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Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant’s Attorney Should Have Been Allowed to Testify at the Suppression Hearing—There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned

The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction.  The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery.   The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:

In its main charge, the court instructed the jury that “[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat.” This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 [“a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt”]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *

The Court of Appeals has held that “an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel” … . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel … . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, “at which point the police are required to cease all questioning” … .

Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he “represented” defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14

 

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Reversible Error to Instruct the Jury On an Affirmative Defense Over Defense Counsel’s Objection

The Fourth Department reversed defendant’s intentional murder conviction because the trial judge, in response to a question from the jury, instructed the jury on the affirmative defense of renunciation over defense counsel’s objection.  The court explained the relevant law:

It is well settled that a court cannot instruct a jury on an affirmative defense where the defendant objects to the instruction … . When a court does so, it impairs a defendant’s “unquestionabl[e] . . . right to chart his [or her] own defense” …; it may “undermine[] the defense chosen by [the] defendant[,] . . . [and] place[] [the] defendant in the midst of contradictory defenses” …; and it indisputably “impose[s] on [the] defendant an affirmative burden of proof he [or she] had not undertaken by his [or her] defense theory” … . The imposition of a burden of proof on a defendant who has not elected to pursue an affirmative defense “constitute[s] an abuse of the affirmative defense in deorgation of [a] defendant’s right to have the State bear the entire burden of proof” … . The 3rd Department has even stated that a court “is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense or force a defendant to raise such a defense” … .

Where, as here, the defendant has repeatedly advanced only a defense, which carries no burden of proof, “the suggestion that he [or she] had assumed a burden of proof . . . ha[s] the potential to mislead the jury” … . The affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence …, that he or she “withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof” (Penal Law § 40.10 [1] [emphasis added]). There was no evidence presented at trial that defendant made any effort, let alone a substantial one, to prevent the commission of the murder. The only conclusion the jury could have drawn was that defendant had failed to meet his burden of establishing the affirmative defense. Here…, “[t]he imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant’s chosen defense strategy resulted in serious prejudice that requires reversal”… . People v Brewer, 2014 NY Slip Op 04606, 4th Dept 6-20-14

 

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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

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

 

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Intent Must Exist Simultaneously with the Act/Accidental Discharge of a Firearm, Even Where the Shooter Intends to Assault the Victim, Does Not Constitute Intentional Assault/Loss of Police Officer’s Handwritten Notes Did Not Mandate Adverse Inference Jury Charge—Insufficient Showing of Prejudice

The First Department determined the trial court did not give the right response to a question from the jury and reversed the intentional assault conviction.  The jury asked whether a person who intends to commit assault is guilty of intentional assault if the gun goes off accidentally.  The trial court answered “yes.”  The First Department determined the answer should have been “no” because the intent must be simultaneous with the act.  The First Department further determined that the loss of the police officer’s handwritten notes was a Brady/Rosario violation, but the defendant failed to demonstrate prejudice flowing from the loss:

We agree with defendant that the court’s response erroneously allowed the jury to find defendant guilty of intentional assault without finding that the intent element of that crime existed beyond a reasonable doubt. “It is a well-established rule of law that the intent to commit a crime must be present at the time the criminal act takes place” … . The intent element is not satisfied if, as in the jury’s hypothetical, the individual does not intend to pull the trigger at the moment the gun discharges. While those facts might have supported liability for a crime requiring a lesser mens rea than acting intentionally, defendant here was not charged with such a crime. Because the court’s response to the jury’s note incorrectly signaled that an accidental firing of the gun could support a conviction for intentional assault, the conviction on that count must be reversed. People v Lee, 2014 NY Slip Op 02507, 1st Dept 4-10-14

 

Failure to Give the Jury Instruction on Intoxication Required Reversal

The Second Department reversed defendant’s conviction, finding that the trial court erred by not giving the intoxication charge to the jury.  There was sufficient evidence defendant was so intoxicated at the time he committed the sexual offense, he could not form the requisite intent:

According to the defendant, during the night or early morning before he committed the instant offense, he finished drinking a “big” bottle of vodka. Then, within the hour leading up to the crime, he “kept pouring cognac” in his coffee and drinking it. The complainant observed the defendant drinking cognac shortly before he committed the crime, and observed that he “smelled a little bit like” alcohol. Additionally, the complainant’s mother knew that the defendant had a bottle of cognac in his possession because she had bought him a bottle as a gift.

The defendant further testified that, before he committed the acts constituting the instant offense, he “started to feel like out of [his] mind” and he did not have “control of the situation.” The complainant testified that, before the defendant committed the criminal acts against her, he said several “weird” things to her and acted in a “weird” manner. She opined that the defendant “wasn’t thinking” when he committed the instant offense.

With the foregoing in mind, we conclude that “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … .

Contrary to the People’s contention, intent is an element of criminal sexual act in the first degree, and ” the intent required is the intent to perform the prohibited act—i.e., the intent to forcibly compel another to engage in [oral or] anal sexual conduct”‘ … . People v Velcher, 2014 NY Slip Op 02464, 2nd Dept 4-9-14

 

Criteria for Submission of Lesser Included Offense Explained

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined the trial court properly refused to submit the lesser included offence of reckless manslaughter to the jury.  The victim died of a deep, forceful stab wound.  The pathologist testified the wound could not have been inflicted by waving a knife around, which is what the defendant claimed he did.  In explaining the criteria for submission of a lesser included offense, the Court of Appeals wrote:

A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37). Here, defendant asked the trial judge to charge second-degree manslaughter, which is a lesser included crime of second-degree intentional murder … . Second, the party making the request for a charge-down “must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense, but not the greater” (…Criminal Procedure Law § 300.50 [1]…). In assessing whether there is a “reasonable view of the evidence,” the proof must be looked at “in the light most favorable to the defendant” …, which requires awareness of “the jury’s right to accept some part of the evidence presented by either side and reject other parts of that proof” … . We have never, however, “countenance[d] selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor” … .

