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Jury Instructions Which Lumped Counts Together and Did Not Give the Jury the Information Necessary to Distinguish One Count from Another Mandated a New Trial

The Second Department determined a new trial was required because the jury instructions were defective.  The court lumped counts charging the same crime together when explaining the elements, but did not give the jury any indication how the counts differed from one another.  The jury was given no indication which counts implicated defendant as an accessory and which counts implicated defendant as a principal:

We agree with the defendant that the charge, as given, suggested that if the jury found the defendant guilty of any one of the subject counts, it should find him guilty of all three counts. Furthermore, because the court’s charge failed to define the counts in a way that would distinguish them from one another, the jury could not have known which count was based on a finding that the defendant had engaged in sexual intercourse with the complainant and which count was based on accessorial liability and a finding that the codefendant had engaged in sexual intercourse with the complainant. Contrary to the People’s contention, parenthetical notations on the verdict sheet cannot supplant a court’s duty to charge the jury as required by CPL 300.10(4). Since it is not possible to determine whether the jury here actually found that the defendant had himself engaged in sexual intercourse with the complainant or that he had acted as an accessory to the codefendant’s sexual intercourse with the complainant, the defendant is entitled to a new trial on those charges … . People v Jadharry, 2014 NY Slip Op 04028, 2nd Dept 6-4-14

 

Judge Properly Refused to Accept Defendant’s Plea to a Lesser Offense Because the Prosecutor Objected to the Plea Allocution as Insufficient

The Second Department determined the judge properly refused to accept defendant’s plea to a lesser offense when the prosecutor objected to the plea colloquy as insufficient:

“Since, in effect, permission to enter a lesser plea is a matter of grace, reasonable conditions may be attached thereto. What is reasonable is generally a question of fact attendant upon the circumstances” … . “A District Attorney may dictate the terms under which he [or she] will agree to consent to accept a guilty plea and where his terms are not met, he [or she] may withhold such consent; the withholding of such consent by statutory mandate renders the court without authority to accept a plea to anything less than the entire indictment” … . Here, in view of the prosecutor’s objections to the plea allocution, the court did not err in refusing to accept the plea … . People v Swails, 2014 NY Slip Op 03545, 2nd Dept 5-14-14

 

Judge’s Statement Defense Counsel Should Confine Her Opening to What She Intended to Prove, Under the Facts, Did Not Shift Burden of Proof

The Second Department determined the trial judge’s admonition to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof:

Contrary to the defendant’s contention, the Supreme Court’s admonitions to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof. The court thoroughly instructed the jury that the defense did not have to make an opening statement, that the burden of proof remained with the People, and that the defendant had no burden … . Furthermore, the court’s comments did not prevent defense counsel from completing her opening statement, or overly restrict her opening statement … . Under the circumstances of this case, there is no realistic view that the court’s remarks could be interpreted so as to skew the burden of proof .. . The court’s remarks were brief, isolated, and innocuous in context … . People v Robles, 2014 NY Slip Op 02960, 2nd Dept 4-30-14

 

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Court Properly Allowed Defendant to Proceed Pro Se Three Weeks Into His Murder Trial

The Third Department affirmed defendant’s conviction for murder, rejecting the claim that county court’s informing all the jurors that defendant’s prior conviction for the same offenses had been reversed, as well as the community’s knowledge about the case due to publicity, deprived defendant of a fair trial.  In addition, the Third Department concluded that the trial judge did not err in allowing the defendant to proceed pro se three weeks into the trial.  With respect to the propriety of allowing the defendant to represent himself, the court explained:

Here, there is no question that defendant’s mid-trial request to proceed pro se — made some three weeks after the trial commenced — was untimely … . Faced, however, with defendant’s repeated, articulate and impassioned pleas to represent himself, County Court elected — in an exercise of its discretion — to consider the merits of defendant’s request. Although defendant now faults County Court’s decision in this regard, we cannot say — under the particular facts of this case — that reversal upon this ground is warranted.

To be sure, the Court of Appeals has held that once a trial has commenced and witnesses have testified, a defendant’s “right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances” … . The rationale for this rule, however, stems from concerns regarding “the potential for obstruction and diversion” that may attend a defendant’s decision — or be part of a defendant’s strategy — to abandon representation in the midst of the trial, as well as a desire to “avert[] delay and confusion” … . Such concerns were not an issue here, however, and it is clear that, under appropriate circumstances and following sufficient inquiry, mid-trial requests to proceed pro se may be granted … . Based upon our review of the record as whole, and taking into consideration defendant’s insistence that he be allowed to proceed pro se, we are satisfied that County Court did not abuse its discretion in considering the merits of defendant’s request.

