] factual issue[] of the trial,’ ” (Hameed, 88

NY2d at 241), i.e., whether defendant had engaged in sexual

intercourse with the victim by forcible compulsion (see Penal Law 

§ 130.35 [1]). The jury’s inquiry “bore no substantial relationship

to . . . defendant[’s] opportunity to defend against the charges”

(Hameed, 88 NY2d at 241).

The majority’s reliance on People v Victor (139 AD3d 1102, 1108-

1109, lv denied 28 NY3d 1076) is misplaced. In that case, the jury

sent out a note stating that “ ‘we have reach[ed] agreement on 9 of
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the 10 charges # 8G 4NG’ ” (id. at 1108). Shortly thereafter, the

jury sent another note stating, “Ready” (id.). When discussing the

first jury note with counsel, however, the court indicated only that

the jury had reached agreement on nine out of the ten charges and

excluded mention of the clause at the end of the note (see id.). The

Third Department concluded that the court committed a mode of

proceedings error on the ground that the court failed to meet its

“affirmative obligation to read [the first jury note] verbatim so that

the parties had the opportunity to accurately analyze the jury’s

question and frame intelligent suggestions for the court’s response”

(id. at 1109). In support of its implicit determination that the note

was substantive and triggered the court’s O’Rama obligations, the

Third Department cited People v Silva (24 NY3d 294, 299, rearg denied

24 NY3d 1216) and Kisoon (8 NY3d at 134), which involve jury notes

indicating deadlock, requesting instruction on the law, and making

other substantive inquiries. Significantly, as counsel discussed in

Victor, the jury note in that case raised the prospect that the jury

was attempting to render a partial verdict upon being deadlocked on

the last count (see 139 AD3d at 1108-1109; see generally CPL

310.70)—apparently, in my view, by a vote of eight guilty (G) and four

not guilty (NG). As discussed in detail above, that is simply not

true in the case before us. Although the jury here provided a further

status update to the court on its progress with respect to two of the

counts, it also affirmatively indicated that it was moving forward

with its deliberations on the top count. Thus, both the text of court

exhibit 9 and the particular surrounding circumstances here are

distinguishable from those in Victor and, contrary to the majority, I

am not convinced that the implicit determination of a substantive

inquiry in that case serves as persuasive authority to be applied to

the facts of this case.

To the extent that the court provided a more robust response to

the jury note than was required, I agree with the People that the

court could not transform a ministerial inquiry regarding the

logistics of a productive, continuing deliberation into a substantive

deadlock announcement by merely exercising caution and reiterating the

jury’s deliberative obligations. Nor is the court’s prudence

indicative of an ambiguity. The text and surrounding circumstances

establish that the inquiry itself was ministerial and thus the court’s

failure to follow the O’Rama procedure at that point, as it had done

with the jury’s prior substantive notes, was not a mode of proceedings

error.

Finally, I have examined defendant’s remaining contentions and

conclude that none requires modification or reversal of the judgment. 

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court