People v. Kelly

Decision Date02 August 1990
Citation164 A.D.2d 767,558 N.Y.S.2d 956
PartiesThe PEOPLE of the State of New York, Respondent, v. Ross KELLY, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

A. Schacht, New York City, for respondent.

J. Gemmill, New York City, for defendant-appellant.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered March 25, 1988, convicting defendant, after a jury trial, of robbery in the first degree [P.L. § 160.15(2) ] and criminal possession of a weapon in the second degree [P.L. § 265.03], and sentencing him, as a predicate violent felon, to concurrent indeterminate terms of imprisonment of from nine to eighteen years and from six to twelve years, respectively, reversed, on the law, and a new trial ordered.

This prosecution stemmed from a robbery which occurred at 2:00 a.m. on August 9, 1987, at the Latin Quarter, a nightclub on West 48th Street in Manhattan. The complainant, 18-year-old Carlief Vozzo, was approached by defendant, a neighborhood acquaintance of six years, who demanded a gold ring worn by Vozzo. When Vozzo refused, defendant threatened him with a box cutter, and a cohort grabbed complainant's arms from behind. Defendant then placed a chain that he had been wearing around the complainant's neck and, after again being refused the ring, took it from the complainant's hand and began to leave, threatening, "If you follow me, I'm going to shoot you."

Complainant immediately reported the robbery to a bouncer at the nightclub and he, together with another bouncer, chased defendant out of the club and into the streets. The chase was observed by police officers who recognized the bouncers and joined in the pursuit, and defendant was ultimately caught as he attempted to hide beneath a car. Upon apprehending him, one of the officers looked under the car and recovered a loaded .25 caliber pistol.

Defendant was indicted for two counts of robbery in the first degree [P.L. § 160.15(2) ("armed with a deadly weapon") and (3) ("uses or threatens the immediate use of a dangerous instrument") ] and one count each of criminal possession of a weapon in the second and third degrees [P.L. §§ 265.03 and 265.02]. On appeal, defendant argues that it was error for the trial court to have submitted to the jury a verdict sheet containing elements of the crimes charged. We agree.

Pursuant to CPL § 310.20(2), a verdict sheet containing the offenses charged by the court may be submitted to the jury. In the within case, the verdict sheet provided to the jury was not limited to a list of the various counts to be considered, but included some elements of the crimes. Specifically, the court listed one count of robbery in the first degree with the parenthetical description, "He used and threatened the immediate use of a dangerous instrument, a sharp instrument", and the second count of this crime with the parenthetical description, "armed with a deadly weapon, a loaded pistol". Although this procedure was employed for the commendable purpose of assisting the jurors to distinguish between the two counts of robbery in the first degree, it was improper pursuant to People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33. There, the Court of Appeals held that the submission to the jury of a second verdict sheet, which listed elements of the counts, went beyond the scope of CPL § 310.20 and, in the absence of the consent of the parties, constituted reversible error. See, also People v. Bollander, 156 A.D.2d 456, 457, 549 N.Y.S.2d 27, 29. Thus, a reversal of the robbery conviction is mandated herein and, since the conviction for criminal possession of a weapon in the second degree is factually related, that count requires a new trial as well. See People v. Cohen, 50 N.Y.2d 908, 911, 431 N.Y.S.2d 446, 409 N.E.2d 921.

Defendant's claims that he was denied a fair trial by the court's erroneous "no adverse inference" charge and its reasonable doubt charge are unpreserved for appellate review, CPL § 470.05(2); People v. Autry, 75 N.Y.2d 836, 552 N.Y.S.2d 908, 552 N.E.2d 156; People v. Flecha, 161 A.D.2d 116, 554 N.Y.S.2d 845, and we decline to review them in the interest of justice. In any event, the court's charge as a whole adequately conveyed the appropriate standards to the jury. People v. Adams, 69 N.Y.2d 805, 513 N.Y.S.2d 381, 505 N.E.2d 946; People v. Malloy, 55 N.Y.2d 296, 300, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied, 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93. However, since there must be a new trial, we note that the more advisable practice is for the trial...

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7 cases
  • People v. Damiano
    • United States
    • New York Court of Appeals Court of Appeals
    • January 16, 1996
    ... ... 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 ... Page 453 ... [663 N.E.2d 609] 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 ... ...
  • People v. Allan
    • United States
    • New York Supreme Court — Appellate Division
    • April 22, 1993
    ... ... Nunez, supra; People v. Lattimore, 174 A.D.2d 352, ... 570 N.Y.S.2d 559, lv. denied 79 N.Y.2d 859, 580 N.Y.S.2d 731, 588 N.E.2d 766; People v. Kelly, 164 A.D.2d 767, 558 N.Y.S.2d 956 [reversible error found on other grounds], affd. 76 N.Y.2d 1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159; People v. Rivera, 160 A.D.2d 419, 554 N.Y.S.2d 115, lv. denied 76 N.Y.2d 1024, 565 N.Y.S.2d 774, 566 N.E.2d 1179). Notably, these cases involved language which ... ...
  • People v. Kelly
    • United States
    • New York Court of Appeals Court of Appeals
    • December 27, 1990
  • People v. Bullock
    • United States
    • New York Supreme Court — Appellate Division
    • April 30, 1992
    ... ...         The trial court committed reversible error when it submitted to the jury, over defendant's objection, a verdict sheet that listed not only the crimes charged but also some of their [182 A.D.2d 594] elements (People v. Kelly", 76 N.Y.2d 1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159, aff'g, 164 A.D.2d 767, 558 N.Y.S.2d 956; People v. Taylor, 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882; People v. Johnson, 176 A.D.2d 148, 573 N.Y.S.2d 1015) ...         Defendant's application for summary reversal is denied ...  \xC2" ... ...
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