People v. Damiano

Decision Date16 January 1996
Citation663 N.E.2d 607,640 N.Y.S.2d 451,87 N.Y.2d 477
Parties, 663 N.E.2d 607 The PEOPLE of the State of New York, Appellant-Respondent, v. Jeffrey DAMIANO, Respondent-Appellant.
CourtNew York Court of Appeals Court of Appeals

CIPARICK, Judge.

CPL 310.20(2) provides that jurors may take a "written list prepared by the court containing the offenses submitted to the jury by the court in its charge and possible verdicts thereon" into the jury room when they conduct their deliberations. When the jury requests further instruction regarding the statutory definition or elements of a charged offense, CPL 310.30 allows the court, with the consent of the parties, to provide the jury with a copy of the text of the statute. We have consistently held that when counsel does not consent, it is reversible error for the court to provide the jury with a verdict sheet that contains statutory text or lists elements of the crimes charged in the indictment (see, People v. Spivey, 81 N.Y.2d 356, 599 N.Y.S.2d 477, 615 N.E.2d 961; People v. Johnson, 81 N.Y.2d 980, 599 N.Y.S.2d 525, 615 N.E.2d 1009; People v. Taylor, 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882; People v. Kelly, 76 N.Y.2d 1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159; People v Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33; People v. Sanders, 70 N.Y.2d 837, 523 N.Y.S.2d 444, 517 N.E.2d 1330). The primary issue, presented by the People's appeal, is whether, in the absence of the parties' consent or an objection by counsel, it is reversible error for the court to provide the jury with a verdict sheet that contains statutory elements or terms of the charged murder offense. The Appellate Division correctly applied our precedents by concluding that this was reversible error. We therefore affirm.

Factual Background

According to the People's evidence, on April 21, 1991, defendant and two friends positioned themselves on the Freetown Road overpass on the New York State Thruway in New Paltz and hurled rocks down upon the cars travelling on the Thruway. The three then repositioned themselves on the South Ohioville overpass, where defendant and one of the friends, Eric Birdsall, lobbed rocks they described to be the size of tennis balls into the traffic 24 feet below, hitting cars driven by James Carroll and Keith Dibble. In their final and fatal act, defendant and Birdsall heaved a 52-pound boulder down upon the on-coming traffic, smashing the car driven by 22-year-old Karen Zentner. She was killed instantaneously. A jury convicted defendant of murder in the second degree for the death of Zentner, as well as reckless endangerment in the first degree for creating a grave risk of death to Carroll and reckless endangerment in the second degree for creating a grave risk of death to Dibble. Defendant was sentenced to concurrent terms of 20 years to life on the murder count, 2 1/3 to 7 years on first degree reckless endangerment count and one year for the second degree reckless endangerment offense.

The Appellate Division modified the judgment by reversing the conviction on the murder count based on the trial court's error in submitting a verdict sheet to the jury which parenthetically listed elements of the crime of murder in the second degree and the lesser included offense of manslaughter in the second degree charged under the first count, and remitted for a new trial on the murder count, and otherwise affirmed (see, People v. Damiano, 209 A.D.2d 873, 619 N.Y.S.2d 214). A Judge of this Court granted the People leave to appeal and defendant leave to cross-appeal.

I The People's Appeal

The People argue that the Appellate Division erred as a matter of law in reviewing defendant's unpreserved claim that the trial court committed reversible error by submitting an annotated verdict sheet to the jury, which, defendant alleges, compromised his right to a fair trial (see, People v. Cona, 49 N.Y.2d 26, 34, 424 N.Y.S.2d 146, 399 N.E.2d 1167). The People concede that the annotated verdict sheet was improper, but contend that a proper objection was a prerequisite to reversal on this basis. The People insist that defendant's failure to register any objection to this verdict sheet renders his belated challenge not only unpreserved for appellate review, but actually constitutes implicit consent to the annotated verdict sheet, a contention embraced by the dissent. We disagree.

The "statement of charges" submitted to the jury lists the first count as "murder in the second degree" and on the succeeding line is the parenthetical reference "depraved mind murder." The lesser included offense is set forth in the alternative on the next line and reads "if not guilty, manslaughter in the second degree," followed by the parenthetical reference "reckless manslaughter" on the subsequent line. Without the parties' consent, these explanatory parentheticals which refer to depravity and recklessness--elements of the crimes charged pursuant to count one of the indictment--offend the letter of the law (see, CPL 310.30; see also, CPL 310.20[2] ).

