O'Rama error in New York

2022Memorandum: On appeal from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25 [2]), defendant contends that County Court committed an O'Rama violation that constituted a mode of proceedings error when it failed to give defense counsel an opportunity for input before responding to a note from the jury ( see People v O'Rama , 78 NY2d 270, 277-278 [1991]).

2022Memorandum: On appeal from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25 [2]), defendant contends that County Court committed an O'Rama violation that constituted a mode of proceedings error when it failed to give defense counsel an opportunity for input before responding to a note from the jury ( see People v O'Rama , 78 NY2d 270, 277-278 [1991]).

2022The defendant was ultimately acquitted of that count, and the Court of Appeals has made it clear that an O'Rama error in the handling of a note that pertains to only a particular count or counts does not require the reversal of other counts to which the note does not pertain ( see People v Silva , 24 NY3d at 301 n 2; People v Walston , 23 NY3d at 990 ).

2022The defendant was ultimately acquitted of that count, and the Court of Appeals has made it clear that an O'Rama error in the handling of a note that pertains to only a particular count or counts does not require the reversal of other counts to which the note does not pertain ( see People v Silva , 24 NY3d at 301 n 2; People v Walston , 23 NY3d at 990 ).

2019Moreover, we note that even a ministerial response by the court was obviated by the fact that the second note at issue nullified the request contained in the first note ( see People v Albanese , 45 AD3d 691, 692 [2d Dept 2007], lv denied 10 NY3d 761 [2008]).

2019Moreover, we note that even a ministerial response by the court was obviated by the fact that the second note at issue nullified the request made in the first note ( see People v Albanese , 45 AD3d 691, 692 [2d Dept 2007], lv denied 10 NY3d 761 [2008]).

2020This makes sense, as the purpose of the O'Rama requirement that counsel must receive meaningful notice of a substantive jury inquiry is "to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response" ( People v Kisoon , 8 NY3d at 134 ; see People v Parker , 32 NY3d at 59; People v O'Rama , 78 NY2d at 276-277 ).

2014Although the defendant failed to object to the manner in which the trial court handled the three jury notes in question, under the circumstances of this case, the O’Rama error is not subject to the preservation requirement (see People v Walston, 23 NY3d 986, 989-990 [2014]). “ ‘[T]he trial court’s core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request — in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response — and to provide a meaningful response to the ju

2015The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” (People v Starling, 85 NY2d 509, 516 [1995]; see People v Ramirez, 15 NY3d 824, 825 [2010]).

2015The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” (People v Starling, 85 NY2d 509, 516 [1995]; see People v Ramirez, 15 NY3d 824, 825 [2010]).

2026Reliance on the presumption of regularity was specifically rejected by the Court of Appeals when it subsequently held in Parker that the "presumption of regularity cannot salvage an O'Rama error" where there is no "specific, record proof" that the entire contents of the note were shared with counsel ( see Parker , 32 NY3d at 59-60).

2026Reliance on the presumption of regularity was specifically rejected by the Court of Appeals when it subsequently held in Parker that the "presumption of regularity cannot salvage an O'Rama error" where there is no "specific, record proof" that the entire contents of the note were shared with counsel ( see Parker , 32 NY3d at 59-60).

2015The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” (People v Starling, 85 NY2d 509, 516 [1995]; see People v Ramirez, 15 NY3d 824, 825 [2010]).

2015The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” (People v Starling, 85 NY2d 509, 516 [1995]; see People v Ramirez, 15 NY3d 824, 825 [2010]).

2016Likewise, it was not a mode of proceedings error to fail to fully respond to the jury’s note seeking testimony about surveillance prior to taking the verdict, inasmuch as the jury could have resolved that factual issue on its own without further input from the court (see People v Albanese, 45 AD3d 691, 692 [2007], lv denied 10 NY3d 761 [2008]; People v Sanders, 227 AD2d 506, 506 [1996], lv denied 88 NY2d 994 [1996]).