As to the sufficiency of County Court’s inquiry, suffice it to say that County Court — repeatedly and in great detail — apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade defendant from doing so. Specifically, County Court cautioned defendant that, while he may have been well versed with the facts of his case, “[t]he practice of law [was] not a simple process” and entailed education and experience that defendant did not possess. County Court went on to note the then-impending testimony of the People’s handwriting and DNA experts and suggested that defendant consider the legal expertise that counsel could bring to examining those witnesses. Additionally, County Court advised defendant that, if he proceeded pro se, he would be held to the same standard as an attorney and would be responsible for the “day-to-day operation of the [trial],” which would include making appropriate objections and motions, cross-examining the People’s witnesses, conducting his defense and preparing a summation. In this regard, County Court expressly warned defendant that his ability to introduce certain evidence or effectively argue any applicable motions likely would be hampered by his lack of legal training, and defendant was afforded ample opportunity to consider (and reconsider) his request and to discuss the matter with counsel.

To be sure, County Court’s inquiry could have been more seamless, but the Court of Appeals has expressly rejected a strict, formulaic approach in this regard, requiring only that the record as a whole “affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . People v Dashnaw, 2014 NY Slip Op 02624, 3rd Dept 4-17-14

 

Trial Court’s Decision to Conduct Trial in Defendant’s Absence Without Consideration of the Factors Mandated for Consideration by the Court of Appeals Required Reversal

The Third Department reversed defendant’s conviction because the trial judge did not consider the appropriate factors before continuing with the trial without the defendant’s presence:

“A defendant’s right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal and New York Constitutions, and by statute” … . Even where, as here, “a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized”… . Rather, it must also appear from the record that the trial court considered “all appropriate factors” before proceeding in defendant’s absence, “including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesses will disappear” … . As the Court of Appeals has instructed, “[i]n most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile” … .

Here, the record fails to demonstrate that Supreme Court considered any of the appropriate factors. When defendant failed to appear on the morning that trial was scheduled to commence, defense counsel represented to the court that he had no information as to defendant’s whereabouts and requested an adjournment. Supreme Court declined to grant an adjournment, issued a bench warrant for defendant’s arrest and pronounced its decision to proceed immediately to trial. People v June, 105292, 3rd Dept 4-3-14 

 

Questioning of Witnesses by Trial Judge Did Not Deprive Defendant of a Fair Trial

The First Department, in a full-fledged opinion by Justice Andrias, determined that the participation of the judge in the questioning of witnesses did not rise to the level of depriving the defendant of a fair trial:

The guarantee of a fair trial does not “inhibit a Trial Judge from assuming an active role in the resolution of the truth” … . Thus, a trial judge is permitted “to question witnesses to clarify testimony and to facilitate the progress of the trial,” and, if necessary, to develop factual information … . However, a judge may not “take [] on either the function or appearance of an advocate at trial” … .

The “substance and not the number of questions asked is the important consideration” … . Even if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is “not prevented from arriving at an impartial judgment on the merits” … . Notably, although the exercise of a trial court’s power to question witnesses should be exercised “sparingly” …, “in the case of expert testimony, the court’s intervention is often necessary to assist the jurors in comprehending matters of specialized knowledge” … , and the trial judge is afforded greater leeway.

The record before us establishes that the trial court did not take on the function and appearance of an advocate. * * *

Furthermore, although it is true that a “claim that the intrusion of the Trial Judge deprived [the defendant] of his constitutional right to a fair trial is not subject to harmless error analysis” …, the strength or weakness of the evidence may be considered as a factor in determining whether the defendant received a fair trial … .  People v Adams, 2014 NY Slip Op 02349, 1st Dept 4-3-14

 

Mischaracterization of a Jury Note Required Reversal

The Second Department determined that the trial court’s mischaracterization of a jury note required reversal:

