People v. Chestnut

• Decision Date: 07 June 2012
• Citation: 950 N.Y.S.2d 287,19 N.Y.3d 606,2012 N.Y. Slip Op. 04375,973 N.E.2d 697
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin CHESTNUT, Appellant.
• Court: New York Court of Appeals Court of Appeals

19 N.Y.3d 606

973 N.E.2d 697

950 N.Y.S.2d 287

2012 N.Y. Slip Op. 04375

The PEOPLE of the State of New York, Respondent,

v.Kevin CHESTNUT, Appellant.

Court of Appeals of New York.

June 7, 2012.

Appellate Advocates, New York City (William G. Kastin and Lynn W.L. Fahey of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan and John M. Castellano of counsel), for respondent.

OPINION OF THE COURT

JONES, J.

The issue presented is whether Supreme Court's error in denying defendant's requests for a severance based on the improper joinder of certain counts relating only to codefendant ( seeCPL 200.40[1] ) is harmless. We hold that Supreme Court's conceded error is not.

On November 6, 2005, in broad daylight, two assailants robbed the complainant at gunpoint as he was loading packages into his car on a street in Queens. Jewelry, cash, a cell phone, two fur coats and an expensive bag were forcibly stolen from the complainant. By Queens County indictment No. 658/2006, defendant and his codefendant were charged, on an acting-in-concert theory, with first- and second-degree robbery based solely on the complainant's identification. The same indictment also separately charged only the codefendant with four drug offenses and resisting arrest stemming from his arrest at his mother's home on January 16, 2006. Although the drug counts and the resisting arrest count had no connection to defendant or the November 6, 2005 incident, defendant, who was arrested in December 2005, and his codefendant were tried together, before a jury, on the single indictment.

Defendant's counsel, at numerous points during the proceedings, sought to sever the joint trial or otherwise advise the court of the impropriety of a joint trial in this case. For example, he:

(1) noted, in defendant's pretrial omnibus motion, that defendant's codefendant had been “indicted for a number of drug related offense[s] which by necessity will create substantial prejudice which will spill over and infect [defendant]”;

(2) stated, in support of defendant's motion to sever, that “joint trials can be prejudicial when one defendant is not being accused of the same crimes as his co-defendant” and that defendant “should not be placed in a position where spillover testimony can adversely affect jury deliberations” (citing Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 [1993] );

(3) argued, during voir dire (about one week before trial), that defendant and his codefendant should not be tried jointly;

(4) stated, on the record just prior to jury selection, that defendant's codefendant “is charged with drugs in this case. My client is not. I think I have a Hercul[e]an task [in] preventing the jury from mixing that mash together”;

(5) explained, following the trial court's opening remarks to the jury pool, “Your Honor, during the course of the trial I am anticipating that the People by virtue of the posture of this indictment are about to be offering proof of [defendant'scodefendant] being involved in narcotics.... It's my intention that each and every time ... the prosecutor attempts to do that, I am going to be objecting to it, Judge.”

At this time, counsel further argued that a severance was “in order” because the drug evidence against defendant's codefendant “will enure to the total detriment of [defendant] who is not charged in any way with any narcotics”;

(6) noted, in response to the trial court's statement that it had instructed the jury pool to consider the charges separately, that such an instruction was “insufficient to cure the prejudicial effect” of a joint trial, and that the People were “making a grave mistake” by pursuing such a trial;

(7) objected to that portion of the prosecutor's opening statement which referred to the warrant officers and the drug allegations because they did not pertain to defendant. At this point in the proceedings, the trial court indicated that it understood counsel's objection and that counsel did not have to keep objecting;

(8) renewed his motion for severance based on the prosecutor's opening statement, arguing that the prosecutor exposed the jury to “excessive prejudicial information,” and that defendant, who was not charged with any drug offenses, could “no longer get a fair hearing”; and

(9) objected to the drug-related testimony of police officers and other witnesses, and renewed his severance motion when one of the officers testified.

Although defendant's counsel made numerous requests for a severance, the People never took a position on any of defendant's applications; further, Supreme Court denied all of defendant's requests for severance without explanation.

