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JURY-NOTE ERROR REQUIRED REVERSAL; ALL INDICTMENT COUNTS WERE TAINTED BY THE JURY-NOTE ERROR; UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY.

The Second Department, reversing defendant’s conviction, determined (1) there was no evidence the trial judge gave counsel notice and a chance to respond to a jury note, (2) the jury-note error affected all the counts of which defendant was convicted, and (3) the videotaped statement of an unsworn witness was properly admitted based upon proof the witness was unavailable due to defendant’s intentional misconduct:

Here, the jury submitted a note stating, “Please clarify 1st degree assault; 2nd degree assault; 2nd degree manslaughter [and] 2nd degree murder.” The Supreme Court did not read the contents of the note into the record at any point, and there is no record indication that the court communicated to the parties that a jury note had been received. Instead, after a recess for deliberations, the court merely stated “let us revisit these counts,” and then it gave the charges for those offenses. The court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error … , which requires reversal of the judgment and a new trial … . …

When the error at issue relates to a mistake in the court’s charge to the jury, the primary focus is on any effect the error “might have had on the jury’s ability to deliberate fairly on the non-tainted counts, although attention must of course be paid as well to the evidentiary relationship between the tainted counts and the non-tainted counts” … . Reversal is required if “there is a reasonable possibility’ that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way'” … . In this case, given the evidentiary relationship between the tainted counts and the weapon possession count, it cannot be said that there is no reasonable possibility that the jury’s decision to convict on the other counts did not influence its guilty verdict on the weapon possession count … . …

In a criminal case, the out-of-court statements of a witness may be admitted as direct evidence at trial where, inter alia, the witness is unavailable to testify and proof establishes that the witness’s unavailability was procured by intentional misconduct on the part of the defendant … . People v Thomas, 2017 NY Slip Op 00497, 2nd Dept 1-25-17

 

CRIMINAL LAW (JURY-NOTE ERROR REQUIRED REVERSAL, ALL COUNTS TAINTED BY THE JURY-NOTE ERROR, UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY)/JURY NOTES (CRIMINAL LAW, JURY-NOTE ERROR REQUIRED REVERSAL, ALL COUNTS TAINTED BY THE JURY-NOTE ERROR, UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY)/EVIDENCE (CRMINAL LAW, UNSWORN VIDEOTAPED STATEMENT OF WITNESS PROPERLY ALLOWED BECAUSE DEFENDANT CAUSED THE WITNESS’S UNAVAILABILITY)

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EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT, CRITERIA EXPLAINED. APPELLATE COURT NEED NOT REVIEW ISSUES NOT SUPPORTED BY DOCUMENTS IN THE APPENDIX; COUPLING...