2016Likewise, it was not a mode of proceedings error to fail to fully respond to the jury’s note seeking testimony about surveillance prior to taking the verdict, inasmuch as the jury could have resolved that factual issue on its own without further input from the court (see People v Albanese, 45 AD3d 691, 692 [2007], lv denied 10 NY3d 761 [2008]; People v Sanders, 227 AD2d 506, 506 [1996], lv denied 88 NY2d 994 [1996]).

2022We reject that contention. "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v Nealon , 26 NY3d 152, 161 [2015]; see People v Williams , 142 AD3d 1360 , 1362 [4th Dept 2016], lv denied 28 NY3d 1128 [2016]).

2022We reject that contention. "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v Nealon , 26 NY3d 152, 161 [2015]; see People v Williams , 142 AD3d 1360 , 1362 [4th Dept 2016], lv denied 28 NY3d 1128 [2016]).

2019We thus conclude that "there was no O'Rama error requiring this Court to reverse the judgment" based on those notes ( People v Hall , 156 AD3d 1475, 1476 [4th Dept 2017], lv denied 11 NY3d 789 [2008]).

2019We thus conclude that "there was no O'Rama error requiring this Court to reverse the judgment" based on the two notes ( People v Hall , 156 AD3d 1475, 1476 [4th Dept 2017]).

2018Furthermore, we have explained that an insufficient record cannot be overcome with speculation about what might have occurred. [FN4] "The 'presumption of regularity' cannot salvage an O'Rama error of this nature" ( People v Silva , 24 [*6]NY3d 294, 300 [2014] [citation omitted], quoting People v Velasquez , 1 NY3d 44, 48 [2003]).

2018Furthermore, we have explained that an insufficient record cannot be overcome with speculation about what might have occurred. [FN4] "The 'presumption of regularity' cannot salvage an O'Rama error of this nature" ( People v Silva , 24 [*6]NY3d 294, 300 [2014] [citation omitted], quoting People v Velasquez , 1 NY3d 44, 48 [2003]).

2018Indeed, in People v Cruz , we heard an appeal on an O'Rama issue after a reconstruction hearing had been held—a procedure that the presiding Chief Judge characterized as a "very useful exercise" ( 14 NY3d 814, 818 [2010, Lippman, Ch.

2014People v Velasquez, 1 NY3d 44, 48 [2003]) cannot salvage an O’Rama error of this nature (see People v Tabb, 13 NY3d 852, 852 [2009]) and this is not the first time — contrary to our dissenting colleague’s belief — that a judge’s apparent unawareness of a jury note or unresponsiveness has led to a new trial (see People v Cruz, 14 NY3d 814, 816 [2010]). 1 And, somewhat ironically, the dissent recognizes that the errors in these appeals were so fundamental that they are exempt from the preservation rule (see dissenting op at 302).

2014Although the defendant failed to object to the manner in which the trial court handled the three jury notes in question, under the circumstances of this case, the O’Rama error is not subject to the preservation requirement (see People v Walston, 23 NY3d 986, 989-990 [2014]). “ ‘[T]he trial court’s core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request — in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response — and to provide a meaningful response to the ju

2014Although the defendant failed to object to the manner in which the trial court handled the three jury notes in question, under the circumstances of this case, the O’Rama error is not subject to the preservation requirement (see People v Walston, 23 NY3d 986, 989-990 [2014]). “ ‘[T]he trial court’s core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request — in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response — and to provide a meaningful response to the ju

2020Moreover, since the failure to disclose a jury note to counsel is a mode of proceedings error, it cannot be overlooked as harmless even where the evidence is otherwise overwhelming ( see People v Mack , 27 NY3d at 540 ).

2020Moreover, since the failure to disclose a jury note to counsel is a mode of proceedings error, it cannot be overlooked as harmless even where the evidence is otherwise overwhelming ( see People v Mack , 27 NY3d at 540 ).

2023In March 2017, we reversed the judgment and granted a new trial based on an O'Rama error, and on June 28, 2018, the Court of Appeals affirmed our decision ( People v Morrison , 148 AD3d 1707 [4th Dept 2017], affd 32 NY3d 951 [2018]).

