People v. Ahmed

• Decision Date: 21 November 1985
• Citation: 496 N.Y.S.2d 984,487 N.E.2d 894,66 N.Y.2d 307
• Parties: , 487 N.E.2d 894 The PEOPLE of the State of New York, Respondent, v. Mahmood AHMED, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 984

496 N.Y.S.2d 984

66 N.Y.2d 307, 487 N.E.2d 894

The PEOPLE of the State of New York, Respondent, v. Mahmood AHMED, Appellant.

Court of Appeals of New York.

Nov. 21, 1985.

Robert Koppelman, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Donald J. Siewert and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The main issue presented on this appeal is whether the absence of the trial judge from the courtroom for a portion of the jury's deliberations, during which time they were supervised by the judge's law secretary with the defendant's consent, constitutes a denial of the right to jury trial. We conclude that it does, and therefore reverse the order of the Appellate Division, 106 A.D.2d 923, 484 N.Y.S.2d 1019 affirming the conviction and order a new trial.

The defendant was charged with conspiracy and criminal sale of a controlled substance in the first degree. At the trial, the People elicited legally sufficient proof to support the jury's verdict of guilty of both counts. However, on the second day of jury deliberations, the trial judge reported that he had "a very bad throat and very bad cold". He remained in the courtroom, but, with the consent of the parties, the court reporter and the judge's law secretary reread portions of the testimony and the charge in response to requests from the jury. That afternoon, the jury announced that they had found the defendant guilty of conspiracy, but the trial judge did not accept the verdict.

The morning of the third day of deliberations, the trial judge again appeared, but it was his law secretary who reread the instructions on reasonable doubt with the parties' consent. The judge then left. That afternoon, in chambers, the law secretary noted that he had received a number of notes from the jury, had conferred with the trial judge and would answer the first of the notes, court exhibit 14. After a discussion of another note, court exhibit 13, the law secretary indicated that he had also received two other notes, court exhibits 15 and 16, which he had not discussed with the trial judge.

Both counsel consented to the answering of court exhibit 14 by the law secretary, which was done. Another note, court exhibit 17, was then answered in a similar fashion, after which the jury was discharged for lunch. When they returned, the law secretary related to counsel the trial judge's response to an application that had been made to him by counsel over the telephone and recorded the fact that both counsel had agreed to the procedure. Sometime thereafter, the jury reached a verdict of guilty on both counts, apparently without the benefit of having court exhibits 15 and 16 considered, ruled on and answered by the trial judge. Those notes had requested the rereading of considerable portions of the testimony and production of the laboratory report on the package containing in part the heroin defendant was alleged to have sold.

We find that the absence of the trial judge, and the delegation of some of his duties to his law secretary during a part of the jury's deliberations, deprived the defendant of his right to a trial by jury, an integral component of which is the supervision of a judge. That defense counsel consented to this arrangement does not constitute either a failure to preserve a question of law for our review or a waiver. Generally, a defendant may not present a question of law to this court unless he has preserved it for review by timely objection in the trial court (CPL 470.35[1]; 470.05[2]; People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281). However, we have long recognized that certain errors need not be preserved, and, even if consented to, they may still present a question of law (e.g., Cancemi v. People, 18 N.Y. 128, 137). More recently, such errors have been classified as those "that would affect the organization of the court or the mode of proceedings prescribed by law" (People v. Patterson, 39 N.Y.2d at p. 295, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra ). They have been held to include trial before fewer than 12 jurors in a criminal case (Cancemi v. People, supra ), trial before a court not of competent jurisdiction (People v. Bradner, 107 N.Y. 1, 4-5, 13 N.E. 87), trial for an "infamous crime," even where purportedly allowed by statute, upon an information (People ex rel. Battista v. Christian, 249 N.Y. 314, 164 N.E. 111), a court's comment on the defendant's failure to testify (People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846), addition of a new count to an indictment after trial (People v. Miles, 289 N.Y. 360, 45 N.E.2d 910), an improper instruction on the burden of persuasion (People v. Patterson, supra ), violation of the right to counsel (People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786; People v. Ermo, 47 N.Y.2d 863, 419 N.Y.S.2d 65, 392 N.E.2d 1248) and violation of the ban on double jeopardy (People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134). The failure of a judge to retain control of deliberations, because of its impact on the constitutional guarantee of trial by jury, also implicates the organization of the court or the mode of proceedings prescribed by law (Cancemi v. People, supra ), and such failure presents a question of law for our review even absent timely objection.

That we may review this contention is not the only obstacle to our consideration of the merits of defendant's claim, for the People contend that, by his counsel's consent to the procedure employed, he also waived whatever right he may have had to the presence of the trial judge during deliberations. Waiver and preservation are separate concepts (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656), although they are often "inextricably intertwined" (People v. Michael, 48 N.Y.2d, at p. 5, n. 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134, supra ). Waiver connotes the intentional relinquishment or abandonment of a known right (Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461). To insure that a waiver of the right to trial by jury meets this requirement, our statute provides, consistent with constitutional mandate (N.Y. Const., art. I, § 2), that it "must be in writing and must be signed by the defendant in person in open court in the presence of the court, and with the approval of the court" (CPL 320.10[2]; see also, 3 ABA Standards for Criminal Justice, Trial by Jury, Standard 15-1.2[b] and commentary). The defendant signed no such waiver in this case.

Reaching the merits, we conclude that the absence of the trial judge, and the allowing his law secretary to discharge some of his duties, though motivated by a commendable desire to avoid delay of the proceedings, deprived defendant of his right to a proper trial...