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Trial Judge’s Violation of CPL 310.30 in Responding to Jury Note Constituted Reversible “Mode of Proceedings” Error

In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained:

…[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from the preservation requirements and requires reversal … . Accordingly, the judgment must be reversed, and a new trial ordered … . People v Howell, 2013 NY Slip Op 03342, 2nd Dept, 5-8-13

 

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Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal 

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness.  The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him.  The Fourth Department explained:

It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper.  People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

RIGHT TO PRESENT A DEFENSE

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Questions About Whether Trial Judge Properly Handled Jury Notes Sent Out During Deliberations Required Reconstruction Hearing

In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30.  Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents).  The Fourth Department explained the “jury-note” requirements and procedures as follows:

In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .

In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note … .  People v Kahley, KA 08-02494, 74, 4th Dept, 4-26-13

 

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Failure to Follow Statutory Procedure Re: Notes Sent Out By Jury Is a “Mode of Proceedings” Error Requiring Reversal

In reversing a conviction because the trial court committed a “mode of proceedings” error (not requiring preservation) by not following the procedure mandated in Criminal Procedure Law 310.30 (re: notes sent out by the jury during deliberations), the Second Department explained:

“Specifically, the Court of Appeals has held that whenever a substantive written jury communication is received by the Judge,’ it should be read into the record in the presence of counsel,’ and that, [a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses'” … . These requirements were not satisfied here.People v Fenton, 2013 NY Slip Op 02761, 2nd Dept, 4-24-13

 

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In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:

Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

 

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Discharge of Defense Attorney Was Abuse of Discretion; Issue Survives Guilty Plea 

The appellate division determined the trial court had abused its discretion in discharging defendant’s attorney and that the issue had not been forfeited by defendant’s guilty plea.  In affirming the appellate division, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:

Here, the claim to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant’s guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court’s disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny.  People v Griffin, 46. CtApp, 4-2-13

 

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Defendant’s Understanding Guilty Plea Would Result In Only a Year and a Half More in Prison Required Vacation of Plea

At the time defendant pled guilty to conspiracy, his 6-12 year sentence was to run concurrently with previously imposed 41/2 to 9 sentences (for class B felonies) and his understanding was that his minimum time in prison would be extended by only a year and a half.  Subsequently the B-felony convictions were reduced to three years under the Drug Law Reform Act.  The defendant then moved to vacate the conspiracy sentence and conviction but the motion was denied.  The Court of Appeals reversed and wrote:

Defendant’s plea to the conspiracy count was induced by the judge’s specific representation to him that he would thereby extend his minimum incarceratory term by a year and a half only. It simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance. Generally, “when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court” … .  People v Monroe, 41, CtApp 4-2-13

 

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District Attorney’s Prosecution of a Case in Which the Complainant Was a Sitting Judge Created the Appearance of Impropriety—A Special Prosecutor Should Have Handled the Case

A sitting City Court judge was the complainant in a harassment case.  A judge and a defense attorney from another county were appointed to handle the case.  The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant.  That request was denied and the denial was affirmed on appeal to County Court.  The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed, finding the District Attorney’s Office’s involvement in the case created the appearance of impropriety:

Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety – the appearance that the District Attorney’s Office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate. The complainant was a City Court Judge who had the authority to preside over cases involving this District Attorney’s office, and the criminal charges were unrelated to her official position, so that her status as a judge should not have been a factor in the resolution of the case. Nor was there anything unique or unusual about the charges, since they involved communications between two people who had formerly been in an intimate relationship – a scenario frequently seen in harassment cases. However, despite protracted and repeated plea negotiations, the District Attorney’s office did not offer defendant a reduced charge or agree to a plea that included a favorable sentence, such as an ACD, community service, or the like. While this alone would not be enough to raise an appearance of impropriety, there are other aspects of the record that do. Defendant’s original counsel from the Public Defender’s office, who had represented defendants in cases involving this District Attorney’s office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant. Although provided ample opportunity to respond, the District Attorney’s office replied with nothing more than conclusory denials, failing to rebut the allegations with even a single example of a comparable case it had similarly refused to resolve with an ACD or a plea to a violation. Because the District Attorney’s office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.  People v Adams, 47, CtApp 3-28-13

 

 

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Court’s Failure to Inquire Further When It Was Not Clear Defendant’s Plea Was Knowing and Voluntary Required Vacation of Plea

In a criminal contempt (first degree) case, the Fourth Department determined defendant’s plea colloquy “negated essential elements of the crime to which he pleaded guilty inasmuch as his colloquy indicated that the order of protection was not issued pursuant to the statutory sections set forth in Penal Law [section] 215.51 (c), and that the predicate conviction was not based upon a violation of such an order of protection.”  In light of the colloquy, County Court had a duty to inquire further to make sure the plea was knowing and voluntary.  The plea was vacated. People v Coleman, 25, KA 09-01157, 4th Dept. 3-15-13

 

 

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Taser or Stun Gun Is Not a “Dangerous Instrument” for Purposes of Burglary and Menacing Statutes; Court Must Articulate Specific Reasons for Shackling Defendant During Trial

Proof that the defendant threatened the complainant with a taser or stun gun was legally insufficient to establish the “dangerous instrument” element of burglary in the first degree and menacing in the second degree.  Although the Second Department determined it was harmless error, the Court also noted that it was error to shackle the defendant and put black bunting around the defense table, without also putting black bunting around the prosecution table. The jury, in that circumstance, may have inferred the bunting was designed to hide shackles.  “The federal constitution ‘forbids the use of visible shackles … unless that use is justified by an essential state interest … specific to the defendant on trial’ …”.  County Court, in this instance, failed to articulate on the record an adequate justification individualized to the defendant for the shackling … .  People v Morillo, 2013 NY Slip Op 01572, 2010-11438, Ind No 2052/09, 2nd Dept. 5-13-13

 

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