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Judge’s Refusal to Grant a One-Day Adjournment to Allow Defendant to Present a Witness (After the Judge Granted the People’s Request for a Missing-Witness Jury Instruction) Was Reversible Error

The First Department reversed defendant’s conviction because the judge refused to grant defendant a one-day adjournment to bring in a witness after granting the People’s request for a missing-witness jury instruction:

Having granted the People’s request for the [missing witness] instruction, the court should have granted defendant a short adjournment. A missing witness issue “must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy”… . Here, the moving party raised the issue after defendant’s testimony, when the issue became apparent. The court should have then accorded the nonmoving party the opportunity to avoid the missing witness charge by calling the witness. Although defendant was willing to call the witness, the court effectively rendered the witness unavailable, thus negating the availability requirement for a missing witness charge.

The court apparently denied the adjournment on the ground that defendant should have anticipated the missing witness issue. However, an adjournment to the next day would have been reasonable under the circumstances. People v Manzi, 2014 NY Slip Op 00280, 1st Dept 1-16-14

 

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Court’s Refusal to Give the Circumstantial Evidence Jury Instruction Required Reversal—No Direct Evidence Defendant Was Aware of Cocaine Hidden in Vehicle

The Court of Appeals reversed defendant’s conviction determining the trial court erred when it refused to charge the jury on circumstantial evidence.  The case was based upon the constructive possession of a brick of cocaine found in a hidden compartment in a vehicle.  Defendant was not the owner of the vehicle, was not driving the vehicle, and was not the target of police surveillance:

It is well established that a “defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence” … .  Constructive possession can be proven directly or circumstantially, and the necessity of a circumstantial evidence charge should be resolved on a case-by-case basis.  In this case, the proof connecting defendant to the drugs was wholly circumstantial.  Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine… . People v Santiago, 204, CtApp 11-26-13

 

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Accomplice Testimony Corroboration Insufficient Under Law Read to Jury

Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], the Court of Appeals held it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and the evidence of corroboration was not sufficient to support conviction:

Under the Hudson standard, the corroborating evidence was insufficient.  The evidence that was “independent” of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged.  This by itself did not tend “to connect the defendant with the commission” of the crimes (CPL 60.22 [1]).  People v Rodriguez, 169, CtApp 10-17-13

 

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Insufficient Evidence to Warrant Jury Charge on Intoxication Defense

The Court of Appeals affirmed defendant’s rape conviction finding that defendant presented insufficient evidence to warrant a jury charge on the intoxication defense:

Although intoxication is not a defense to a criminal offense, a defendant may offer evidence of intoxication whenever relevant to negate an element of the charged crime (see Penal Law § 15.25).  An intoxication charge should be issued when, viewing the evidence in a light most favorable to defendant …, “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to [an] element . . . on that basis” … .  In order to meet this “relatively low threshold,” defendant must present evidence “tending to corroborate his claim of intoxication, such as the number of drinks, the period of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state” … .

Here, the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication.  Defendant’s bare assertions concerning his intoxication were, by themselves, insufficient … .  Nor did his statement to police and the victim’s testimony that she smelled alcohol on his breath corroborate defendant’s claim.  While he may, indeed, have consumed alcohol prior to the events leading up to the crimes alleged, the evidence established that defendant’s conduct was purposeful.  He cut a hole in a screen to gain entry, instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police.  Given this evidence, the court correctly ruled an intoxication charge was not warranted. People v Beaty, 148, CtApp 10-17-13

 

Flawed Jury Instruction Re: Assisted Suicide Affirmative Defense to Murder Required New Trial

In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the defendant participated in some way in decedent’s death.  The central questions were whether defendant held the knife while the decedent leaned into it or whether defendant actively stabbed the decedent. The First Department noted that the prosecutor was not obligated to instruct the grand jury on the assisted-suicide affirmative defense because it is a mitigating defense (reducing the charge from murder) not a complete defense.  With respect to the elements of the assisted-suicide affirmative defense, the court wrote:

If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury’s verdict convicting defendant of murder was based on legally sufficient evidence and was not against the weight of the evidence … . The testimony of the People’s medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant’s claim that he merely held the knife.

But the jury was also free to accept defendant’s account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant’s version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant’s version supported the assisted suicide defense because it decided to give the charge … .

