People v. Miller
| Citation | 2012 N.Y. Slip Op. 02127,944 N.Y.S.2d 433,967 N.E.2d 656,18 N.Y.3d 704 |
| Court | New York Court of Appeals |
| Decision Date | 22 March 2012 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Jeffery H. MILLER, Respondent. |
OPINION TEXT STARTS HERE
Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for respondent.
We have held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20(2) ( see People v. Spivey, 81 N.Y.2d 356, 361–362, 599 N.Y.S.2d 477, 615 N.E.2d 961 [1993];People v. Damiano, 87 N.Y.2d 477, 640 N.Y.S.2d 451, 663 N.E.2d 607 [1996] ). The Legislature, responding to these decisions, amended the statute to expand what is permitted in the verdict sheet, but it left the basic principle unchanged: Nothing of substance can be included that the statute does not authorize. Because that rule was violated in this case, our previous holdings require that defendant's conviction be set aside.
Defendant was charged with second-degree murder and several other crimes as a result of the shooting of his former girlfriend.At defendant's request, the court submitted to the jury his claim that he acted under the influence of extreme emotional disturbance—a claim which, if accepted, would result in his conviction for first-degree manslaughter rather than murder (Penal Law § 125.25[1][a]; § 125.20[2] ). Extreme emotional disturbance is an affirmative defense, and the defendant has the burden of establishing it by a preponderance of the evidence (Penal Law § 125.25[1] [a]; § 25.00[2] ).
The trial court submitted a six-page verdict sheet to the jury. The first page is the one in issue here. That page provided space for the jurors to record their verdict on the second-degree murder charge, and instructed them that if their verdict on that count was guilty they must consider the extreme emotional disturbance defense and complete the rest of the page. The form then asked: “Has the Defendant established by a preponderance of the evidence that he acted under Extreme Emotional Disturbance?” Defendant objected to this language, but the trial court refused to remove it.
The jury convicted defendant of second-degree murder and found that the extreme emotional disturbance defense had not been established. The Appellate Division reversed and ordered a new trial, holding that there was a violation of CPL 310.20(2) and that harmless error analysis could not be applied ( People v. Miller, 73 A.D.3d 1435, 901 N.Y.S.2d 444 [4th Dept.2010] ). A Judge of this Court granted the People leave to appeal, and we now affirm.
CPL 310.20 says, in relevant part:
“Upon retiring to deliberate, the jurors may take with them: ...
Until 1996, the statute did not contain the final (“Whenever”) sentence; it ended with “verdicts thereon.” In several cases decided under the earlier version of the statute, we ordered a new trial where a verdict sheet had been submitted to the jury that, in addition to identifying the crimes charged, listed some of the crimes' statutory elements ( People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33 [1988];People v. Taylor, 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882 [1990];People v. Kelly, 76 N.Y.2d 1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159 [1990];see also People v. Sotomayer, 79 N.Y.2d 1029, 1030, 584 N.Y.S.2d 431, 594 N.E.2d 925 [1992] [] ). In Spivey, we said that “unless the parties agree” the submission of such a verdict sheet “is reversible error” (81 N.Y.2d at 361, 599 N.Y.S.2d 477, 615 N.E.2d 961). And in Damiano we rejected, over a strong dissent, the idea that an error of this kind could “be deemed harmless”; that approach, we said, would be inconsistent with “our decisions strictly construing this provision” (87 N.Y.2d at 484–485, 640 N.Y.S.2d 451, 663 N.E.2d 607).
In this case, the People do not dispute that the law as it stood at the time of Spivey and Damiano would require reversalof defendant's conviction. They argue, however, that a 1996 amendment to CPL 310.20(2) (L. 1996, ch. 630, § 2) alters that conclusion in two ways: by authorizing the language that the judge submitted to the jury here, and by permitting the use of harmless error analysis. We conclude that the amendment did neither of these things.
