People v. Kisoon

• Decision Date: 13 February 2007
• Citation: 863 N.E.2d 990,8 N.Y.3d 129
• Parties: The PEOPLE of the State of New York, Appellant, v. Ganesh KISOON, Also Known as Ganesh Kisson, Respondent. The People of the State of New York, Appellant, v. Leon Martin, III, Respondent.
• Court: New York Court of Appeals Court of Appeals

863 N.E.2d 990

8 N.Y.3d 129

The PEOPLE of the State of New York, Appellant, v. Ganesh KISOON, Also Known as Ganesh Kisson, Respondent.

The People of the State of New York, Appellant, v. Leon Martin, III, Respondent.

Court of Appeals of New York.

February 13, 2007.

Richard A. Brown, District Attorney, Kew Gardens (Donna Aldea and John M. Castellano of counsel), for appellant in the first above-entitled action.

William G. Kastin, New York City, and Lynn W.L. Fahey for respondent in the first above-entitled action.

Frank J. Clark, District Attorney, Buffalo (Donna A. Milling and J. Michael Marion of counsel), for appellant in the second above-entitled action.

Thomas Theophilos, Buffalo, for respondent in the second above-entitled action.

OPINION OF THE COURT

KAYE, Chief Judge.

In each appeal, we are asked to determine whether a trial court committed a mode of proceedings error when it failed to disclose, or significantly paraphrased, a jury note. We conclude that it did.

In People v. Kisoon, the People alleged that on June 5, 2001, defendant, from inside a parked car, sold an undercover police officer two plastic "twists" of cocaine for $40 pre-recorded buy money. The field team arrested defendant approximately one minute later. The police searched defendant and recovered $20 of the buy money from defendant's pocket and 40 bags of cocaine from his underwear.

During jury deliberations, the trial court received the following jury note: "We took a vote. We are not unanimous. We are 10 guilty to 2 not guilty on all three counts. Furthermore, we believe that further deliberations will not change our decision." Outside the jury's presence, the court told the parties that "[t]he jury has sent the Court a note saying that further deliberations are hopeless, that they are hopelessly deadlocked. Bring in the jury." When the jurors were present in the courtroom, the court announced: "The jury sent the Judge a note, `We believe that further deliberation will not change our decision, 3:25 p.m.'" Without first consulting counsel or apprising counsel of its intended response, the court admonished the jurors to take their responsibility seriously and to continue deliberations. Defense counsel neither asked to see the note nor objected to the supplemental charge.

The next day, the jury convicted defendant of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree. The Appellate Division in a three-two decision reversed defendant's conviction and ordered a new trial, citing the trial court's critical failure to disclose the jury vote. The dissent would have required preservation.

In People v. Martin, the People alleged that, shortly before 2:00 A.M. on August 31, 1991, defendant stabbed Yolanda Kelly 53 times, killing her. Defendant claimed that he was justified, because the decedent had initiated the knife attack.

The trial court instructed the jury on the counts of intentional murder, depraved indifference murder and criminal possession of a weapon in the third degree, as well as the lesser-included crimes of manslaughter in the first and second degrees. During deliberations, the trial court, due to a clerical error, failed to read or respond to the jury's first note, which, in part, requested, "definitions of 3 counts."

Ten minutes later, the jury sent a second note, "Want a brief readback. First Count 3 points." The court called the jury into the courtroom, and without consulting counsel, addressed the jury: "I have your note, and I understand that you want me to read back the elements necessary on the first count, is that my understanding, okay?" The court then reread the intentional murder instruction, after which a juror stated, "Second count, as long as we're here." Again without objection from defense counsel, the trial court reread its depraved indifference murder charge.

Approximately one-half hour later, the jury sent out a third note, "reread elements of 3rd ct." The trial court again failed to notify counsel of the note's content before responding to the jury. The court stated, "I have your message, your note where you say please read the elements of the third count. Before I do that, I want to just double check with you, if you do mean the third count of the indictment or if you are referring to something else. Are you asking for the third count of the criminal possession of a weapon in the third degree?" After an affirmative response, the trial court then reread its weapons possession charge, and the jury returned a guilty verdict.

The Appellate Division initially affirmed defendant's convictions for intentional murder and criminal possession of a weapon in the third degree but later granted defendant's motion for a writ of error coram nobis. Concluding that the trial court had committed a mode of proceedings error, the Appellate Division, in a three-two decision, reversed defendant's conviction and ordered a new trial.

In each case, we affirm the order of the Appellate Division.

The governing statute, CPL 310.30, provides:

"At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper" (emphasis added).

As we made clear in People v. O'Rama, 78 N.Y.2d 270, 277, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991), the trial court's core responsibility under the statute is both to give meaningful notice to c...