People v. Lewis

• Decision Date: 01 May 2014
• Docket Number: No. 39.,39.
• Citation: 2014 N.Y. Slip Op. 02969,12 N.E.3d 1091,23 N.Y.3d 179,989 N.Y.S.2d 661
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony LEWIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 179

12 N.E.3d 1091

989 N.Y.S.2d 661

2014 N.Y. Slip Op. 02969

The PEOPLE of the State of New York, Respondent

v.Anthony LEWIS, Appellant.

No. 39.

Court of Appeals of New York.

May 1, 2014.

Robert S. Dean, Center for Appellate Litigation, New York City (Susan H. Salomon of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello, Susan Axelrod and Alan Gadlin of counsel), for respondent.

OPINION OF THE COURT

PIGOTT, J.

The issues on this appeal are whether the trial court ran afoul of CPL 310.20(2) when it submitted to the jury a verdict sheet containing the locations of the designated offenses, and

whether law enforcement's warrantless installation of a global positioning system (GPS) tracking device on defendant's vehicle violated our holding in People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009) and the holding of the United States Supreme Court in United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).

I

Defendant and two codefendants engaged in a sophisticated scheme to steal property through the use of forged credit cards. They first acquired credit card numbers from legitimate accounts of cardholders who lived in other states. Then, with the aid of a “reader/writer” machine—a device that reads and writes the magnetic strips on credit cards—they placed the stolen information on the strips of blank cards that had been fabricated to look like genuine credit cards bearing the conspirators' names or aliases. With forged cards in hand, defendant and his codefendants made purchases at several stores in Manhattan.

In January 2007, investigators from the New York County District Attorney's Office obtained an eavesdropping warrant allowing them to wiretap two of defendant's cell phones. Via the wiretaps, investigators heard defendant discussing his purchase of the reader/writer machine and his attempts to purchase blank plastic cards for use in creating fake credit cards. Investigators also conducted visual surveillance

of defendant, but they found that to be difficult because of Manhattan's traffic congestion. As a result, investigators, without first securing a warrant, placed a battery-operated GPS device on defendant's vehicle. Between March 5 and March 16, 2007, defendant and his codefendants visited various stores and utilized forged credit cards to either purchase or attempt to purchase items with the illegally obtained credit card numbers belonging to individuals from out of state, that had been issued by, among other institutions, HSBC, MasterCard, and Chase Bank. Investigators interviewed store employees and recovered store receipts and surveillance video relative to the transactions.

In May 2007, a grand jury handed down a 61–count indictment against defendant and his codefendants charging them with grand larceny, criminal possession of a forged instrument, criminal possession of stolen property, criminal possession of forgery devices, identity theft and scheme to defraud. In February 2009, approximately one month before trial, the prosecutor provided the defense with copies of the surveillance reports, which disclosed, for the first time, that a GPS tracking device had been placed on defendant's vehicle.

In March 2009, the case proceeded to trial on 26 of the counts. The People presented evidence concerning the myriad of transactions that had taken place during the period in question. The testimony on the People's case-in-chief addressed multiple transactions in numerous stores on different dates involving the use of different credit card numbers, which had been issued by assorted banking institutions and obtained from various individuals throughout the United States.

Prior to summations, the trial court, concerned that the jury would have difficulty distinguishing among the submitted counts, prepared a verdict sheet that listed the count number, the offense charged, the date of the alleged offense, and either the name of the store where the alleged offense occurred or the name of the bank that issued the credit card. Defense counsel objected to the annotations on the verdict sheet to the extent it mentioned locations, amounts and dates. The court explained that it prepared the verdict sheet in conformance with the Criminal Procedure Law, and stated that it would instruct the jury that the notations served the sole purpose of distinguishing one count from another.

In its charge to the jury, the court instructed that the sheet had been formulated for the jury's “guidance” and that “there are some notations [on the sheet] whose only purpose is to remind you of the difference between each of the counts.”