2023In March 2017, we reversed the judgment and granted a new trial based on an O'Rama error, and on June 28, 2018, the Court of Appeals affirmed our decision ( People v Morrison , 148 AD3d 1707 [4th Dept 2017], affd 32 NY3d 951 [2018]).

2023In March 2017, we reversed the judgment and granted a new trial based on an O'Rama error, and on June 28, 2018, the Court of Appeals affirmed our decision ( People v Morrison , 148 AD3d 1707 [4th Dept 2017], affd 32 NY3d 951 [2018]).

2023In March 2017, we reversed the judgment and granted a new trial based on an O'Rama error, and on June 28, 2018, the Court of Appeals affirmed our decision ( People v Morrison , 148 AD3d 1707 [4th Dept 2017], affd 32 NY3d 951 [2018]).

2026An "insufficient record cannot be overcome with speculation about what might have occurred" ( id . at 60; see also People v Walston , 23 NY3d 986, 990 [2014]; People v Salas , - NY3d at -, 2025 NY Slip Op 03603 at *2).

2026An "insufficient record cannot be overcome with speculation about what might have occurred" ( id . at 60; see also People v Walston , 23 NY3d 986, 990 [2014]; People v Salas , - NY3d at -, 2025 NY Slip Op 03603 at *2).

2025We disagree and hold that where a transcript of on-the-record proceedings material to a defendant's O'Rama claim is missing, the proper remedy is a reconstruction hearing, provided that the defendant's conduct "evidence[s] a good faith purpose to obtain prompt and effective reconstruction" ( see Parris , 4 NY3d at 49 ).

2025We disagree and hold that where a transcript of on-the-record proceedings material to a defendant's O'Rama claim is missing, the proper remedy is a reconstruction hearing, provided that the defendant's conduct "evidence[s] a good faith purpose to obtain prompt and effective reconstruction" ( see Parris , 4 NY3d at 49 ).

2024When an O'Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with 'due regard' for the facts of the case, the nature of the error, and [*2]the 'potential for prejudicial impact on the over-all outcome' ( People v Doshi , 93 NY2d 499, 504-505 [1999], quoting People v Baghai-Kermani , 84 NY2d 525, 532 [1994]).

2024When an O'Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with 'due regard' for the facts of the case, the nature of the error, and [*2]the 'potential for prejudicial impact on the over-all outcome' ( People v Doshi , 93 NY2d 499, 504-505 [1999], quoting People v Baghai-Kermani , 84 NY2d 525, 532 [1994]).

2024When an O'Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with 'due regard' for the facts of the case, the nature of the error, and [*2]the 'potential for prejudicial impact on the over-all outcome' ( People v Doshi , 93 NY2d 499, 504-505 [1999], quoting People v Baghai-Kermani , 84 NY2d 525, 532 [1994]).

2024When an O'Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with 'due regard' for the facts of the case, the nature of the error, and [*2]the 'potential for prejudicial impact on the over-all outcome' ( People v Doshi , 93 NY2d 499, 504-505 [1999], quoting People v Baghai-Kermani , 84 NY2d 525, 532 [1994]).

2022We reject that contention. "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v Nealon , 26 NY3d 152, 161 [2015]; see People v Williams , 142 AD3d 1360 , 1362 [4th Dept 2016], lv denied 28 NY3d 1128 [2016]).

2022We reject that contention. "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v Nealon , 26 NY3d 152, 161 [2015]; see People v Williams , 142 AD3d 1360 , 1362 [4th Dept 2016], lv denied 28 NY3d 1128 [2016]).

2022We reject that contention. "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v Nealon , 26 NY3d 152, 161 [2015]; see People v Williams , 142 AD3d 1360 , 1362 [4th Dept 2016], lv denied 28 NY3d 1128 [2016]).

2022We reject that contention. "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v Nealon , 26 NY3d 152, 161 [2015]; see People v Williams , 142 AD3d 1360 , 1362 [4th Dept 2016], lv denied 28 NY3d 1128 [2016]).