Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)—Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)

The Second Department explained when an expanded jury instruction concerning the voluntariness of defendant’s statement is proper (criteria not met here), and noted that a judge should never participate in the readback of testimony (not reversible error here):

A defendant is entitled to raise the issue of voluntariness both at a suppression hearing and at trial (see CPL 710.70[3]…). At trial, however, the court is not required to instruct the jury on the issue of voluntariness unless the defendant requests the charge, and “evidence sufficient to raise a factual dispute has been adduced either by direct or cross-[*2]examination” … . Here, nothing in the evidence adduced at trial raised a factual dispute about the voluntariness of the defendant’s statement … . * * *

…[W]e again remind the trial justice that he should not participate as a reader when readbacks are requested by a jury …, and that this type of participation should not be repeated. In this regard, the court’s practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback … . “[A]s a general matter, a trial judge should shun engaging in readbacks of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors”… . People v Baranov, 2014 NY Slip Op 06596, 2nd Dept 10-1-14