The 1996 amendment added what is now the last sentence of CPL 310.20(2). That sentence (later changed in a way irrelevant to this case) permits a verdict sheet to include “the dates, names of complainants or specific statutory language ... by which the counts may be distinguished.” This does alter the holding in Damiano and the cases that Damiano followed, but it does not permit what the trial court did here. The court added not “statutory language ... by which the counts may be distinguished,” but an instruction on burden of proof. Nothing in CPL 310.20(2) can be read to authorize this.
Nor did the 1996 amendment to CPL 310.20(2) address the issue of harmless error. It left intact the holding of Damiano that harmless error analysis cannot be applied where a verdict sheet exceeds the limitations that section 310.20(2) imposes. The Appellate Division was therefore correct in holding that Damiano, and the cases on which Damiano was based, require reversal of defendant's conviction.
In arguing to the contrary, the People rely not on the statutory language contained in the 1996 amendment, but on language in the memorandum by which Governor Pataki expressed his approval of that amendment (Governor's Approval Mem., Bill Jacket, L. 1996, ch. 630, at 7–9, reprinted in 1996 McKinney's Session Laws of N.Y., at 1907–1909). The Approval Memorandum acknowledges that “from time to time” judges might in the future place notations on verdict sheets beyond what the newly amended statute would permit (Bill Jacket, L. 1996, ch. 630, at 9, 1996 McKinney's Session Laws of N.Y., at 1909). The memorandum adds:
( Id.)
The implicit reasoning of the Approval Memorandum—reasoning the People urge us to follow here—is this: In Owens, in the passage the Approval Memorandum cites, we held that an error in submitting portions of a written charge to the jury was not subject to harmless error analysis because “the distribution of written instructions to the jury is not expressly authorized by law” (69 N.Y.2d at 591–592, 516 N.Y.S.2d 619, 509 N.E.2d 314). From this it is inferred that Spivey and Damiano rejected harmless error analysis because annotated verdict sheets were also “not expressly authorized by law” (though neither Spivey nor Damiano, nor any other case involving annotated verdict sheets, says this). And, the reasoning concludes, since some verdict sheet annotations are authorized by law under the 1996 amendment, an error as to what annotations are permissible may now be deemed harmless.
We find this reasoning too attenuated to justify rejecting Spivey's and Damiano's holding on the harmless error issue. We recognize that, as the dissent points out, it was the Governor who proposed the 1996 amendment, and his view of what it means is relevant legislative history. But legislative history cannot supply something that is just not in the statute.
If the Legislature intended harmless error analysis to be applied in cases like this, it had only to say so. It could have used the language that it adopted in another context, to overrule our holding in People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011 (1986), in which we held that a failure to deliver Rosario material to defense counsel “constitutes per se error requiring that the conviction be reversed.” The Legislature responded by enacting CPL 240.75, which says that such a failure does not justify reversal “in the absence of a showing ... that there is a reasonable possibility that the non-disclosure materially contributed to the result.”
By contrast, the legislative response to Spivey and Damiano says not a word about harmless error. We adhere to the holdings of those cases that harmless error analysis is inappropriate where the limits imposed on verdict sheet annotations by CPL 310.20(2) have been exceeded.
Accordingly, the order of the Appellate Division should be affirmed.
I would uphold the conviction because the complained-of error was harmless. The majority rejects this option on the ground that the Legislature's amendment of CPL 310.20 in 1996 “left intact” our precedents holding “that harmless error analysis cannot be applied where a verdict sheet exceeds the limitations that section 310.20(2) imposes” (majority op. at 708, 944 N.Y.S.2d at 435, 967 N.E.2d at 658). On the contrary, the 1996 amendment was specifically intended to countermand these and other precedents thought to create “hyper-technical...
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People v. Miller
...18 N.Y.3d 704967 N.E.2d 656944 N.Y.S.2d 4332012 N.Y. Slip Op. 02127The PEOPLE of the State of New York, Appellant,v.Jeffery H. MILLER, Respondent.Court of Appeals of New York.March 22, [944 N.Y.S.2d 433]Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appell......