People v. Becoats

• Decision Date: 20 October 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Corey E. BECOATS, Appellant.The People of the State of New York, Respondent, v. Jason L. Wright, Appellant.
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 643

2011 N.Y. Slip Op. 07306

934 N.Y.S.2d 737

958 N.E.2d 865

The PEOPLE of the State of New York, Respondent,

v.Corey E. BECOATS, Appellant.The People of the State of New York, Respondent,

v.Jason L. Wright, Appellant.

Court of Appeals of New York.

Oct. 20, 2011.

Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson and Brian Shiffrin of counsel), and Kristin Splain, Conflict Defender, for appellant in the first above-entitled action.

Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent in the first above-entitled action.

Jonathan I. Edelstein, New York City, for appellant in the second above-entitled action.Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

SMITH, J.

Defendants, Corey Becoats and Jason Wright, appeal their convictions for manslaughter and robbery. We reject most of their arguments, but conclude that Wright is entitled to a new trial because of an error in excluding evidence he tried to present in his defense.

I

The People sought to prove that defendants, acting with a third man, Sherrod Carter (who had not been apprehended at the time of the trial), beat Hayden Spears to death, and forcibly stole property from him. Two witnesses described an incident in which the three attackers first argued with Spears in the street, and then began to hit him with their fists, a stick or hammer, and a gun that Wright removed from the victim's pants. Spears fled down the street, bleeding and staggering, but the three caught up with him and resumed the beating, Becoats now using a broken bottle. The fracas moved into a nearby field, where the witnesses lost sight of it. Later, the attackers came back out of the field; Wright was carrying a pair of sneakers. Spears was found near death in the field. He died of blunt force trauma.

The two witnesses who claimed to have seen the attack were Lorraine Small and Nicholas Carter, Sherrod Carter's brother. Both had significant criminal records. There was forensic evidence consistent with the witnesses' accounts of the event, but there was no evidence of the attackers' identity except the eyewitness testimony.

A jury convicted both defendants of second degree (depraved indifference) murder and first degree robbery. The Appellate Division modified by reducing the murder convictions to manslaughter in the second degree, and otherwise affirmed ( People v. Wright, 63 A.D.3d 1700, 882 N.Y.S.2d 605 [4th Dept.2009]; People v. Becoats, 71 A.D.3d 1578, 897 N.Y.S.2d 820 [4th Dept.2010] ). A Judge of this Court granted defendants leave to appeal (15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010], 15 N.Y.3d 802, 908 N.Y.S.2d 161, 934 N.E.2d 895 [2010] ). We now affirm as to Becoats, but reverse and order a new trial as to Wright.

II

The indictment included a single count of robbery in the first degree, asserting that defendants “forcibly stole property, to wit, a gun and/or a pair of sneakers from Hayden Spears” and caused serious physical injury to Spears. Becoats and Wright claim that this count was duplicitous—i.e., that the robbery of the gun and the robbery of the sneakers were separate crimes that should have been charged in separate counts. They did not make this argument in the trial court, however, and we hold that we may not consider it.

The general rule, of course, is that this Court does not consider claims of error not preserved by appropriate objection in the court of first instance (CPL 470.05, 470.35; People v. Patterson, 39 N.Y.2d 288, 294–295, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976] [citations omitted] ). Defendants seek to bring this case within the narrow exception for so-called “mode of proceedings” errors, but the exception does not apply here.

We said in Patterson: “A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings pr[e]scribed by law” (39 N.Y.2d at 295, 383 N.Y.S.2d 573, 347 N.E.2d 898). We added:

“the purpose of this narrow, historical exception is to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute. Where the procedure adopted by the court below is at a basic variance with the mandate of law, the entire trial is irreparably tainted” ( id. at 295–296, 383 N.Y.S.2d 573, 347 N.E.2d 898).

