The First Department, over a concurrence, determined defendant was entitled to a new trial for two reasons: (1) the defendant should have been provided with Rosario material which tended to show the police may have confused defendant with another person arrested at the same time; and (2) the trial judge committed a mode of proceedings error by communicating with the jury off the record and outside the presence of defendant and counsel. The concurrence argued the judge did not commit a mode of proceedings error:
Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party … . Furthermore, as we have stated, where there is evidence raising the possibility of a “police motive to fabricate,” cross-examination of police witnesses is “highly relevant” … . Thus, Supreme Court’s errors deprived defendant of his right to present a defense … . As there was “a reasonable possibility that the non-disclosure materially contributed to the result of the trial” … , Supreme Court’s errors were not “harmless beyond a reasonable doubt” … .
Were we not reversing on the basis of error regarding the Rosario material and the related cross-examination, we would reverse on another ground — namely, Supreme Court’s communication with the jury off the record and outside the presence of defendant and his counsel.After the jurors had been deliberating for four days, they sent a note to the court stating they were deadlocked on the third count of the indictment and asking for guidance. The court discharged the jury for the day in contemplation of taking further actions, possibly including the delivery of an Allen charge, in the morning. The next morning, in defendant’s and his counsel’s absence, the court instructed the jury, off the record, to resume deliberations. The same afternoon, the court informed defendant and his counsel of this instruction, and counsel did not object. People v Farez, 2017 NY Slip Op 04041, 1st Dept 5-18-17
CRIMINAL LAW (TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/EVIDENCE (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/ROSARIO MATERIAL (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/JURIES (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/MODE OF PROCEEDINGS ERROR (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)