Judges Stein, Fahey and Wilson concur. Chief Judge DiFiore dissents in an opinion, in which Judges Garcia and Feinman concur in a separate dissenting opinion by Judge Garcia.
OPINION BY JUDGE RIVERA:Defendants Lawrence Parker and Mark Nonni challenge their convictions for robbery in the second degree, based on the trial court’s failure to provide counsel with notice of jury requests for information during deliberations and the denial of defendants’ motions to suppress evidence recovered forcibly by the police. Defendants’ claims that the court should have granted the suppression motions, to the extent preserved, are without merit. Pursuant to our well-established rules as set forth in this Court’s seminal decision in People v. O’Rama (78 NY2d 270 [1991]) and its progeny, however, we conclude that, because the record fails to establish that the trial court provided counsel with meaningful notice of the precise contents of two substantive jury notes in discharge of a core obligation under CPL 310.30, a mode of proceedings error occurred and a new trial must be ordered.I. Suppression Hearing Evidence, Jury Note Record, and Decisions BelowDefendants were indicted and jointly tried for various crimes arising from the violent theft of several thousand dollars at a commercial establishment. The morning of the crime, defendants gained access to the building under the ruse that they were interested in renting the space for a private event. Once inside, defendants attacked and bound the complainant with duct tape before taking the money.At defendants’ suppression hearing, testimony from the arresting officers established that on January 21, 2008 at approximately 9:30 a.m., the police received a radio transmission about a burglary in progress. Within five minutes, three police vehicles arrived at the address provided by the 911 caller, which turned out to be a country club in a residential neighborhood. The only people the officers observed in the vicinity were defendants, who were walking together on the gated club’s private driveway and heading towards the street. As the officers walked towards the driveway with their badges displayed, a uniformed officer ordered defendants to stop. This officer announced that they “were police officers and wanted to ask [defendants] a question.” Defendants continued to walk away from the clubhouse, towards the street. The officer again called out, “please, stop, we want to ask you a question.” Defendants then took off in opposite directions from one another and away from the police.Three officers pursued defendant Nonni as he ran up the street. They caught up with and eventually subdued him on the ground. As one of the officers was handcuffing him, a knife sliced through defendant Nonni’s backpack and cut the officer’s finger. The officers then searched the bag and found two other knives and a roll of duct tape. They also retrieved from defendant Nonni’s back-left pocket three bank envelopes, each marked with orange highlighter and each containing $1,000.1While defendant Nonni ran, defendant Parker “briskly walked” in a “hurried pace” and “evasive manner” towards the other side of the street. Two officers followed, and one of them told defendant Parker to stop. As the officer got closer, he could see a sledgehammer in defendant Parker’s unzipped backpack. The officer eventually grabbed defendant Parker from behind, handcuffed him, and retrieved a crowbar from his backpack and a small steak knife from the front pocket of his coat.Based on the evidence at the hearing, the court denied defendants’ respective motions to suppress. The court credited fully the police officers’ testimony and found that under People v. De Bour (40 NY2d 210 [1976]), the officers initially had a common law right of inquiry. Defendants’ immediate flight evinced more than a desire to be let alone, the court added, thus providing reasonable suspicion that both defendants were involved in a crime, which justified their pursuit, and the search and seizure.On the morning of the second day of jury deliberations, the jury sent three substantive notes to the court within the span of an hour. The first note, sent at 11:16 a.m., requested definitions of several of the charged crimes as well as testimony related to where defendants were seen and caught; the second note, sent approximately 15 minutes later, requested testimony regarding fingerprint evidence; and the third note, sent 20 minutes later, requested testimony of the complainant and his wife.The notes were marked into evidence as court exhibits. Outside of the jury’s presence, the court stated on the record that it had received those three notes, which it would “be reading into the record after the jury [wa]s seated[,] and [that it was] going to respond to at least one of those notes” at that time. The court continued that it believed counsel agreed upon the sections of the testimony that would be read to the jury in response to the first note. As it turned out, there were open issues and so the court engaged in an on-the-record discussion with counsel as to the contents of the readback. At that time, the court did not read the other notes into the record nor mention whether counsel had seen or discussed those notes.When the jury returned to the courtroom, the court stated on the record that it had received three notes and would read them back. The court then read the first note and proceeded to read back the requested testimony. At the conclusion of the readback, the court stated, “the additional testimony that you requested in the other two notes, we’ll respond to that after lunch.” The court also informed the jurors that they could deliberate during lunch.After that one-hour break, the court announced on the record that the jury had sent a note indicating it had reached a verdict. In response to the court’s inquiry, defense counsel and the prosecutor confirmed that they had seen this last note. The court then accepted the verdict on the record in open court.The Appellate Division affirmed the convictions with two Justices dissenting (People v. Nonni, 135 AD3d 52 [1st Dept 2015]). As relevant to the issues presented in this appeal, the majority concluded that the facts surrounding the police encounter, including defendants’ flight from the police, justified the police action under De Bour. It also held that the knife protruding from defendant Nonni’s backpack and the visible sledgehammer in defendant Parker’s bag justified an immediate, protective search of their