The Supreme Court mischaracterized the contents of the note to counsel as merely requesting a readback of the elements of the charged offenses rather than as indicating the jury’s apparent erroneous impression that proof of a single element of each crime was sufficient to render a guilty verdict … . In thus mischaracterizing the note, the Supreme Court did not afford defense counsel the opportunity to participate in the formulation of the court’s response to the jury’s confusion. “Since defense counsel was not afforded the opportunity to provide suggestions, [s]he was prevented from participating meaningfully at this critical stage of the proceedings” … . “In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal” (People v Tabb, 13 NY3d 852, 853), despite defense counsel’s failure to object to the court’s treatment of the jury note … . Furthermore, meaningful notice of the contents of a jury note must take place on the record … . Accordingly, contrary to the People’s contention, a reconstruction hearing to determine whether counsel was provided with the note off the record would be neither appropriate nor helpful … . People v Giraldo, 2014 NY Slip Op 02309, 2nd Dept 4-2-14

 

Response to Jury Note Without Notice to Defendant Required Reversal and a New Trial

Over a dissent, the Fourth Department determined the trial court committed a mode of proceedings error by responding to a jury request for exhibits without notice to the defendant:

CPL 310.20 (1) provides that, upon retiring to deliberate, the jurors may take with them “[a]ny exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take” (emphasis added). CPL 310.30 provides that, “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to . . . the content or substance of any trial evidence . . . Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added). Here, as part of its instructions to the jury, the court informed the jurors that “[e]xhibits that were received in evidence are available, upon your request, for your inspection and consideration.” The court, however, neither elicited on the record whether defendant, who proceeded pro se at trial, waived his right to be present when such a request was made nor informed defendant on the record that the exhibits would be given to the jury without reconvening. Prior to receiving the jury’s verdict, the court indicated that it had received a jury note “that has been marked as a Court Exhibit which was just the jury requesting certain items of evidence that had already been admitted and received in evidence, that they were provided with those items pursuant to discussions we had and what they were told before deliberations.” We note that those “discussions” do not appear to have been transcribed, and no agreement by defendant to forego the right to be present for the receipt of jury notes appears in the record before us. Inasmuch as the court failed to obtain defendant’s express agreement waiving his right to be present for the reading of the jury note at issue, we conclude that the court committed a mode of proceedings error when it provided exhibits to the jury in response to a jury note without notice to defendant, thereby requiring reversal of the judgment and a new trial … . People v Roberites, 164.1, 4th Dept 3-28-14

 

Trial Court’s Failure to Properly Characterize the Nature of the Jury’s Request for “Clarification” of Certain Counts Was a Reversible Mode of Proceedings Error

The Second Department determined Supreme Court committed a reversible mode of proceedings error when it mischaracterized the meaning of a jury note.  The note requested clarification of the criminal possession of a weapon counts.  The court explained the note as a request for a readback of the relevant jury instructions:

…[T]he jury requested “clarification on the counts of criminal possession of a weapon in the second degree.” Notwithstanding the foregoing, in the presence of the defendant, counsel, and the jury, the Supreme Court mischaracterized that note as asking “to have read to us the counts of” criminal possession of a weapon in the second degree. In apprising counsel of the contents of that note, the Supreme Court omitted the word “clarification.” The court proceeded to provide the jury with certain legal instructions on the counts of criminal possession of weapon in the second degree. The jury’s request for “clarification” was not a request for a “mere ministerial readback” of the Supreme Court’s charge … . Meaningful notice of a jury’s note “means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” … . Under these circumstances, the Supreme Court’s mode of proceedings error requires reversal of the judgment and a new trial (see People v Patterson, 39 NY2d 288, 295-296). People v Thomas, 2014 NY Slip Op 02090, 2nd Dept 3-26-14

 

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No Constitutional Right to a Sua Sponte Inquiry Into Defendant’s Mental Health Before Allowing Defendant to Proceed Pro Se

In a full-fledged opinion by Judge Graffeo, the Court of Appeals acknowledged that a defendant may be competent to stand trial but not competent to proceed pro se, but determined the trial court did not violate defendant’s constitutional rights by not conducting a sua sponte inquiry into his mental health when he asked proceed pro se:

Defendant submits that [Indiana v Edwards (554 US 164 [2008])] requires states to adopt a two-tiered competency standard — a baseline for competency to stand trial and a separate, heightened standard for competency to proceed pro se at trial — and compels a competency hearing before a defendant may be permitted to proceed pro se. But we do not view Edwards as imposing such a requirement — and our interpretation is in accord with the federal appellate courts that have addressed the issue … . Although a court has discretion to require representation by counsel in certain circumstances despite a request to proceed pro se, it does not follow that the Constitution is offended if that discretion is not exercised. People v Stone, 5, CtApp 2-13-14

 

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