People v. Buxton

• Decision Date: 02 August 1993
• Parties: The PEOPLE, etc., Respondent, v. William BUXTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 132

601 N.Y.S.2d 132

192 A.D.2d 289

The PEOPLE, etc., Respondent, v. William BUXTON, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 2, 1993.

Philip L. Weinstein, New York City (Michael Murray, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Seth M. Lieberman, and Victor Barall, of counsel), for respondent.

Before BRACKEN, J.P., and BALLETTA, ROSENBLATT and MILLER, JJ.

BRACKEN, Justice Presiding.

A trial judge may properly authorize a court officer to speak to a deliberating jury when the subject of the communication is "administerial" (People v. Bonaparte, 78 N.Y.2d 26, 31, 571 N.Y.S.2d 574 N.E.2d 1027, citing CPL 310.10). However, a trial judge who authorizes a court officer to communicate with a jury on matters which are not administerial not only errs, but commits an error so grave as to warrant reversal even though the defendant's attorney might have consented to the occurrence of the error (see, People v. Torres, 72 N.Y.2d 1007, 534 N.Y.S.2d 914, 531 N.E.2d 635; People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894). Our resolution of the arguments raised by the defendant on this appeal hinges on whether certain communications between a court officer and a deliberating jury may properly be characterized as administerial. We hold that they may, and we therefore affirm.

The evidence produced by the prosecution established, beyond a reasonable doubt, that on March 16, 1990, inside a stairwell of a building on Rockaway Parkway in Brooklyn, the defendant sodomized a 13-year-old girl. The victim was in fact subjected to repeated acts of rape and sodomy committed by the defendant and by his two codefendants, Daniel Polhill and George Hyacinthe. The defendant was convicted, after a jury trial, of two counts of sodomy in the first degree, and sentenced to two concurrent terms of 4 to 12 years imprisonment. On appeal, the defendant argues that he is entitled to a new trial because of the method by which the trial court, with the express or tacit consent of defense counsel, chose to communicate with a reportedly deadlocked jury.

The jury commenced deliberations on March 5, 1991, and retired that evening without reaching a verdict. After resuming deliberations the following day, the jury sent the court a note stating as follows:

"The jury has reached a unanimous verdict on two counts, but is hopelessly deadlocked on the four others. We would like your guidance as to what we should do as it pertains to the law".

In the presence of the prosecutor, the defendants, and their attorneys, the court stated:

"Now, since this note is somewhat ambiguous, I've conferred with defense counsel regarding this and I want to be sure I know exactly what the note means before we proceed.

"I propose to send in a note to the jury which reads as follows: 'Dear Madam Forewoman and members of the jury; Have you reached a verdict on all three defendants on two counts? Please answer yes or no' ".

After the parties agreed to this procedure, the court instructed the court officer who was to deliver the note that he was to "direct the jurors to return this note with the answer on it".

After the jury responded in the affirmative (ie: that it had reached a verdict as to all three defendants on two counts), the court observed that it had two options. The court's first alternative was to instruct the jury to continue deliberating until reaching a verdict on all counts. The second alternative was to accept a partial verdict. The court observed that it could "bring the jury in and take a verdict as to those two counts that they agree to". The court added: "[a]fter we hear what the verdict is, [we will] have a conference and decide whether or not the jury should be discharged, or should be directed to continue deliberating on the four remaining counts that they have not yet agreed upon".

The court suggested that the latter option was the "right option" and, upon inquiring of all parties, ascertained that neither the prosecutor nor the defendants had any objection to proceeding in the manner the court had proposed. The court continued:

"Then the court will direct the court officer to instruct the jury to complete filling out the verdict sheet as to the two counts they have a verdict on, check off those things on the verdict sheet, but not to mark the other counts at all, and then to bring the jury into the courtroom when the verdict sheet had been filled out as to those two counts".

In accordance with the foregoing procedure, the jury returned to the courtroom and delivered its partial verdict, finding the defendant and the codefendants each guilty of two counts of sodomy in the first degree.

