People v. Carney

• Decision Date: 28 January 1980
• Citation: 73 A.D.2d 972,424 N.Y.S.2d 243
• Parties: The PEOPLE, etc., Respondent, v. Thomas CARNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 243

424 N.Y.S.2d 243

73 A.D.2d 972

The PEOPLE, etc., Respondent, v. Thomas CARNEY, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 28, 1980.

Wayne I. Harris, Roslyn Heights, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Norman S. Heller, Brooklyn, of counsel), for respondent.

Before MOLLEN, P. J., and DAMIANI, MANGANO and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 7, 1977, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.

The principal issue in the trial of this case was the identity of the man who robbed the night manager of a MacDonald's restaurant at gunpoint while she was making a night bank deposit. Defendant was arrested more than three months after the perpetration of the crime when he patronized the restaurant whose receipts had been taken. The manager identified him as the thief and the police were called.

Despite the fact that the evidence presented a substantial question of fact as to identity, the court gave a "bare bones" charge on the law, without in any way relating it to the facts. As we said in People v. Mabry (58 A.D.2d 897, 397 N.Y.S.2d 7), such a charge "cannot be sanctioned or approved, regardless of the strength of the proof adduced against the defendant". The failure of the trial court to explain the relationship of the applicable principles of law to the factual issues in this case requires a reversal (see People v. Rivera, 60 A.D.2d 852, 400 N.Y.S.2d 583).

We have considered defendant's other contentions and find them to be without merit.

MARTUSCELLO, Justice, dissents and votes to affirm the judgment of conviction, with the following memorandum:

I disagree with the argument advanced by the majority based on this court's decision in People v. Mabry (58 A.D.2d 897, 397 N.Y.S.2d 7). The trial court's charge in this uncomplicated criminal trial complied with the requirements of subdivision 2 of section 300.10 of the Criminal Procedure Law, as interpreted by the Court of Appeals in People v. Culhane (45 N.Y.2d 757, 408 N.Y.S.2d 489, 380 N.E.2d 315, cert. den. 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706).

Subdivision 2 of section 300.10 reads, in pertinent part:

"In its charge, the court must state the fundamental legal principles applicable * * * and, so far as practicable, Explain the application of the law to the facts, but it Need not marshall or refer to the evidence to any greater extent than is Necessary for such explanation " (emphasis added).

According to the Staff Comment to proposed subdivision 2 of section 155.10 of the Criminal Procedure Law (enacted as CPL 300.10 (subd. 2) by L.1970, ch. 996, § 1, eff. Sept. 1, 1971) (p. 222)

"most trial judges, in order to be on the safe side, invariably do present a thorough summary of the evidence and sometimes in exhaustive and unnecessary detail. Upon the theory that this time consuming practice frequently serves no useful purpose, the proposed section offers the more flexible rule that the court must, so far as practicable, explain the application of the law to the facts, but it need not marshall or refer to the evidence to any greater extent than is necessary for explanation."

The Court of Appeals interpreted the mandate of this subdivision as imposing upon the trial court "an obligation to marshall or refer to the evidence * * * only to the extent necessary to explain the application of the law to the facts * * * The critical issue on appellate review is whether the deficiency, if any, was such as to deny defendant a fair trial" (People v. Culhane, 45 N.Y.2d 757, 758, 408 N.Y.S.2d 489, 491, 380 N.E.2d 315, 316-317, cert. den. 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706 Supra ).

An appellate court, in reviewing a charge, must determine whether the trial court's explanation of how to apply the law to the facts was adequate in all aspects, including whether the explanation was adequate in the particular aspect of referring to evidence, or, in some trials, marshalling the evidence (i. e., recapitulating it in a fashion demonstrating logical relationships to the parties' arguments and principles of law).

The cases have expressed these requirements in various words over the years, though the single lesson to emerge is that the charge must sufficiently marshall both the Evidence at the trial and the Arguments of the parties to the extent that, at a minimum, the jury can clearly understand to what arguments the evidence is Material and to what extent (by rule of law or common experience) the evidence is Relevant and credible. In short, the charge instructs the jury how to frame the issues and find the facts given a quantity of conflicting evidence and arguments and a few conclusory legal rules.

Since marshalling of the evidence is but One aspect of the explanation of how to relate the law to the facts, it is Not always necessary to an adequate explanation, particularly in simple cases (People v. Harris, 69 A.D.2d 843, 415 N.Y.S.2d 72; People v. Williamson, 51 A.D.2d 843, 380 N.Y.S.2d 778), or in cases involving a large number of witnesses (People v. Black, 18 A.D.2d 719, 236 N.Y.S.2d 240, cert. den. 375 U.S. 898, 84 S.Ct. 177, 11 L.Ed.2d 127), or as to issues of corroborative evidence (People v. Goldfeld, 60 A.D.2d 1, 400 N.Y.S.2d 229; People v. Horton, 19 A.D.2d 80, 241 N.Y.S.2d 224, affd. 18 N.Y.2d 355, 275 N.Y.S.2d 377, 221 N.E.2d 909, cert. den. 387 U.S. 934, 87 S.Ct. 2059, 18 L.Ed.2d 997). But failing to marshall the evidence and the arguments may cause the charge to be defective, as in cases involving circumstantial evidence (People v. Tunstall, 5 A.D.2d 338, 171 N.Y.S.2d 666), and can require reversal in the interest of justice despite a failure to except to the charge at trial (People v. Lewis, 13 A.D.2d 714, 213 N.Y.S.2d 861).

The issue of whether the charge was defective cannot be determined by merely finding that the trial court failed to refer to or marshall any evidence or any arguments, or that the court, through that failure or otherwise, did not relate, or did not instruct the jury how to relate, the law to the facts. The decisions of our courts have consistently indicated that the requirements are flexible, to be measured against the complexities of the case and the capacity of the jury to recollect and analyze (see People v. Montessanto, 236 N.Y. 396, 140 N.E. 932; People v. Odell, 230 N.Y. 481, 130 N.E. 619; People v. Fanning, 131 N.Y. 659, 30 N.E. 569; People v. Rivera, 60 A.D.2d 852, 400 N.Y.S.2d 583; People v. Clayborn, 50 A.D.2d 952, 376 N.Y.S.2d 208; People v. Gardner, 59 A.D.2d 913, 399 N.Y.S.2d 146; People v. Tisdale, 18 A.D.2d 274, 239 N.Y.S.2d 226; People v. Christie, 16 A.D.2d 598, 229 N.Y.S.2d 779; People v. Birch, 283 App.Div. 844, 128 N.Y.S.2d 407; and People v. Shingles, 281 App.Div. 647, 121 N.Y.S.2d 651).

Turning to the instant appeal, I am satisfied from the record that "the material issues, both factual and legal, were made abundantly clear to the jury" (People v. Culhane, 45 N.Y.2d 757, 758, 408 N.Y.S.2d 489, 491, 380 N.E.2d 315, 317 cert. den. 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706, Supra ), and therefore see no reason for reversal of the judgment of conviction. The charge placed before the jury so much of the (1) rules of law, (2) the parties' arguments, and (3) guiding principles for evaluating the evidence as was necessary and practicable to enable the jury to apply the law to the facts in an intelligent manner.

The trial court did not, in fact, refer to, let alone marshall, any evidence. The defense arguments, however, were limited to whether the eyewitness, who had seen the defendant on earlier occasions as a patron at the restaurant she helped to...