People v. Kerr

• Decision Date: 16 February 1978
• Citation: 402 N.Y.S.2d 192,61 A.D.2d 762
• Parties: The PEOPLE of the State of New York, Respondent, v. Mary KERR, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 192

402 N.Y.S.2d 192

61 A.D.2d 762

The PEOPLE of the State of New York, Respondent, v. Mary KERR, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 16, 1978.

R. O. Nidel, New York City, for respondent.

G. C. Cummings, New York City, for defendant-appellant.

Before LUPIANO, J. P., and BIRNS, EVANS, LANE and SULLIVAN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, (Klein, J. and a jury), rendered July 10, 1974, convicting defendant of the crime of Criminal Possession of a Dangerous Drug in the Fourth Degree, is unanimously reversed on the law, and the case is remanded for a new trial.

Appellant was convicted, after a trial by jury, of the crime of Criminal Possession of a Dangerous Drug in the Fourth Degree. The appellant and her co-defendant (her daughter) were arrested after the police forced entry into an apartment, pursuant to a valid search warrant, and discovered in a room in which the two women were present 246 glassine envelopes which contained heroin.

At the trial, appellant and her co-defendant were represented by the same attorney and the court made no inquiry as regards the possibility of conflict.

Over the protestations of defense counsel, the trial judge in his charge directed the jury to return a joint verdict in respect to both defendants. Additionally, the court required counsel to sign a voting sheet which confirmed the court's instructions that only a joint verdict, and not separate verdicts, was permissible.

A trial court has the duty to make an inquiry on the record when faced with dual representation and should recognize that defendants may not perceive existence of a conflict. People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550. Respondent cites U. S. v. Sheiner, 2 Cir., 410 F.2d 337, for the proposition that the choice of attorney should not be interfered with. In that case, however, the court alerted the co-defendants to the possible dangers of co-representation.

In this case the trial court's instruction as to a joint verdict was patently prejudicial. CPL § 300.10(3) in pertinent part provides:

"In its charge, the court must define each offense so submitted and, except as otherwise expressly provided, it must instruct the jury to render a verdict separately and specifically upon each count submitted to it, and with respect to each defendant if there be more than one . . ."

The defendant was deprived of a proper charge and that deprivation in...