The defendant now argues that the court erred in directing the court officer to deliver the "Dear Madam Forewoman" note to the jury. Instead, the defendant argues, the jury should have been brought back into the courtroom and the contents of that note read directly to them by the trial judge. The defendant also argues that after having received an affirmative response to this note, the court erred in directing a court officer to advise the jurors as to how the verdict sheet should be completed. Instead, the defendant argues, the trial judge should have delivered this "instruction" to the jury in person.

There are two distinct but complementary components to the defendant's argument on appeal. First, his argument is one that might be described as an "improper delegation" argument. He argues, in other words, that the messages conveyed to the jury by the court officer should instead have been conveyed by the trial judge himself. Second, the defendant's argument might also be described as a "right to presence" argument. He asserts, in other words, that his right to be present at all material stages of the trial was violated inasmuch as the court officer's communications with the jury were made in his absence. Both the "improper delegation" aspect (see, People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027, supra; People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894, supra ), and the "right to presence" aspect (see, People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836; People v. Mehmedi, 69 N.Y.2d 759, 513 N.Y.S.2d 100, 505 N.E.2d 610) of the defendant's argument are reviewable as questions of law even in the absence of any objection.

The two components of the defendant's argument are reflected in the terms of two statutes. The first statute, CPL 310.10, provides, among other things, that a deliberating jury must "be continuously kept together under the supervision of a court officer". CPL 310.10 also provides that "[e]xcept when so authorized by the court or when performing administerial duties with respect to the jurors, such court officers * * * may not speak or communicate with them" (emphasis added). Read literally, this statute would seem to authorize trial judges to communicate with deliberating jurors indirectly, through a court officer, even with respect to non-administerial matters. However, because this statute must be considered in connection with those statutory (see, CPL 310.30) and constitutional (N.Y. Const.Art. I, § 6) provisions which guarantee a defendant's right to be present during the delivery of jury instructions (see, Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674; People v. Ciaccio, 47 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347; People ex. rel. Bartlam v. Murphy, 9 N.Y.2d 550, 553, 215 N.Y.S.2d 753, 175 N.E.2d 336; People v. Tyler, 14 A.D.2d 609, 221 N.Y.S.2d 804; N.Y. Const.Art. I, § 6), this literal construction of CPL 310.10 is not possible.

The second statutory foundation for the defendant's argument is to be found in the terms of CPL 310.30. This statute states, in relevant part, that a deliberating jury may request that the trial court provide "further instruction or information with respect to the law * * * or with respect to any other [pertinent] matter". CPL 310.30 further provides that, in the event such a request is made, the trial court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information" (emphasis added). It is appropriate to note, at this point, that a literal construction of this statute might lead to the conclusion that the defendant had the right to be present during the communication between the court officer and the jury in this case, because this communication was responsive to the jury's request for "guidance as to what [they] should do as it pertains to the law". However, because the only "instruction or information" given by the court amounted, in essence, to a direction to cease deliberations, we find that the caselaw, to be examined below, supports the conclusion that the defendant had no right to be present during this communication.

The cases which define the scope of a court officer's supervising role in jury deliberations (see, People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027, supra; People v. Torres, 72 N.Y.2d 1007, 534 N.Y.S.2d 914, 531 N.E.2d 635, supra ) are in harmony with those cases which define the scope of a defendant's right to be present during all "material stages" of a trial (see, People v. Lykes, 81 N.Y.2d 767, 593 N.Y.S.2d 779, 609 N.E.2d 132; People v. Bonaparte, supra; People v. Harris, 76 N.Y.2d 810, 559 N.Y.S.2d 966, 559 N.E.2d 660). Where a court officer's communication relates to an administerial matter so as to fall within the officer's supervisory role (see, CPL 310.10), it follows that the defendant's absence during such communication does not constitute a violation of the defendant's right to be present. Thus, those cases which address the scope of the defendant's right to be present when a jury receives a communication originating from...