People v. Henry, 109584

• Citation: 103 N.Y.S.3d 656,173 A.D.3d 1470
• Decision Date: 20 June 2019
• Docket Number: 109584
• Court: New York Supreme Court Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert HENRY, Appellant.

173 A.D.3d 1470
103 N.Y.S.3d 656

The PEOPLE of the State of New York, Respondent,
v.
Robert HENRY, Appellant.

109584

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 1, 2019
Decided and Entered: June 20, 2019

Paul J. Connolly, Delmar, for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

173 A.D.3d 1471

In July 2016, defendant was charged by indictment with murder in the second degree, robbery in the first degree, burglary in the first degree, four counts of grand larceny in the fourth degree, criminal possession of stolen property in the third degree and unauthorized use of a vehicle in the first degree based on allegations that defendant and Kevin Chapman entered the victim's home under false pretenses, restrained the victim before strangling him to death, looted the victim's home and stole the victim's Cadillac. After a jury trial, defendant was convicted as charged and was sentenced, as a persistent violent felony offender, to prison terms of 25 years to life for his convictions of murder in the second degree, burglary in the first degree and robbery in the first degree and, as a persistent nonviolent felony offender, to prison terms of 25 years to life for his convictions of grand larceny in the fourth degree, criminal possession of stolen property in the third degree and unauthorized use of a vehicle in the first degree.¹ All sentences are to run concurrently, except the sentence imposed for unauthorized use of a vehicle in the first degree, which is to run consecutively to the sentences imposed on the other convictions. Defendant appeals.

We first consider defendant's contention that County Court committed reversible error because the record fails to establish that the court provided defense counsel with meaningful notice of the contents of a jury note. CPL 310.30 provides that, "[a]t any time during its deliberations, the jury may request the court for further instruction or information with respect to ... any ... matter pertinent to the jury's consideration of the case. Upon such request, the court must direct that the jury be returned to the courtroom and, after notice to both the [P]eople and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper." The Court of Appeals has held that " CPL 310.30 imposes two responsibilities on trial courts upon

173 A.D.3d 1472

receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury. Meaningful notice means notice of the actual specific content of the jurors' request. The purpose

103 N.Y.S.3d 661

of this requirement is to give counsel an opportunity to participate in the formation of a response to the jury's substantive inquiry.... [W]hen the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required" ( People v. Parker, 32 N.Y.3d 49, 58–59, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] [internal quotation marks, ellipses, brackets and citations omitted] ).

During deliberations, the jury sent a note to County Court that stated: "Repeat Count 1 Murder 2nd in whole [and] Define ‘In concernt [sic] with.’ " The entire record regarding the jury note consists of the court stating that the note had been marked as a court exhibit and, after informing the jury that it had received the note, the court then stating that "[t]he lawyers and I just discussed it. We decided it was a pretty simple note. You'd like me to repeat the instructions on Count 1, that's Murder in the Second on a whole, that would include the affirmative defense. Also define what it means to be acting in concert with. So I'll read that part too." There were no objections, and the court proceeded to read the complete instructions, including burden of proof, on murder in the second degree, which included robbery in the second degree and its elements, the complete instructions and burden of proof on the affirmative defense, and the complete instructions and burden of proof on accessorial conduct.

Notably, although the record shows that County Court and counsel engaged in an off-the-record conference during which the note was discussed, without a record of the discussion, we have only the court's response to the jury concerning the note. A divided Court of Appeals has held that meaningful notice is not provided where there is no record indicating that counsel was informed of the "precise contents" of the note before the response is given to the jury, or where the trial court paraphrases or summarizes a jury note ( People v. Parker, 32 N.Y.3d at 59, 84 N.Y.S.3d 838, 109 N.E.3d 1138 ; see People v. Mack, 27 N.Y.3d 534, 542, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016] ). Given the court's statement to the jury that it had an off-the-record conversation with counsel regarding the note, it would not be unreasonable to believe that County Court had informed counsel of the note's precise contents. However, the record contains no specific indication that the court provided counsel with the precise content of the note before it delivered its response to the jury,

173 A.D.3d 1473

nor was the note read verbatim on the record before the response was given. Thus, the record fails to establish that counsel had the opportunity to participate in the formation of the court's response to the jury's substantive inquiry. In that regard, we note that the jury did not specifically refer to "instructions" or the "affirmative defense," which formed the basis of the court's response to the jury. Thus, on this record, we are constrained to follow the Court of Appeals' admonition that defense counsel's awareness of the existence and "gist" of a jury note does not satisfy the "affirmative obligation [of] a trial court to create a record of compliance under CPL 310.30 and [ People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) ]" ( People v. Morrison, 32 N.Y.3d 951, 952, 84 N.Y.S.3d 819, 109 N.E.3d 1119 [2018] [internal quotation marks and citation omitted]; see People v. Walston, 23 N.Y.3d 986, 990, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] ). Inasmuch as the note related solely to count 1 of the verdict sheet (count 11 of the indictment) concerning murder in the second degree, defendant's conviction for this crime only must be reversed and that count dismissed (see People v. Walston, 23 N.Y.3d at 990, 991 N.Y.S.2d 24, 14 N.E.3d 377 ).

103 N.Y.S.3d 662

As to his remaining convictions, defendant contends that they were not supported by legally sufficient evidence and were against the weight of the evidence. "When reviewing a legal sufficiency claim, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Haggray, 164 A.D.3d 1522, 1524, 83 N.Y.S.3d 374 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 1111, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] ).² "In conducting a weight of the evidence review, we view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. McCoy, 169 A.D.3d 1260, 1261–1262, 95 N.Y.S.3d 441 [2019] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167, 2019 WL 2476645 [May 15, 2019] ).

173 A.D.3d 1474

As relevant here, a person is guilty of robbery in the first degree "when he [or she] forcibly steals property and when, in the course of the commission of the crime ..., he [or she] or another participant in the crime ... [c]auses serious physical injury to any person who is not a participant in the crime" ( Penal Law § 160.15[1] ). A person is guilty of burglary in the first degree when he or she knowingly enters a dwelling with the intent to commit a crime therein and, while in the dwelling, causes physical injury to any person who is not a participant in the crime (see Penal Law § 140.30[2] ). As charged herein, a person is guilty of grand larceny in the fourth degree when he or she steals property having a value of more than $ 1,000, or steals a credit or debit card or steals a motor vehicle having a value exceeding $ 100 (see Penal Law § 155.30[1], [4], [8] ). A person is guilty of criminal possession of stolen property in the third degree when he or she knowingly possesses stolen property having a...