People v. Malloy

• Decision Date: 30 March 1982
• Parties: , 434 N.E.2d 237 The PEOPLE of the State of New York, Respondent, v. Joseph MALLOY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 168

449 N.Y.S.2d 168

55 N.Y.2d 296, 434 N.E.2d 237

The PEOPLE of the State of New York, Respondent, v. Joseph MALLOY, Appellant.

Court of Appeals of New York.

March 30, 1982.

Donald H. Zuckerman, New York City, for appellant.

Mario Merola, Dist. Atty. (Stuart L. Sanders, Asst. Dist. Atty., and Peter D. Coddington, New York City, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

The obligation of the trial court to advise the jury on the law includes the duty to respond meaningfully to requests for further instructions, which may require asking the jury to be more specific about their difficulty. Where, however, after considerable deliberation, the jury requests clarification concerning the meaning of reasonable doubt and the original instruction is adequate, it is not error for the Trial Judge, as he did here, to respond to the request by rereading that instruction. Nor can it be said on this record that the witnesses' in-court identifications had no bases independent of the earlier suggestive identification procedures. The order of the Appellate Division, 80 A.D.2d 793, 438 N.Y.S.2d 469, affirming defendant's conviction therefore should be affirmed.

Defendant was convicted after a jury trial of robbery in the first degree and unlawful imprisonment in the second degree. The charges arose out of the armed hijacking of a fur truck on March 30, 1978.

Victor Licciardi, the driver, and Dean and Jay Kopp were transporting the furs for their employer, Elko Processors, Inc., from Manhattan to a warehouse in Bronx County when they noticed a blue van closely following the truck. As the van pulled alongside, Jay Kopp saw the van's driver, later identified as defendant, pointing a gun at them. The van eventually forced the truck to a stop. Defendant ordered Licciardi to exit the van at gunpoint. Defendant, aided by his two accomplices, also persuaded Dean and Jay Kopp to leave the truck. The Kopp brothers were handcuffed and made to lie face down in the back of the van. Licciardi, meanwhile, was questioned by defendant concerning the truck's locks and alarm system and then was forced to join the others in the van. Licciardi observed defendant board the fur truck. The three captives were driven to Nassau County and released. They each described defendant to the Nassau County police.

During the New York City Police Department's investigation, the victims were interviewed further and participated in four photographic identification procedures between April 3 and May 17, 1978. The suppression court found the first two procedures to have been fair and nonsuggestive, but determined that the third and fourth displays were highly suggestive, having consisted in the main of surveillance pictures of defendant. The court nonetheless found that the three witnesses had independent bases for the subsequent lineup identifications and any in-court identifications to be made at trial. Defendant's motion to suppress the lineup and in-court identifications, therefore, was denied.

Defendant was convicted after trial. On appeal, the Appellate Division, by a divided court, affirmed. The dissenting Justice disagreed with the majority that Dean and Jay Kopp had independent bases for the identifications made after viewing the suggestive photograph arrays.

On this appeal, defendant again challenges the reliability of the witnesses' in-court identifications, contending that the procedures found to have been suggestive produced an indelible taint requiring suppression. Defendant also maintains that the trial court committed reversible error when it responded to the jury's request for further clarification of the term "reasonable doubt" by rereading the original charge. Neither argument is persuasive.

Disposing of defendant's first contention, this court cannot say that the finding of an independent basis for an in-court identification by each witness was erroneous as a matter of law. The inquiry necessarily is a factual one (see People v. Dickerson, 50 N.Y.2d 937, 431 N.Y.S.2d 453, 409 N.E.2d 927; People v. Whisby, 48 N.Y.2d 834, 424 N.Y.S.2d 344, 400 N.E.2d 286), involving an evaluation of the totality of circumstances (see Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247). As such, the determination that there existed an independent source for the subsequent identifications, left undisturbed by the Appellate Division, is beyond this court's power of review if supported by the record (People v. Adams, 53 N.Y.2d 241, 248, 440 N.Y.S.2d 902, 423 N.E.2d 379; People v. Thomas, 51 N.Y.2d 466, 475, 434 N.Y.S.2d 941, 415 N.E.2d 931; People v. Burrows, 46 N.Y.2d 957, 958, 415 N.Y.S.2d 410, 388 N.E.2d 1268; People v. Peterson, 40 N.Y.2d 1014, 1015, 391 N.Y.S.2d 530, 359 N.E.2d 1325). As can be seen, such support exists.

Similarly unavailing is defendant's claim concerning the inadequacy of the trial court's supplemental charge to the jury. In its original charge, the court made clear that the People have the burden of proving defendant's guilt beyond a reasonable doubt. In explaining that concept, the court stated that such doubt is "not a mere whim or guess or surmise. Nor is it a feeling that an accused may not be guilty. Nor is it proof beyond * * * all doubt or proof to a mathematical certainty, or scientific certainty. * * * It's a doubt for which you can conscientiously express a reason, based on logic and the credible evidence or lack of credible evidence." ¹ Defendant's objections to certain portions of that charge were overruled. ² In the afternoon of the second day of deliberations, the jury requested a reading of the cross-examination of Licciardi, all the testimony of the three detectives and "of the term 'beyond a reasonable doubt.' " The court asked the jury to consider making the request for testimony more specific.

While the jurors were considering their request, the Judge informed both counsel that he thought it best to give the original charge on reasonable doubt. Defendant renewed his previous objections with no success. The jury then returned and gave a more specific request for the trial testimony and "clarification of the term 'beyond a reasonable doubt.' " Following the rereading of the testimony, the court informed the jury that the best definition of reasonable doubt was contained in the original charge, which was then repeated. ³

The jury resumed deliberations at 3:40 p. m. About four hours later, the jury reported a deadlock of 10 votes to 2 against defendant on the identification issue. Defendant's motion for a mistrial was denied. The jury was summoned and the court gave a special supplemental instruction pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. At about 8:45 p. m., following a dinner break, the jury resumed deliberations; a verdict of guilty was reached at 9:45 p. m.

Defendant maintains, as he did at trial, that merely rereading the original charge was an inadequate response to the jury's request for clarification of the concept of reasonable doubt. In defendant's view, that error rendered the subsequent Allen charge coercive. We cannot agree.

It has long been the law in this State that the trial court, in responding to jury inquiries, must give meaningful supplemental instructions. In the seminal case, People v. Gonzalez, 293 N.Y. 259, 262, 56 N.E.2d 574, this court unequivocally stated that section 427 of the Code of Criminal Procedure, the predecessor to CPL 310.30, "leaves to the trial court no discretion whatever as to whether or not to answer a proper question from the jury, even though the original charge contains a correct answer to that same question." There, the jury made a specific inquiry concerning the critical element of premeditation, requesting aid in understanding the application of the law to the facts. The Trial Judge responded that he could not answer the question in the form tendered, and offered only to reread any portion of the charge the jury might request. As the Court of Appeals observed, the response "was no less than a refusal to...