People v. Mason

• Decision Date: 29 February 2000
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>RASHAWN MASON, Also Known as DARREL ISAAC, Appellant.
• Court: New York Supreme Court — Appellate Division

263 A.D.2d 73

706 N.Y.S.2d 1

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.RASHAWN MASON, Also Known as DARREL ISAAC, Appellant.

NARDELLI, J. P.

February 29, 2000.

Richard Nahas of counsel (Rona Feinberg on the brief; Robert M. Morgenthau, District Attorney of New York County, attorney), for respondent.

Paul Wiener of counsel, New York City (M. Sue Wycoff, attorney), for appellant.

ELLERIN and BUCKLEY, JJ., concur with NARDELLI, J. P.; SAXE, J., dissents in a separate opinion.

OPINION OF THE COURT

NARDELLI, J. P.

The issue raised in this appeal concerns whether a fundamental error of constitutional law concerning the defendant's right to testify, espoused by defense counsel and adopted by the trial court, which inexorably led to an arbitrary and confusing series of events, ultimately resulted in prejudice to defendant which cannot be deemed harmless and which is sufficient to warrant a new trial.

Defendant was charged, pursuant to New York County Indictment No. 10114/95, filed on October 25, 1995, with one count of criminal possession of a weapon in the second degree (Penal Law § 265.03) and two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [3], [4]). Defendant's trial commenced before a jury on December 11, 1996 and on December 18, 1996, the jury convicted defendant as charged. On April 1, 1997, defendant was sentenced, as a second violent felony offender, to concurrent terms of 10 years on the first count and seven years on the remaining counts.

At trial, New York City Police Officers Peter Stanisch and Roy Williams testified that at approximately 11:50 P.M. on October 11, 1995, they were on routine patrol in a marked police car on 146th Street near Amsterdam Avenue when they saw an unidentified woman running in the street toward their patrol car. The woman pointed toward defendant, who was pursuing her, and yelled "[h]e has a gun. He has a gun." Defendant, who was approximately 40 feet away from the patrol car, stopped, made a motion "like [he was] discarding [an] object," turned, and ran in the opposite direction.

The officers gave pursuit and, after losing sight of defendant for less than a minute, Officer Williams glanced in his rearview mirror and noticed defendant lying under a parked car. The officers handcuffed and frisked defendant and recovered an empty holster from defendant's back pocket. Officer Williams thereafter directed other officers to the general area where he had seen defendant discard an object and Officer Gilbert Rivera recovered a loaded semiautomatic handgun from under a parked car.

A ballistics expert, Detective Richard Sossa, testified that the gun recovered from the street was operable, that it contained five live rounds of ammunition, and that its serial number had been cut out. Detective Sossa also testified that the holster recovered from defendant had been manufactured for semiautomatic weapons.

At the close of the People's case, with the jury out of the courtroom, defendant informed the court that he wished to testify and that he had advised his attorney as to this, but that counsel had disagreed. The court noted that if defendant took the stand he could be cross-examined regarding statements made after his arrest, in which defendant "infer[ed] that [he was] guilty." The court also noted that he "commend[ed] counsel for her courage" in making a "very wise decision" not to allow defendant to testify. The court then directed the parties to proceed and defendant, not counsel, noted his objection for the record.

Shortly after the jury returned to the courtroom, the court directed counsel to approach the bench and stated: "This is a very delicate situation. He says he wants to testify. I mean, generally speaking he has a right to testify. You feel that you as his lawyer have advised him not to testify but isn't it ultimately his decision even though it might be over your objection?"

Defense counsel responded that she did a great deal of "soul searching" and had also conducted research and spoken to several Judges who advised her that "ultimately the defense is my responsibility." The prosecutor interjected his agreement and the court held that it was not the court's responsibility to order the defendant to testify. The court further held that: "[U]nder the circumstances since you think it's in his best interests given what we know maybe [sic] revealed upon his cross examination, that I will go with your judgment * * * I don't think that the rule that he must testify is entirely absolute and this case may be unique enough to amplify why it shouldn't be entirely absolute."

Defense counsel rested her case without calling defendant and then delivered her summation. Immediately after counsel concluded, defendant addressed the jury and stated: "That's not true. They wouldn't allow me to get on the stand and tell my side of the story. I have witnesses that I wanted you to hear. They don't want to allow me to get on the stand and tell you my side of the story. I was never chasing anybody. I was never under no car. They wouldn't allow me to tell you—they wouldn't allow me to tell you my side of the story."

