<strong><em>People v. Mack, No. 74, 27 N.Y.3d 15 (2016)</em></strong>

When the trial court provides meaningful notice to counsel of jury inquiries and its intended responses, any claim of error regarding the court’s failure to respond to a jury note before taking a verdict must be preserved by objection.

<strong>Summary</strong>

In *People v. Mack*, the New York Court of Appeals addressed whether a trial court’s failure to respond to substantive jury notes before accepting a verdict constituted a mode of proceedings error, thus not requiring preservation by objection. The court held that where defense counsel had meaningful notice of the jury’s inquiries and the court’s intended actions, the failure to object to the procedure resulted in a forfeiture of the right to appeal that issue. The Court distinguished this situation from one where the court fails to provide meaningful notice of a jury inquiry, which constitutes a mode of proceedings error. The Court reversed the Appellate Division’s decision, emphasizing the importance of the preservation rule to encourage timely error correction and prevent strategic manipulation of the appeals process.

<strong>Facts</strong>

The defendant was charged with gang assault. During deliberations, the jury sent multiple notes requesting instructions on reasonable doubt and witness testimony, and also requested a smoking break. The court read the notes aloud in the presence of counsel and defendant, stating its plan to re-read instructions. However, before providing the responses, the jury sent a note that they had reached a verdict. The court, after an off-the-record discussion, brought the jury back, took the verdict, and polled the jury without responding to the earlier notes or inquiring whether the jury still desired a response. Defense counsel did not object. The Appellate Division reversed, finding a mode of proceedings error. The Court of Appeals reversed the Appellate Division.

<strong>Procedural History</strong>

The trial court found the defendant guilty. The Appellate Division reversed the conviction, holding that the trial court’s failure to respond to the jury’s substantive requests before accepting the verdict constituted a mode of proceedings error. The dissenting justice would have affirmed. The New York Court of Appeals granted leave to appeal.

<strong>Issue(s)</strong>

1. Whether the trial court’s failure to provide a meaningful response to substantive jury notes before accepting the verdict constituted a mode of proceedings error, thereby excusing the need for preservation through objection.

<strong>Holding</strong>

1. No, because defense counsel had meaningful notice of the jury’s inquiries and the trial court’s intended course of action, the failure to respond to the jury’s notes before accepting the verdict did not constitute a mode of proceedings error and thus required preservation.

<strong>Court’s Reasoning</strong>

The court relied on Criminal Procedure Law (CPL) § 310.30, which requires meaningful notice of jury inquiries. The court distinguished between (1) the trial court’s failure to provide meaningful notice of the jury’s substantive inquiries, which constitutes a mode of proceedings error, and (2) the trial court’s failure to meaningfully respond to those inquiries, where meaningful notice had been given. Citing prior case law such as *People v. O’Rama*, the court found that providing counsel with meaningful notice meant that the court must inform counsel of the actual specific content of the jurors’ request. In Mack, the court found that counsel had meaningful notice of the jury’s inquiries. The Court also noted that mode of proceedings errors are a “very narrow exception” to the preservation rule and must go “to the essential validity of the process and [be] so fundamental that the entire trial is irreparably tainted.” The court reasoned that in this case, counsel had the knowledge needed to object, and a timely objection could have easily resolved the issue. Further, the court stated that a contrary ruling would incentivize defense attorneys to make strategic choices to create appellate issues. The court emphasized that the error did not prevent the defendant from participating meaningfully in the trial.

<strong>Practical Implications</strong>

This case underscores the importance of timely objections in criminal trials. Attorneys must be vigilant in preserving the record, even when the trial court’s actions appear to be in error. The holding clarifies that when counsel has meaningful notice of a jury’s inquiry and the trial court’s planned response, failure to object to the response procedure forfeits the right to appeal. It directly impacts how attorneys should respond to jury notes and court procedures during deliberations. Lawyers must be prepared to object when necessary to preserve claims for appeal, understanding that silence, even when an error appears to have occurred, can be fatal to an appeal. Later cases will likely cite *Mack* for the rule that a trial court’s unresponsiveness to a jury’s note is not a mode of proceedings error where defense counsel had meaningful notice and the opportunity to object.