People v. Allan

• Decision Date: 22 April 1993
• Citation: 596 N.Y.S.2d 793,192 A.D.2d 433
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald ALLAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 793

596 N.Y.S.2d 793

192 A.D.2d 433

The PEOPLE of the State of New York, Respondent, v. Donald ALLAN, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

April 22, 1993.

Before CARRO, J.P., and ROSENBERGER, ELLERIN, KUPFERMAN and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered January 8, 1991, convicting defendant, after a jury trial, of grand larceny in the fourth degree (Penal Law § 155.30[5], and sentencing him, as a predicate felony offender, to an indeterminate term of imprisonment of from 2 to 4 years, is reversed, on the law, and as a matter of discretion in the interest of justice, and a new trial is ordered.

By Indictment No. 6172/90, filed June 6, 1990, defendant was charged with grand larceny in the fourth degree. The charges stemmed from a May 16, 1990 incident in which defendant was alleged to have diverted the attention of a taxi cab driver who had stopped for a red light, while his co-defendant, Charles Massey, snatched $70 from the driver's breast pocket. Following a jury trial, defendant was found guilty and sentenced as aforenoted.

On appeal, defendant asserts that the trial court erred in several of its instructions to the jury. We agree. Once again we must advise this trial judge, whose charges to the jury have resulted in several reversals, that he can "best avoid error by delivering the standard charge" (People v. Stinson, 186 A.D.2d 23, 24-25, 587 N.Y.S.2d 631) and that "a Judge should think long and hard about the wisdom of departing from the standard charge on such elementary matters as reasonable doubt, burden of proof and a defendant's decision not to take the stand" (People v. Nunez, 182 A.D.2d 527, 528, 583 N.Y.S.2d 916 [Sullivan, J., concurring], lv. denied 80 N.Y.2d 836, 587 N.Y.S.2d 920, 600 N.E.2d 647).

First, it was error for the judge to have charged the jury, in the absence of defendant's request, with respect to defendant's election not to testify. CPL 300.10(2) provides that, "Upon request of a defendant who did not testify in his own behalf, but not otherwise, the court must state that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn". (Emphasis added). Moreover, the charge given here impermissibly emphasized the defendant's decision not to take the stand, a practice that has repeatedly required reversal of this trial court (see, e.g., People v. Stinson, supra; People v. Wright, 174 A.D.2d 522, 571 N.Y.S.2d 470; People v. Garcia, 160 A.D.2d 354, 553 N.Y.S.2d 416, appeal dismissed, 76 N.Y.2d 934, 563 N.Y.S.2d 59, 564 N.E.2d 669). Finally, despite its expanded language, the charge never, in fact, instructed the jury that it could not draw any adverse inference from defendant's decision not to take the stand. ¹

Although, as respondent notes, defense counsel did not preserve this claim as a matter of law (see, CPL 470.05[2], we are compelled, in light of the cumulative effect of all the errors in the case, to reach it in the interest of justice (see, People v. McCain, 177 A.D.2d 513, 514, 576 N.Y.S.2d 146).

We find further infirmity in the trial court's instructions on the presumption of innocence and reasonable doubt. In People v. Stinson, supra, our reversal was necessitated in part because the charge on presumption of innocence made references to "equal inferences" in a manner permitting the jury to conclude that, if the inferences were not equal, there was sufficient evidence to convict (supra, 186 A.D.2d at 25, 587 N.Y.S.2d at 633; see also, People v. Fox, 72 A.D.2d 146, 147-148, 423 N.Y.S.2d 171; People v. Smith, 121 A.D.2d 411, 412, 502 N.Y.S.2d 810). In nearly identical language to that utilized in Stinson, supra, the trial court conveyed that improper instruction to the jurors in the case at bar:

Where there are two inferences that you can draw, they're equal inferences, two equal conclusions that you can draw, one that leads you to the conclusion that the defendant is guilty and another conclusion that leads you to the conclusion that the defendant is not guilty, under those circumstances of equal inferences, the defendant, because he's presumed innocent, is entitled to the inference to the conclusion that he's not guilty.

However, if there are two unequal inferences that can be drawn and they're not equal, the defendant is not necessarily entitled to that conclusion in his favor, because they're not equal inferences that can be drawn.

This error was compounded when the court subsequently instructed the jury that the "words, 'guilty' or 'not guilty' should be equally as easy for you to recite".

In another egregious error, the court instructed the jury that "if you have a doubt" but "cannot express" either the doubt or a reason therefor, "then the prosecutor has proven her case". As recently held in People v. Antommarchi, 80 N.Y.2d 247, 252, 590 N.Y.S.2d 33, 604 N.E.2d 95, "[a]n instruction that requires jurors to supply concrete reasons 'based upon the evidence' for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes", and thus constitutes impermissible burden shifting.

Finally, the trial court's instruction that the jurors could take into account a witness's job, education, and status in the community in assessing credibility diluted its charge that the testimony of a police officer should be evaluated in the same way as that of any other witness. Again, an error of this nature has occasioned prior reversal of this trial judge (see, People v. Rawlins, 166 A.D.2d 64, 66, 569 N.Y.S.2d 635).

All concur except KUPFERMAN, J., who dissents in a memorandum as follows:

KUPFERMAN, Justice (dissenting).

I would affirm the judgment, convicting defendant, after a jury trial, of grand larceny in the fourth degree and sentencing him as a predicate felony offender to an indeterminate term of from two to four years imprisonment.

While, in some respects, the trial court's jury charge was overly expansive and the more advisable practice would have been for the court to have given the charge as set forth in the Criminal Jury Instructions (see, People v. Stinson, 186 A.D.2d 23, 587 N.Y.S.2d 631; People v. Nunez, 182 A.D.2d 527, 583 N.Y.S.2d 916, lv. denied 80 N.Y.2d 836, 587 N.Y.S.2d 920, 600 N.E.2d 647; People v. Jones, 181 A.D.2d 463, 581 N.Y.S.2d 19), reversal of defendant's conviction is unwarranted.

Although defense counsel did not specifically request that the court charge the jury with respect to defendant's failure to testify, the court, as it has in earlier cases, nevertheless charged the jury, in pertinent part, that, by not taking the stand, defendant essentially told them that the burden is on the prosecutor and "I have no responsibility nor duty to take the stand and to be a witness. By that I tell you I believe I'm not guilty and let the prosecutor prove her case against me. And indeed, your duty is not to hold that against him as he elected not to testify because that is his absolute right."

Defendant contends that the court erred by giving a charge where none was requested contrary to CPL 300.10(2) and by giving a lengthy charge which unnecessarily drew attention to his silence in a "manner which belittled that constitutional choice." Both briefs extensively discuss the similarities and differences between the charge given here and previous charges by this particular court, which have been the subject of criticism as well as reversal. It appears, however, after reviewing these prior appeals, that, due to the lack of objection and the similarity to the charges which have been upheld and given counsel's summation reference to not testifying, the challenged instruction, while possibly unfortunate, does not require reversal.

Where substantially similar language has been used and no objection registered to the unrequested charge, reversible error has not been found (People v. Nunez, supra; People v. Lattimore, 174 A.D.2d 352 570 N.Y.S.2d 559, lv. denied 79 N.Y.2d 859, 580 N.Y.S.2d 731...