Following defendant's outburst, the court inquired of defendant as to whether he still wanted to testify. After receiving an affirmative reply, a short recess was directed whereupon defense counsel stated, in the presence of the jury, that the court's decision to allow defendant to testify was over her objection.

Defendant subsequently testified that he and a friend were sitting on a car on 146th Street when police officers approached and searched them. After allowing his friend to leave, the officers showed defendant a gun and told him he had dropped it and that he was being arrested for gun possession. Defendant also denied telling one of the arresting officers that he "wasn't going to shoot her. You don't know what she did to me" and conceded that he had previously been convicted of two felonies and two misdemeanors, and had used aliases in the past.

Officer Stanisch, in rebuttal, testified that defendant told him that the woman he was chasing was named Gloria, that she was his wife, that she was a crack addict, that defendant had chased her because she had "pissed [him] off, and that he wasn't going to hurt her and only wanted to scare her." At the conclusion of the testimony, defense counsel, for the second time, and the prosecutor, delivered summations, following which defendant was convicted and sentenced as noted above.

One of the fundamental precepts of due process is that a defendant in a criminal proceeding has the right to testify, which right is guaranteed under both the Federal and New York State Constitutions (US Const 14th Amend; NY Const, art I, § 6; People v Burke, 176 AD2d 1000, 1001, lv denied 79 NY2d 825; People v Harami, 93 AD2d 867; Spradling v Texas, 455 US 971, 973).

It is also well established that a defendant, upon accepting the assistance of counsel, retains authority only over certain fundamental decisions regarding the case, such as "whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal" (People v White, 73 NY2d 468, 478, cert denied 493 US 859; see also, People v Colon, 90 NY2d 824, 825; People v Cassas, 84 NY2d 718, 723; Jones v Barnes, 463 US 745, 751).

Thus, it is clear in this case that the court's rulings in which it endorsed the argument of defense counsel and held that counsel, and not defendant, was ultimately responsible for the decision as to whether defendant would testify in his own behalf, were in error. The People, however, now maintain that such error was harmless and was cured when the court ultimately permitted him to testify after his outburst, subsequent to his attorney's summation and over his counsel's objection. We disagree.

The error in this case was clearly of a constitutional nature and in order for such error to be deemed harmless, there must be no reasonable possibility that the error might have contributed to defendant's conviction and it must be found harmless beyond a reasonable doubt (see, People v Crimmins, 36 NY2d 230, 237; People v Hoyle, 211 AD2d 973, 974, lv denied 86 NY2d 736; People v Khan, 200 AD2d 129, 139, lv denied 84 NY2d 937).

Section 260.30 of the Criminal Procedure Law sets forth the order in which a jury trial is to proceed, but "the common-law power of the trial court to alter the order of proof `in its discretion and in furtherance of justice' remains at least up to the time the case is submitted to the jury" (People v Olsen, 34 NY2d 349, 353; see also, People v Washington, 71 NY2d 916, 918; People v Braxton, 254 AD2d 365, lv denied 93 NY2d 850). In the absence of a compelling reason to do so, the order of trial prescribed by CPL 260.30 should be adhered to (People v Fama, 212 AD2d 542, 543, lv denied 86 NY2d 734; People v Farrow, 176 AD2d 130, 131, lv denied 79 NY2d 826).

In this matter, the court's failure to follow the statutorily delineated order of trial had its genesis solely in the court's own fundamental error with regard to defendant's basic due process right to testify, and we find the deviation from the prescribed order of trial failed to cure the court's error. We cannot, upon the record before us, deem the error in refusing to permit defendant to testify at the proper stage of the trial to be harmless beyond a reasonable doubt.

Moreover, the trial court's actions, which resulted in defendant testifying under haphazard and somewhat confusing conditions, resulted in enormous prejudice to defendant. In order to procure his right to testify, defendant told the jury, in part, "[t]hey wouldn't allow me to get on the stand and tell my side of the story * * * They don't want to allow me to get on the stand and tell you my side of the story." It appears likely, after the foregoing outburst, that the jury may very well have concluded that neither the court, nor his own attorney, had faith in his story. This was...