The jury found defendant guilty on 20 of the 26 counts, namely, two counts of grand larceny in the third degree, three counts of grand larceny in the fourth degree, eight counts of criminal possession of a forged instrument in the second degree, five counts of identity theft in the first degree, and one count each of scheme to defraud in the first degree and criminal possession of forgery devices.

Defendant made a posttrial CPL 330.30 motion asserting, among other things, that the trial court erred in permitting evidence concerning the GPS device placed on defendant's car, relying on this Court's decision in Weaver, which had been pending during his trial and was handed down after the jury's verdict. The court summarily denied that motion at sentencing, and defendant was sentenced to 9 ? to 28 years' imprisonment.

The Appellate Division unanimously affirmed, holding that the investigators' “limited use” of the GPS device was permissible under our holding in People v. Weaver and, to the extent it violated state

or federal constitutional law, any error was harmless

(102 A.D.3d 505, 505–506, 958 N.Y.S.2d 348 [1st Dept.2013] ). It also concluded that because the stores listed on the verdict sheet were “proxies” for the “complainants,” the annotations did not run afoul of CPL 310.20(2) (id. at 508, 958 N.Y.S.2d 348 ). A Judge of this Court granted defendant leave to appeal (20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ), and we now affirm.

II

In People v. Miller, 18 N.Y.3d 704, 944 N.Y.S.2d 433, 967 N.E.2d 656 (2012), we held that a trial court commits reversible error by providing a jury in a criminal trial with a verdict sheet containing annotations that are not authorized by CPL 310.20(2) (id. at 706, 944 N.Y.S.2d 433, 967 N.E.2d 656 ). That section provides:

“Upon retiring to deliberate, the jurors may take with them: ...

“2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts” (emphasis supplied).

Subdivision (2) had originally included only the first sentence, and was amended in 1996 to grant trial courts the authority to include annotations concerning “the dates, names of complainants or specific statutory language” to “facilitate an orderly and intelligent deliberative process and prevent needless reversals of convictions” (Governor's Approval Mem., Bill Jacket, L. 1996, ch. 630 at 9, 1996 N.Y. Legis. Ann. at 453).

Defendant, relying on Miller, claims that the trial court committed reversible error by submitting the annotated verdict sheet to the jury, and challenges 15 out of the 20 counts of which defendant was convicted. According to defendant's reading, because the verdict sheet contained references to the locations of the offenses and names of the issuing banks (as opposed to the names of the individuals whose card numbers had been stolen), he is entitled to a new trial because that information does not fall within the categories specified in section 310.20(2). We disagree.

As we explained in Miller “[n]othing of substance can be included [on a verdict sheet] that the statute does not authorize” ( Miller, 18 N.Y.3d at 706, 944 N.Y.S.2d 433, 967 N.E.2d 656 [emphasis supplied] ). The verdict sheet in Miller violated section 310.20(2) because it included a legal instruction relative to burden of proof, i.e., words or terms “of substance” (id. at 706–707, 944 N.Y.S.2d 433, 967 N.E.2d 656 [verdict sheet asked the jury if the defendant had established by a preponderance of the evidence that he acted under extreme emotional disturbance] ). Verdict sheets may not be utilized to provide legal instruction to a deliberating jury; such instruction is to be provided by the trial court in its jury charge (see CPL 310.30 [stating that during deliberations “the jury may request the court for further instruction or information with respect to the law” and the court, upon notice to and in the presence of the People and the defense, “must give such requested information or instruction as the court deems proper”] ). Inclusion of legal instructions on a verdict sheet runs contrary to the statute's intended purpose of “ facilitat[ing] an orderly and intelligent deliberative process” because it enhances the risk

that the jurors will perceive the annotation as having special significance as opposed to merely assisting them in distinguishing among the counts.

The annotations here could not have been interpreted by the jury as being intended for any purpose other than identifying the individual stores defendant and his codefendants were alleged to have frequented or the banks relative to certain identity theft counts. Given the number of counts, coupled with the fact that the offenses occurred at different locations at different times (and, in some instances, on different dates), the trial court appropriately included the...