As our precedents establish, we strictly construe the express, unambiguous statutory language that the court may only furnish an expanded or supplemental verdict sheet "with the consent of the parties," and tolerate nothing other than a "statement of charges." (CPL 310.30; see, People v. Spivey, 81 N.Y.2d 356, 599 N.Y.S.2d 477, 615 N.E.2d 961, supra; People v. Johnson, 81 N.Y.2d 980, 599 N.Y.S.2d 525, 615 N.E.2d 1009, supra; People v. Kelly, 76 N.Y.2d 1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159, supra; People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33, supra; People v. Owens, 69 N.Y.2d 585, 590, 516 N.Y.S.2d 619, 509 N.E.2d 314.) 1 In accordance with this provision, we have held that the submission, over counsel's objection, of selected portions of statutory text or the text itself constitutes error as the nature of the jury's role is fact finding, not interpretation of the applicable legal terms (see, People v. Owens, 69 N.Y.2d, at 591, 516 N.Y.S.2d 619, 509 N.E.2d 314, supra; People v. Taylor, 76 N.Y.2d, at 874, 560 N.Y.S.2d 982, 561 N.E.2d 882, supra). As a general matter, any potential prejudice to the deliberative process arising from the jurors' consideration of statutory material cannot be evaluated because there is no record of their deliberations (see, People v. Owens, 69 N.Y.2d, at 591, 516 N.Y.S.2d 619, 509 N.E.2d 314, supra; see also, Schwarzer, Communicating with Juries: Problems and Remedies, 69 Cal.L.Rev. 731).

CPL 310.30 demands the parties' consent to references to statutory terms or elements on a verdict sheet, for it is trial counsel who are best positioned to assess the usefulness of such references in the deliberative process and/or the prejudice that may inure therefrom. CPL 310.30, together with our interpretive jurisprudence, collectively the "doctrinal underpinning" decried by the dissent, delineates the procedures to handle jury requests and the scope of statutory material appropriately provided to a jury (see, e.g., People v. Moore, 71 N.Y.2d 684, 688, 529 N.Y.S.2d 739, 525 N.E.2d 460; People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610, rearg. denied 69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363; People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33, supra; People v. Sanders, 70 N.Y.2d 837, 523 N.Y.S.2d 444, 517 N.E.2d 1330, supra; People v. Owens, 69 N.Y.2d 585, 516 N.Y.S.2d 619, 509 N.E.2d 314, supra; see also, People v. Tucker, 77 N.Y.2d 861, 568 N.Y.S.2d 342, 569 N.E.2d 1021). These procedures devolve from the recognized decisive function of jury deliberations, the critical role materials taken into the jury room can play in the deliberative process, and the fact that trial counsel is best equipped to assess the value of materials provided to the jury which are not expressly authorized by statute (see, e.g., People v. Young, 79 N.Y.2d 365, 582 N.Y.S.2d 977, 591 N.E.2d 1163; People v. Sotomayer, 79 N.Y.2d 1029, 584 N.Y.S.2d 431, 594 N.E.2d 925; People v. Taylor, 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882, supra; People v. Brooks, 70 N.Y.2d 896, 524 N.Y.S.2d 382, 519 N.E.2d 293; People v. Owens, 69 N.Y.2d 585, 516 N.Y.S.2d 619, 509 N.E.2d 314, supra ).