A “reasonable view of the evidence” does not mean, as defendant insists, that a trial court must charge reckless manslaughter as a lesser included offense of second-degree murder unless the record “completely excludes the possibility that the defendant acted recklessly.” People v Rivera, 2014 NY Slip Op 02379, CtApp 4-8-14

 

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Jury Should Have Been Instructed that It Could Determine Whether Witness Was an Accomplice and Assess the Witness’ Credibility Accordingly/Propriety of Jury Instruction Is Reviewable by the Court of Appeals as a Matter of Law

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the trial court committed reversible error by refusing defendant’s request for an “accomplice-in-fact” jury instruction.  The defendant’s conviction for manslaughter for participation in a beating death involving several assailants was based in large part upon the testimony of an eyewitness.  The Court of Appeals found that there was enough evidence of the eyewitness’ participation in the crime to warrant an instruction which would allow the jury to determine if the eyewitness was an accomplice and to assess the eyewitness’ credibility accordingly.  The Court explained the “accomplice as a matter of law” and “accomplice-in-fact” theories:

An accomplice is “a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]). Under our criminal law, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self interest, carries the potential for falsification to avoid prosecution … . * * *

Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement … . * * * In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve… . * * *

We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime …, or otherwise confirms participation or assisting in the charged crime … .

In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness’s participation or intent, such that “different inferences may reasonably be drawn” from the evidence as to the witness’s role as an accomplice … .  * * *  The propriety of a jury instruction is reviewable as a matter of law… .  People v Sage, 2014 NY Slip Op 02214, CtApp 4-1-14

 

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No Prejudice from Loss of Hand-Written Police Report (Rosario Material)/Trial Judge Did Not Abuse Discretion In Denying Request for Adverse Inference Jury Charge

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the trial judge did not abuse his discretion by failing to give the adverse inference charge with respect to a hand-written police report (“scratch 61”) which could not be located. The opinion explains the history of the sanctions appropriate when Rosario material is not turned over to the defense. With respect to nonwillful loss or destruction of Rosario material, the court explained the defendant must demonstrate prejudice, not demonstrated under the facts here:

…[O]ur rule is clear: nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice … . If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault … . The focus, though, is on the need to eliminate prejudice to the defendant … . Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. … The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction. Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61, as the defense attorneys and the judge all no doubt knew. A scratch 61 is a handwritten complaint report that [was] placed in a bin for typing, likely by a civilian employee of the police department. Defendants were provided the typewritten complaint report, which would have differed from the scratch 61 only if the typist made a mistake — i.e., the handwritten scratch 61 is not subject to editing before typing. People v Martinez…, 13, 14, CtApp 2-18-14

 

Defendant Entitled to Jury Charge on Extreme Emotional Disturbance Despite Lack of CPL 250.10 Notice

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined the defendant’s request for an “extreme emotional disturbance” jury charge should have been granted, in spite of the defendant’s withdrawing his CPL 250.10 notice re:  offering mental health evidence. At trial the defendant did not introduce any evidence of or cross-examine any witness about the defendant’s mental state. The evidence of defendant’s mental state was contained in defendant’s videotaped confession, which was presented at trial by the People. Because the CPL 250.10 notice concerns only mental-state evidence “offered” by the defendant, the absence of the notice did not preclude the extreme-emotional-disturbance jury charge:

A defendant is entitled to a jury charge on EED where the evidence, viewed in the light most favorable to the defendant, is sufficient for the jury “to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied” … . Accordingly, the trial court must grant the defendant's request for an EED charge if the jury could reasonably conclude from the evidence that, at the time of the homicide, the defendant “was affected by an extreme emotional disturbance, and that [the] disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it” … . This is true even if the “[d]efendant did not testify or otherwise present evidence” and the “request for an extreme emotional disturbance charge [i]s based entirely on proof elicited during the People's case” … . * * *

In its present form, CPL 250.10 requires notice when a defendant “inten[ds] to present psychiatric evidence” … , which the statute broadly defines as “[e]vidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of,” as relevant to this appeal, “extreme emotional disturbance” … . The Legislature did not specify what qualifies as mental health evidence “offered by the defendant”; however, to “offer evidence,” as that legal phrase is traditionally understood, means to put forth evidence and “demand its admission” (Black's Law Dictionary 1081 [6th ed 1991]; see Black's Law Dictionary [9th ed 2009], proffer [“To offer or tender (something, esp. evidence) for immediate acceptance”]). Additionally, the frequently used meaning of “present” is “to bring or introduce into the presence of someone” (MerriamWebster's Collegiate Dictionary 982 [11th ed 2003]). The Legislature's use of these “active” terms suggests that it intended the notice requirement to apply where the defendant affirmatively seeks to admit psychiatric evidence in support of an EED defense. People v Gonzalez, 12, CtApp 2-13-14

 

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