Not every procedural misstep in a criminal case is a mode of proceedings error. That term is reserved for the most fundamental flaws. Examples are the shifting of the burden of proof from prosecution to defense ( id. at 296, 383 N.Y.S.2d 573, 347 N.E.2d 898), and the delegation of the trial judge's function to his or her law secretary ( People v. Ahmed, 66 N.Y.2d 307, 312, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985] ). Mistakenly charging more than one crime in one count of an indictment is not a fundamental error in this sense. A defendant who wants the charges separated must seek that relief at trial.

To allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse. Defendants accused of multiple offenses may not much care how many counts they face, or may prefer to face one count (and thus one conviction) rather than several. Under the rule defendants here seek, it would be possible for them to make that choice at trial by letting a duplicitous indictment stand without objection, and make the opposite choice on appeal; they might thus obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it. To expand the definition of “mode of proceedings” error too freely would create many such anomalous results.

We therefore do not consider defendants' argument that the indictment here was duplicitous. We express no opinion about the argument's merit.

III

Defendants complain of the trial court's refusal to grant an adjournment, on the eve of trial, to allow the defense to obtain the testimony of a witness in federal custody. We hold that the court did not abuse its discretion.

The trial was scheduled to begin on September 12, 2005. On August 23, 20 days before trial, Becoats's counsel received a letter from the prosecutor dated August 19. The letter said that the prosecution had recently learned of, and interviewed, a witness named Michael Bishop, a federal prisoner. Bishop, according to the letter, had told prosecutors on August 17 “that he was present for a portion of the beating of Hayden Spears. He stated that he observed Sherrod Carter, Nick Carter and Jason Wright take place [ sic ] in the beating. He also stated that he did not see Corey Becoats when he was present at the scene.”

Becoats's counsel was on trial in another case when the prosecutor's letter arrived. He responded on August 29 by asking where Bishop was located, and who his lawyer was. The prosecutor replied on August 31, identifying Bishop's lawyer and the federal prison in Ohio where Bishop was being held.

Becoats's lawyer, according to his submissions below, “immediately contacted” Bishop's lawyer and then “followed up” by making contact with the United States Marshal's office. He was advised, he told the court, “that no guarantee could be made that the prisoner would be produced in a state court proceeding” and that in any event “the U.S. Marshal's office had to be given at least 30 days notice” if there was to be a “remote possibility” that Bishop would be made available.

The exact date of the conversation between Becoats's lawyer and the Marshal's office is not in the record. The lawyer apparently did nothing as a result of the conversation until September 9—the last business day before the trial—and even then he did not seek an order or begin any other proceeding to obtain Bishop's testimony, either at trial or by deposition. Instead, he filed papers with the trial court describing the sequence of events, asserting that the prosecution had “dragged its feet in providing the information to the defense,” and asking for “an adjournment in the proceeding so that [Bishop] can be secured at trial.” The adjournment was not granted.

We cannot say that the trial court abused its discretion in denying the adjournment. It is true that the witness's testimony, as described by the prosecutor, seemed very significant, and it is also true that the People could have acted more speedily than they did. It is not clear why, having interviewed Bishop on August 17, the People waited two days and then sent a letter to defense counsel by regular mail. If defense counsel had acted with reasonable diligence after receiving that letter, and had nevertheless been unable to obtain Bishop's testimony in time for trial, it might well have been an abuse of discretion for the court to deny an adjournment ( see People v. Foy, 32 N.Y.2d 473, 346 N.Y.S.2d 245, 299 N.E.2d 664 [1973] ).

The trial court was justified in finding, however, that defense counsel did not act with reasonable diligence. Even assuming that the delay from August 23 to August 29 is excused by counsel's involvement in another trial, there were almost two weeks between August 31 (when counsel got a response to his August 29 inquiry) and the trial date in which counsel could have sought, and perhaps obtained, an order requiring Bishop's testimony. Counsel chose not to do so, but instead to complain about the People's conduct and ask for an adjournment. It is unclear from the record whether counsel really wanted Bishop's testimony, or simply wanted delay, or was hoping to create an issue for appeal. It was for the trial court to assess whether, under all the circumstances, an adjournment in the hope of obtaining Bishop's testimony was justified, and we see no basis in the record to second-guess the trial court's conclusion.

The dissent acknowledges doubt about whether counsel “did all that he...