Under these circumstances, the portion of the court’s instruction that the assisted suicide defense is not made out if defendant “actively” caused the decedent’s death, along with the expansive definition of the word “active” given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word “active,” nor its antonym “passive,” appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. People v Minor, 2013 NY Slip Op 06444, First Dept 10-3-23

 

Jury Was Given Written Copies of Portions of Jury Instructions; Judge’s Responses to Subsequent Requests for Jury Instructions and Testimony Read-Back Required Reversal

The Third Department reversed defendant’s conviction on two grounds.  First, the trial judge’s response to the jury’s request for jury instructions (written copies of portions of the jury instructions had already been given to the jury) was not “meaningful” and required reversal in the absence of an objection.  And second, the read-back of testimony requested by the jury did not match the request and did not include crucial cross-examination:

As it was unclear from the jury’s note whether the jury simply was seeking the portion of the written charge previously promised by County Court or some other unidentified portion of the charge  (or even  the  charge  in its entirety), it was  incumbent upon County Court to explore this inquiry with the jury and clarify the  nature of the  jury’s request or, at the  very least, ascertain whether its response to the jury’s request was satisfactory….Although defense counsel did not object to the manner in which County Court  responded  to the  jury’s inquiry, County  Court  failed “to provide  a  meaningful response  to the  jury” and, in so  doing, failed to fulfill its “core responsibility” in this regard  ….    Accordingly, no objection was required to preserve this issue for appellate review… . * * *

Although CPL 310.30 affords a trial court a certain degree of latitude in responding to a jury request for additional information, the court’s response must be meaningful … . Additionally, “[a] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise”… .  People v Clark, 105237, 3rd Dept 7-3-13

 

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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

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Submission of Intentional and Depraved Indifference Murder to Jury in Conjunctive Rather than Alternative Okay

The Second Department determined the trial court did not err when it submitted intentional murder and depraved indifference murder to the jury in the conjunctive, rather than the alternative, because more than one potential victim was present:

The defendant, relying on People v Molina (79 AD3d 1371), contends that the submission of the counts of intentional murder (and attempted murder) and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, violated his right to due process. However, the defendant’s contention is without merit. “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims”…. To the extent that the Appellate Division, [3rd] Department, held differently in Molina, we disagree and decline to follow that holding. People v Dubarry, 2013 NY Slip Op 04354, 2nd Dept, 6-12-13

 

Conviction Reversed Because Uncharged Theory Considered by Jury

The Fourth Department reversed defendant’s conviction for criminal impersonation because the jury was allowed to consider a theory of prosecution that was not charged:

…[T]he court’s jury instructions with respect to the crime of criminal impersonation in the first degree permitted the jury to convict him upon a theory not charged in the indictment, and thus violated his right to be tried for only those crimes charged in the indictment, as limited by the bill of particulars …. …[W]e address defendant’s contention despite his failure to preserve it for our review … . The fifth count of the indictment alleged that defendant committed the crime of criminal impersonation when he pretended to be a police officer and, “in the course of such pretense, committed or attempted to commit the felony of [r]ape in the first degree.”    The court’s instructions, however, permitted the jury to convict defendant upon finding that he committed any felony in the course of pretending to be a police officer, thus allowing the jury to convict defendant upon a theory not charged in the indictment.  People v Williams, 340, 4th Dept, 6-7-13

 

No Need to Request Missing Witness Charge to Argue Absence of Witness to Jury

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the trial court erred in ruling defense counsel could not argue to the jury that a witness should have been called by the People because defense counsel did not request a missing witness charge (the error was, however, deemed harmless).  The complainant’s statement did not mention an anal penetration which was the subject of trial evidence. When asked why the incident was not mentioned in the statement, the complainant said the police officer taking the statement told her no judge would believe that happened.  The officer did not testify.  The Court of Appeals wrote:

In his summation, defense counsel argued that this part of the complainant’s testimony was incredible. “We’ve changed as a society,” he argued. “No police officer is going to come up there and say, ‘Oh, no one is going to believe you, this was your boyfriend.’ That’s not where we are today.” That part of his argument drew no objection. But the prosecutor did object when counsel added: “And if that’s, in fact, what that police officer said, then where was he, where was that police officer on the stand to say: You know what, I didn’t write it down. I didn’t think she was telling me the truth. He didn’t testify to that.” The trial court sustained the objection and directed the jury to disregard counsel’s comment. Counsel tried again to make the missing witness argument, with the same result.

After summations, defendant moved for a mistrial on the basis of this ruling. The court denied the motion, saying that counsel should have asked for a missing witness instruction if he wanted to make a missing witness argument… .

The courts below clearly erred in holding that defense counsel’s missing witness argument was improper. The trial court’s theory, that a request for a missing witness instruction is a prerequisite to a missing witness argument is, as the Appellate Division recognized, flatly contrary to what we said in Williams (5 NY3d at 734). The Appellate Division affirmed on the alternative grounds that the officer’s testimony may have been cumulative and defendant failed to make an offer of proof. This approach may have been impermissible under People v LaFontaine (92 NY2d 470 [1998]) and People v Concepcion (17 NY3d 192 [2011]).

Just before making the missing witness argument, counsel had attacked as incredible the complainant’s uncorroborated testimony as to what the officer said to her; confirmation of that testimony from the officer would not have been cumulative ….. And counsel had no obligation to make an offer of proof as a predicate for a missing witness argument. It is a premise of such an argument, as it is of a missing witness instruction, that the witness is in the control of the party that failed to call him … A party making such an argument, like one requesting such an instruction, “can hardly know what [the] witness knows or what the witness would say if called” … .  People v Thomas, No 108, CtApp, 6-4-13

 

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