Defendant and his codefendant were convicted, upon a jury verdict, of first-degree robbery. In addition, defendant's codefendant was convicted of three drug counts and resisting arrest. Defendant was sentenced to 12 years; his codefendant was sentenced to 25 years to life.

On appeal, defendant argued that the joinder of his robbery charges with the drug and resisting arrest charges against his codefendant violated CPL 200.40(1), which provides that defendants may be jointly charged in a single indictment if (a) “all such defendants are jointly charged with every offense”; (b) “all the offenses charged are based upon a common scheme or plan”; (c) “all the offenses charged are based upon the same criminal transaction”; or (d) under certain circumstances where the indictment includes a count of enterprise corruption. The Appellate Division affirmed Supreme Court's judgment, holding:

“As the People correctly concede, the codefendant should have been tried separately pursuant to CPL 200.40(1) as to the drug counts and resisting arrest count against him, as those counts in no way related to the defendant. Although the Supreme Court erred in denying the defendant's motion to sever the unrelated counts applicable only to the codefendant, the error was harmless” (81 A.D.3d 661, 916 N.Y.S.2d 787 [2d Dept.2011] [citations omitted] ).

A Judge of this Court granted defendant leave to appeal (17 N.Y.3d 814, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ), and we now reverse.

The Appellate Division concluded, and the parties agree, that Supreme Court erred in denying defendant's motion to sever the unrelated counts applicable only to his codefendant ( seeCPL 200.40[1] ). This error is clear because the Queens County indictment which charged defendant and his codefendant violated section 200.40(1)'s direction concerning when defendants may be jointly charged in a single indictment; in other words, the instant joint trial was prohibited under CPL 200.40(1).¹ Thus, the question before us is whether this nonconstitutional error is harmless.²

The harmless error doctrine is applicable only if: (1) the quantum and nature of the evidence against the defendant must be great enough to excise the error, and (2) the causal effect that the error may nevertheless have had on the jury must be overcome ( see People v. Crimmins, 36 N.Y.2d 230, 240, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). That is, it must be established that the evidence against the defendant is overwhelming, such that it is likely that the trial error did not infect the jury's finding ( see id. at 240–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Stated differently, an error may be found to be harmless only where proof of guilt without reference to the error is overwhelming.

Contrary to the People's contention, the evidence in this case is far from overwhelming. This was a one-witness identification case where the sole identifying witness was the complainant (i.e., only the complainant identified defendant as a perpetrator). There was no corroborating evidence. No physical evidence linked defendant to the robbery and he made no inculpatory statements. To establish that the evidence of defendant's guilt was overwhelming in this case, the reliability of the complainant's identification of defendant cannot be in question. Because there was reason to doubt the reliability of the complainant's identification of defendant in the first instance, we reject the People's contention that the evidence was overwhelming in establishing defendant's guilt.

Indeed, the complainant's description of the second assailant (alleged to be defendant) did not fit defendant. The complainant, who is five feet eight inches, said the second assailant was his height; defendant is 5 feet 11 inches. Further, although the crime occurred in broad daylight, the complainant did not notice certain physical features of defendant (e.g., tattoos on his hands), even though he claimed he looked at that assailant's hands, which were six to seven inches away, “very closely” as he removed the complainant's jewelry, but he never reported seeing tattoos on those hands.

The complainant also gave only the most general descriptions of his assailants to the police (i.e., a five feet seven inch black man of average build and a lighter-skinned five feet eight inch man). These vague descriptions cast doubt on the accuracy of his subsequent identification, especially because the complainant testified that he was in close proximity to the assailant, alleged to be defendant, and that he looked at him for “at least a minute.”

In addition, the complainant was tentative and uncertain in his initial identification of defendant. The complainant failed to definitively identify defendant's photograph two hours after the robbery, instead asking to have it enlarged and saying it “look[ed] like” the man; a few weeks later the complainant could only say that defendant was “possibly” or “look[ed] like” the robber; the complainant only became “positive” in his identification of defendant about five weeks after the crime.

We further conclude that the second prong of the harmless error test was not met because here there is a great risk that Supreme Court's error infected the jury's finding. The improper joinder (of defendant and his...