People v. Bollander
| Decision Date | 11 December 1989 |
| Citation | 156 A.D.2d 456,549 N.Y.S.2d 27 |
| Parties | The PEOPLE, etc., Respondent, v. William BOLLANDER, Thomas Farino, and James Povinelli, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Spiros A. Tsimbinos, Kew Gardens, for appellant Thomas Farino.
Todd Greenberg, Forest Hills (Spiros A. Tsimbinos, of counsel), for appellant William Bollander.
Bert E. Koehler, Bayside (Spiros A. Tsimbinos, of counsel), for appellant James Povinelli.
Helman R. Brook, Deputy Atty. Gen., New York City (Matthew S. Greenberg and Hillel Hoffman, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, KUNZEMAN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeals by the defendants from three judgments (one as to each of them) of the Supreme Court, Queens County (Demakos, J.), all rendered September 19, 1988, convicting them of riot in the second degree, upon jury verdicts, and imposing sentences.
ORDERED that the judgments are reversed, on the law, and the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322); the facts have been considered and are determined to have been established; it is further,
ORDERED that upon service upon them of a copy of this decision and order, with notice of entry, each of the defendants is directed to appear, forthwith, before the Supreme Court, Queens County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant so appearing on his own recognizance, or fixing bail, or committing him to the custody of the Commissioner of the New York City Department of Correction pending resubmission of the case to the Grand Jury and the Grand Jury's disposition thereof (cf., CPL 210.45[9]. Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a Grand Jury, (b) arraignment of the defendant upon an indictment filed as a result of a resubmission of the case to a Grand Jury, (c) the filing with the court of a Grand Jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Queens County, to a designated subsequent date if such be necessary to accord the People reasonable opportunity to resubmit the case to a Grand Jury.
At the conclusion of its oral instructions but prior to the commencement of deliberations, the trial court, over strenuous defense objections, furnished the jury with verdict sheets containing not only the crimes charged and the possible verdicts thereon (see, CPL 310.20[2], but also certain elements of those charges. Parenthetical notations to the charges of riot in the first degree read "simultaneously with ten or more persons * * * physical injury", and that which accompanied the lesser included offense of riot in the second degree stated "simultaneously with four or more other persons". The risk of submitting a verdict sheet listing all or part of the statutory elements of the crimes is that the jury may "perceive the writing as embodying * * * more important instructions, inviting greater attention to the principles that are repeated in writing than those simply recited orally." (People v. Owens, 69 N.Y.2d 585, 591, 516 N.Y.S.2d 619, 509 N.E.2d 314; see, People v. Brooks, 70 N.Y.2d 896, 898, 524 N.Y.S.2d 382, 519 N.E.2d 293). The precise concerns regarding the danger and prejudice inherent in such a submission were implicated at bar, where the defendants challenged the evidence not only with respect to those elements emphasized in the verdict sheet, but also those regarding the nature of their actions and the gravity of the consequences thereof which were omitted, i.e., they claimed that they had not engaged in "tumultuous and violent conduct and thereby intentionally or recklessly caus[e] or creat[e] a grave risk of causing public alarm" (Penal Law §§ 240.05, 240.06). It is by now well-established that the submission of such a verdict sheet over defense objection constitutes reversible error which cannot be deemed harmless (People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33; People v. Taylor, 154 A.D.2d 634, 546 N.Y.S.2d 642; People v. Jackson, 148 A.D.2d 750, 539 N.Y.S.2d 482; People v. Gillispie, 144 A.D.2d 482, 533 N.Y.S.2d 981), and, hence, reversal is mandated.
The trial court committed further error in refusing the defense request to instruct the jury on disorderly conduct as defined by Penal...
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