Defendant James Alcide was indicted for second-degree murder and second- and third-degree weapon possession in connection with a shooting on February 20, 2005. The victim entered a small grocery store, and, shortly thereafter, a bystander on the same side of the street heard the shot and saw a man firing. The bystander identified Defendant as the shooter in a lineup, as well as in court. The jury sent notes to the judge requesting read-backs of testimony of both the bystander and the first police officer to arrive on the scene. The judge stated in front of Defendant, counsel, and the jury that he would read the questions with the court reporter reading the answers to expedite the process. Neither party objected, and the jury convicted Defendant of intentional murder and the top weapon possession count.
Defendant appealed, arguing that the trial judge’s actions constituted mode-of-proceedings errors by participating in the read-backs and by veering from the protocol pertaining to jury notes laid out in People v. O’Rama, 78 N.Y.2d 270 (1981). The appellate division affirmed, holding that O’Rama was not implicated and that the unpreserved claims did not constitute mode-of-proceedings errors. The Court affirmed the appellate division’s decision, noting that a trial court fulfills its duty to notify counsel and to respond by following the O’Rama protocol. The O’Rama protocol requires “submission of a jury inquiry to the trial judge in writing, after which the judge marks the written inquiry as a court exhibit; reads it into the record in counsel’s presence and before the jury is recalled to the courtroom; allows counsel an opportunity to suggest responses to the inquiry; informs counsel of his intended instruction; and, once the jury returns, reads the inquiry aloud before responding.” 2013 N.Y. Slip Op. 06598 at 6. (See O’Rama, 78 N.Y.2d at 277-278). However, the Court cautioned that the O’Rama protocol should not be applied rigidly. Rather, the main concern was that the judge’s handling of a jury inquiry must provide meaningful notice to counsel and a meaningful response to the jury.
The Court went further to find that the controlling case in this circumstance was People v. Starling, which stated that “counsel’s silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable.” 85 N.Y.2d 509, 516 (1995). The Court explained that defense counsel had the opportunity to ask the judge to alter his course of action but did not do so.
Defendant further argued that the judge erred by erroneously conveying to the jury that the court aligned itself to a party in the case through his participation in the read-back. While the Court warned that a trial judge should not participate in a read-back, it neither was prohibited nor did it give rise to an error of the mode of proceedings. Lastly, the Court stated that nothing in the record suggested that the trail judge was vested in the read-back, but only participated in order to speed up the trial, to which Defendant had the opportunity to object.
2013 WL 5566450, 2013 N.Y. Slip Op. 06598