People v. Moore

• Citation: 513 N.Y.S.2d 2,128 A.D.2d 424
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard MOORE, Defendant-Appellant.
• Decision Date: 12 March 1987
• Court: New York Supreme Court Appellate Division

Page 2

513 N.Y.S.2d 2

128 A.D.2d 424

The PEOPLE of the State of New York, Respondent, v. Richard MOORE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 12, 1987.

S.R. Kaplan, J. Gutman, for respondent.

E.J. Stein, for defendant-appellant.

Richard Moore, pro se.

Before SANDLER, J.P., and CARRO, ASCH, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Bernard Fried, J.), rendered July 12, 1985, convicting defendant upon a jury verdict, of two counts of murder in the second degree and one count of burglary in the first degree, and sentencing him to concurrent, indeterminate terms of imprisonment of from 25 years to life on the two murder convictions, and 12 1/2 to 25 years on the burglary conviction, unanimously affirmed.

It was error for the trial court to submit to the jury, during deliberations, copies of the felony murder counts of the indictment. However, the error was harmless, and did not prejudice the defendant or deny him a fair trial in view of the overwhelming evidence of defendant's guilt. During deliberations, the jury requested a copy of the second and third counts of the indictment. Because the indictment had been read to the jury on a number of occasions, the court permitted the jury to receive a photocopy of the felony murder counts, without any other portions of the indictment. Before providing a copy of those counts, the court clearly and carefully reminded the jury that the indictment was not evidence.

Defendant relies on People v. Townsend, 111 A.D.2d 636, 490 N.Y.S.2d 201 (1st Dept, 1985), 112 A.D.2d 69, 490 N.Y.S.2d 201 (1st Dept, 1985), affd. 67 N.Y.2d 815, 501 N.Y.S.2d 638, 492 N.E.2d 766 (1986) and People v. Compton, 119 A.D.2d 473, 500 N.Y.S.2d 685 (1st Dept, 1986). However, these cases concern the submission of written jury instructions, not the issue of whether a copy of an indictment can be submitted to the jury. Appellant made the unwarranted extrapolation that the potential for prejudice attendant upon the jury's receipt of written instructions would be present upon its receipt of a copy of the indictment. The sole basis of the Townsend decision was that the distribution of written preliminary instructions encouraged premature deliberation. Since the jury in the present case received the written material after the court had charged the jury, premature deliberation was not at issue. Cf., People v. Brooks, 126 A.D.2d 422, 510 N.Y.S.2d 126.

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