respective bags and persons (id. at 58). The Appellate Division did not address the O’Rama violation, which was not raised in that court.II. The Legality of the Police Stop and SearchDefendant Nonni argues that his mere presence on the commercial property did not provide a founded suspicion of criminal activity, and so the police action in pursuing and stopping him was unlawful at its inception. Defendant Nonni alternatively claims that, even if the initial stop was justified, the searches of his back pocket and the envelopes found therein were unconstitutional and the court should have suppressed the fruits of those searches. Defendant Parker does not contest the lower courts’ conclusion that the officers had a common-law right to inquire when they first approached him on the private driveway. Instead, he argues that there is no support for the court’s determination that the police had reasonable suspicion to stop and detain him, as he merely briskly walked, rather than ran, away from them.As a threshold matter, whether the particular circumstances of defendants’ cases gave rise to a founded or reasonable suspicion constitutes a mixed question of law and fact, which is beyond our review if there is record support for the courts’ conclusion that the officers’ actions were justified (see People v. McRay, 51 NY2d 594, 601 [1980] [a mixed question of law and fact is presented where "facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established facts"]; NY Const, art VI; Arthur Karger, Powers of the New York Court of Appeals §21:6 at 754-762 [3d ed rev 2005]). We conclude the record before us provides such support.Police encounters with the public are evaluated under the four-tiered framework established in De Bour. At the first level, law enforcement may engage in minimally-intrusive questioning to request information “when there is some objective credible reason for that interference not necessarily indicative of criminality” (De Bour, 40 NY2d at 223). The second level, the common-law right of inquiry, permits officers “to gain explanatory information, . . . short of a forcible seizure” upon a “founded suspicion that criminal activity is afoot” (id.). The third level, “a forcible stop and detention,” requires the “officer entertain[] a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor,” and “[a] corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that [they are] in danger of physical injury by virtue of the detainee being armed” (id. [citation omitted]). “Finally[,] a police officer may arrest and take into custody a person when [the officer] has probable cause to believe that person has committed a crime, or offense in [the officer's] presence” (id. [citation omitted]).Here, for both defendants, the police had a founded suspicion of criminal activity to support a common-law right of inquiry. The police received a radio transmission of a burglary in progress, and their encounter with defendants at the reported address occurred a mere five minutes later. The officers first saw defendants exiting private property, the scene of a suspected crime. The officers observed no other persons or cars in the secluded, residential area, and it was early in the morning on a federal holiday. In accordance with De Bour, those circumstances were sufficient to justify the officers asking defendants what they were doing and where they were going, and to continue inquiring when defendants did not respond after the officers identified themselves. Further, the officers’ testimony, credited by the court, that defendant Nonni then “actively fled from the police,” combined with the specific circumstances observed by the officers during their initial encounter with defendants, provides sufficient record support for the court’s determination that there was reasonable suspicion of criminal activity to justify defendant Nonni’s pursuit, forcible stop, and detainment (see People v. Woods, 96 NY2d 627, 628 [2002] ["a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit"] [citation omitted]; see also People v. Simmons, 30 NY3d 957, 958 [2017]; People v. Gayden, 28 NY3d 1035, 1037 [2016]; People v. Esquilin, 91 NY2d 902 [1998]).Defendant Parker argues that, regardless of defendant Nonni’s conduct, the police did not have reasonable suspicion to believe he was involved in a crime because instead of actively fleeing, he only briskly walked away from the police. According to the arresting officers’ testimony, after defendant Parker saw defendant Nonni run and some police officers give chase, defendant Parker increased his pace, acted in an evasive manner, and crossed the street onto the front lawn of another property. The officer twice characterized Parker’s movements as “running,” albeit at a slow pace. While active avoidance of a confrontation between the police and an acquaintance does not itself give rise to reasonable suspicion, its combination with the specific, highly-suspicious circumstances observed by the police may give rise to heightened suspicion. Thus, record support exists for the court’s conclusion that the officers had reasonable suspicion, and that the pursuit, stop, and detainment of defendant Parker, as well as the subsequent search of his bag, were permissible.Contrary to defendant Parker’s claim, the Appellate Division did not “improperly expand[] the longstanding rules” set forth in De Bour by considering defendant Nonni’s flight from the police in assessing defendant Parker’s actions. It was not “defendant’s flight in response to an approach by the police” alone, but rather its combination “with other specific circumstances indicating that the suspect may be engaged in criminal activity,” that made this police intrusion allowable (Woods, 98 NY2d at 628). On this mixed question of law and fact, there is record support for the courts’ determination that the officers had reasonable suspicion to believe defendants were involved in a crime, justifying the police conduct (see McRay, 51 NY2d at 601).Defendant Nonni’s alternative claim that the searches of his internal coat pocket and the envelopes found inside were unconstitutional is unpreserved. A question of law is preserved for appeal when “a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05[2]). “[A] general objection — such as that contained in defendant’s omnibus motion — is sufficient to preserve an issue for our review when the trial court ‘expressly decided the question raised on appeal’” (People v. Graham, 25 NY3d 994, 997 [2015], quoting CPL 470.05 [2]).
