People v. DiLuca

• Decision Date: 29 March 1982
• Citation: 448 N.Y.S.2d 730,85 A.D.2d 439
• Parties: The PEOPLE, etc., Respondent, v. Dominick DiLUCA, a/k/a Di Lucca and Joseph Petrizzo, a/k/a Mooney, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 730

448 N.Y.S.2d 730

85 A.D.2d 439

The PEOPLE, etc., Respondent, v. Dominick DiLUCA, a/k/a Di Lucca and Joseph Petrizzo, a/k/a Mooney, Appellants.

Supreme Court, Appellate Division Second Department.

March 29, 1982.

Spitznagel & Hamel, Commack (Carl J. Spitznagel, Jr., Commack, of counsel), for appellant Dominick DiLuca.

Ain, Libert & Weinstein, Garden City (Kenneth J. Weinstein, Garden City, of counsel), for appellant Joseph Petrizzo.

Patrick Henry, Dist. Atty., Riverhead (Gabrielle Weglein, Asst. Dist. Atty., Hauppauge, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, BROWN and NIEHOFF, JJ.

BROWN, Justice.

Upon these appeals we are asked to consider whether jurors may be allowed to take notes during trial.

The indictment of the defendants arises out of the transfer of the sum of $2,000 from defendant Petrizzo to an individual named Lido Occhiuto. It was charged that Petrizzo gave said moneys to Occhiuto as a loan and threatened him with physical harm if he defaulted; that Occhiuto was to pay interest on the loan at the rate of $100 a week until he could pay back the original $2,000 and that he made several weekly $100 payments to defendant DiLuca who was acting on behalf of Petrizzo. Occhiuto claimed that when he ceased making payments due to a lack of funds, he began to receive threatening telephone calls from the defendants. He further claimed that for a period of time he again made regular interest payments to DiLuca in the amount of $50 but when he stopped, again due to a lack of funds, the defendants began to renew the threats of physical harm.

Thereafter, Occhiuto was convicted of an unrelated grand larceny charge and, in exchange for a recommendation that he not be incarcerated thereon, he agreed to assist in the prosecution of the defendants with respect to the allegedly usurious loan. The investigation lasted about two months and involved the extensive use of tape recordings. Defendants were subsequently indicted for conspiracy in the fourth degree, grand larceny in the first degree and criminal usury in the second degree (two counts).

The defendants claim that the $2,000 was given to Occhiuto to be used for a business venture and that when Petrizzo learned that the money was not being used as intended, he demanded that it be repaid. The defendants claim that all of the payments made by Occhiuto were credited toward the repayment of the $2,000, that no usurious interest rate was charged and that Occhiuto was never threatened with physical harm.

At the defendants' first trial, the court dismissed the conspiracy charge and one count of criminal usury. However, the jury was unable to agree upon a verdict with respect to either defendant on the remaining charge and a mistrial was declared.

Thereafter the defendants were brought to trial a second time and, after both sides had rested, and prior to the commencement of summations, the Trial Judge, sua sponte, announced that it was his inclination to permit the jurors to take notes during the summations and the charge. Both defense counsel strenuously objected, but the Trial Judge (who had presided at the first trial as well) concluded that note-taking might be helpful for the jurors to assist them in their deliberations. He said that it might minimize the number of times that the jury might come back for further instructions or additional information and that "the time has come to test out this kind of practice".

Thereafter, between six and eight jurors accepted note pads from the court and three jurors were observed taking notes during the summations and the court's charge and during a read-back of taped conversations received in evidence. The court gave no advice to the jurors with respect to taking of notes nor were they instructed regarding the proper use thereof. Other than generally objecting to the court's allowing the jurors to take notes, however, neither defense counsel requested that cautionary instructions be given to the jury.

After two days of deliberations, the jury found defendant Petrizzo guilty of attempted grand larceny in the first degree and criminal usury in the second degree. Defendant DiLuca was found guilty only of criminal usury in the second degree.

The appropriateness of note-taking by jurors has been considered by most of the Federal circuit courts and by a number of States other than New York. The Federal courts have concluded that absent an abuse of discretion, it is within a trial court's province to allow a jury to take notes (United States v. Bertolotti, 529 F.2d 149 United States v. Maclean, 578 F.2d 64 United States v. Rhodes, 631 F.2d 43 United States v. Johnson, 584 F.2d 148 United States v. Braverman, 522 F.2d 218 cert. den. 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 382; United States v. Anthony, 565 F.2d 533 Toles v. United States, 308 F.2d 590 cert. den. 375 U.S. 836, 84 S.Ct. 79, 11 L.Ed.2d 66; United States v. Riebold, 557 F.2d 697 cert. den. 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133; Goodloe v. United States, 188 F.2d 621 cert. den. 342 U.S. 819, 72 S.Ct. 35, 96 L.Ed. 619). In United States v. Maclean, (supra, at p. 66) the court concluded that the benefits of note-taking

"are substantial enough to allow trial judges to decide, in each case, whether note-taking should be permitted. Since the value of note-taking will vary according to the complexity and quantitative nature of each trial as well as according to the abilities and desires of the jurors, the decision on whether to permit note-taking is best left to the trial judge to make based on the circumstances of each case. 'It is the judge ... who has the ultimate responsibility for the conduct of a fair and lawful trial.' Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978)."

The trend among the states is also to allow jurors to take notes and some states have enacted statutes permitting note-taking by jurors (see Parry, Taking Note of Note-Taking, 10 Columbia Journal of Law and Social Problems, 565, 585, n. 102). A number of state courts have considered the issue and have held that it is within the trial court's discretion to allow a jury to take notes (see 14 ALR 3d 831). At least one state, however, has enacted a statute prohibiting the practice of jurors taking notes (see Pennsylvania Rule of Criminal Procedure 1113).

No New York court has directly passed upon the issue of whether jurors may take notes. In Bolm v. Triumph Corp., 58 A.D.2d 1014, 397 N.Y.S.2d 498, however, the Fourth Department concluded that it was improper for a trial court to instruct one juror to take notes on the "key" parts of the charge for the benefit of the other members of the jury. It apparently had been left to the discretion of this selected juror to determine what the "key" parts of the charge were and the Fourth Department, in holding that this was error, reasoned that (p. 1015, 397 N.Y.S.2d 498) "responsibility for explaining the law rests upon the court * * * and not upon a designated lay juror who might or might not record statements of law accurately, and the court should not have directed the notetaking".

The New York Pattern Jury Instructions (1 PJI2d 1:6, 1981 Comm.Suppl. pp. 8, 9) recommends that when the issue of juror note-taking arises, the court should instruct the jury as follows:

"Jurors sometimes inquire whether they may take notes. The law does not prohibit your doing so, but I should also point out that there is no need for your doing so, since the court reporter takes down everything that is said in the courtroom and will read back to you during your deliberations any portion of the transcript you may ask for. Taking notes presents the further problem that doing so may divert your attention from some very important testimony given while you are taking the notes.

"In the event any of you do take notes during the trial, I point out to you and your fellow jurors that notes are simply an aid to memory and may not be given any greater weight or influence in the determination of this case than the recollection or impression of other jurors with respect to the facts or the conclusions to be drawn from the facts. Any difference between such a recollection and a juror's notes should, in any event, be settled by asking to have the court reporter's transcript on the point read back to you, for it is the court record rather than any juror's notes upon which you must base your determination of the facts and ultimately your verdict."

Section 426 of the former Code of Criminal Procedure provided that deliberating jurors might "take with them...