Thus, when the court determines that listing statutory elements or terms of the crime--whether as labels or a shorthand for statutory text--on the verdict sheet will aid the jury in their deliberations, the court must permit counsel to review the annotated verdict sheet and obtain counsel's consent prior to submitting it to the jury. This will ensure compliance with the statutory mandate of CPL 310.30, and the "consent of the parties," contemplated both by CPL 310.30 and our decisional authority (see, People v. Spivey, 81 N.Y.2d, at 361-362, 599 N.Y.S.2d 477, 615 N.E.2d 961, supra; People v. Sotomayer, 79 N.Y.2d, at 1030, 584 N.Y.S.2d 431, 594 N.E.2d 925, supra; People v. Taylor, 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882, supra; People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33, supra; People v. Sanders, 70 N.Y.2d, at 838, 523 N.Y.S.2d 444, 517 N.E.2d 1330, supra ). In addition, it provides documentation on the record. Likewise, an objection, where advised, could be recorded (see, People v. Johnson, 81 N.Y.2d, at 982, 599 N.Y.S.2d 525, 615 N.E.2d 1009, supra; People v. Kelly, 76 N.Y.2d 1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159, supra; People v. Brooks, 70 N.Y.2d, at 897, 524 N.Y.S.2d 382, 519 N.E.2d 293, supra; People v. Owens, 69 N.Y.2d, at 591, 516 N.Y.S.2d 619, 509 N.E.2d 314, supra ), preempting the speculation precipitated by a silent record. In this regard, we commend the practice of counsels' initialing the verdict sheet after the trial court presents...

To continue reading

Request your trial
88 cases
  • Congelosi v. Miller
    • United States
    • U.S. District Court — Western District of New York
    • April 27, 2009
    ...the jury retired to deliberate. As there was no violation of Congelosi's right to be present, see People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 (N.Y. 1996), appellate counsel quite reasonably choose not to press this meritless claim on direct b. Failure to assert u......
  • Knight v. Walsh
    • United States
    • U.S. District Court — Western District of New York
    • December 17, 2007
    ...an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent...." People v. Damiano, 87 N.Y.2d 477, 640 N.Y.S.2d 451, 455, 663 N.E.2d 607, 611 (1996). Nevertheless, as relevant here, even an error that is, under state law, per se reversible, provides no b......
  • Anderson v. Keane
    • United States
    • U.S. District Court — Southern District of New York
    • September 17, 2003
    ...the issue can properly be raised on appeal and the verdict must be overturned unless consent was given. People v. Damiano, 87 N.Y.2d 477, 640 N.Y.S.2d 451, 663 N.E.2d 607 (1996). The prosecution bears the burden of proving that consent was in fact given by defense counsel. Bumper v. North C......
  • In re Phila. Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • July 6, 2012
    ...and contributes to the actual and perceived integrity of the judicial process' ” ( id.;see People v. Damiano, 87 N.Y.2d 477, 488–489, 640 N.Y.S.2d 451, 663 N.E.2d 607 [Simons, J., concurring]; Baden v. Staples, 45 N.Y.2d 889, 892, 410 N.Y.S.2d 808, 383 N.E.2d 110). Here, this Court has prev......
  • Request a trial to view additional results
9 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...792 N.Y.S.2d 143 (2d Dept. 2005), § 5:160 People v. Dalton, 217 A.D.2d 587, 629 N.Y.S.2d 86 (2d Dept. 1995), § 5:190 People v. Damiano, 87 N.Y.2d 477, 640 N.Y.S.2d 451 (1996), §§ 9:50, 9:80 People v. Daniels, 265 A.D.2d 909, 698 N.Y.S.2d 120 (4th Dept. 1999), § 5:180 People v. Darden, 34 N.......
  • Real evidence
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2018 Contents
    • August 2, 2018
    ...of the court the defendant and the attorneys, since the exhibits had already been admitted into evidence); and see People v. Damiano , 87 N.Y.2d 477, 640 N.Y.S.2d 451 (1996). PRACTICE TIP Learn the trial court’s policy. Ascertain in a pretrial conference the trial court’s policy concerning ......
  • Real evidence
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • August 2, 2015
    ...of the court the defendant and the attorneys, since the exhibits had already been admitted into evidence); and see People v. Damiano , 87 N.Y.2d 477, 640 N.Y.S.2d 451 (1996). 9-3 — REAL EVIDENCE § 9:80 PRACTICE TIP Learn the trial court’s policy. Ascertain in a pretrial conference the trial......
  • Real evidence
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...of the court the defendant and the attorneys, since the exhibits had already been admitted into evidence); and see People v. Damiano , 87 N.Y.2d 477, 640 N.Y.S.2d 451 (1996). PRACTICE TIP Learn the trial court’s policy. Ascertain in a pretrial conference the trial court’s policy concerning ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT