People v. Nazario

• Decision Date: 21 June 1990
• Citation: 147 Misc.2d 934,559 N.Y.S.2d 609
• Parties: The PEOPLE of the State of New York, v. Robert NAZARIO, Defendant.
• Court: New York Supreme Court

Page 609

559 N.Y.S.2d 609

147 Misc.2d 934

The PEOPLE of the State of New York, v. Robert NAZARIO, Defendant.

Supreme Court, Bronx County Criminal Term, Part 46.

June 21, 1990.

Angelo McDonald, Asst. Dist. Atty., Bronx, for the People.

Sol Kaplan, New York City, for defendant.

PHYLIS SKLOOT BAMBERGER, Justice:

One of the primary goals of a court's instructions on proof beyond a reasonable doubt is to distinguish for the jury between a reasonable doubt and doubts based on whim, prejudice, speculation or other vague reasons. People v. Malloy, 55 N.Y.2d 296, 303, 449 N.Y.S.2d 168, 434 N.E.2d 237 (1982); People v. Jones, 27 N.Y.2d 222, 226-27, 316 N.Y.S.2d 617, 265 N.E.2d 446 (1970); People v. Barker, 153 N.Y. 111, 114, 47 N.E. 31 (1897). ¹ The question raised by this case ² is whether the distinction between reasonable doubt and doubts based on other grounds must be explained by defining reasonable doubt as one based on the "evidence or lack of evidence." This phrase is frequently part of the reasonable doubt charge, and, as in this case, defense attorneys so anticipate its inclusion that they do not feel the need to request it. Nevertheless, this Court finds no New York Court of Appeals or Appellate Division, First Department, decision requiring the use of the phrase "evidence or lack of evidence" and declines to follow two Second Department cases, which appear to have been repudiated by a later decision of that court, as well as decisions of the Third and Fourth Departments based on the Second Department cases. Analysis of the precedents leads this Court to conclude that other language can make clear to the jury the necessary distinction while preventing the misuse of the concept by inappropriate arguments. This Court used the following as part of the reasonable doubt instruction:

A reasonable doubt is a doubt based on reason and it must be based on the evidence as it is presented. It follows that a reasonable doubt comes from the nature and the quality of the evidence in the case. You look at the evidence presented and you decide if it is sufficient or insufficient, not good enough, to prove the case. ³

As noted, there are no Court of Appeals decisions requiring the use of "evidence or lack of evidence" to explain reasonable doubt. In People v. Guidici, 100 N.Y. 503, 509, 3 N.E. 493 (1885), the trial court had charged:

You must understand what a reasonable doubt is. It is not a mere guess or surmise that the man may not be guilty, [sic] it is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence. A doubt for which some good reason arising from the evidence may be given.

In review, the Court of Appeals specifically noted the last quoted line but found it was not appropriate to focus on that line in deciding if there was error. The Court found the trial judge made the correct distinction between a doubt which would avail the prisoner from one which was merely vague and imaginary. It found the jury was correctly called upon "to weigh and consider the evidence, and if from a deficiency in proof, or inconclusiveness of testimony, any material fact was not established, there was then left a reasonable doubt arising from the evidence, and to the benefit of that the prisoner was entitled." Id. at 510, 3 N.E. 493. The Court concluded that consideration of the evidence conveyed the idea that insufficient evidence produces a reasonable doubt.

In People v. Barker, supra, 153 N.Y. 111, 115, 47 N.E. 31, the Court of Appeals considered the trial judge's instruction that:

A reasonable doubt, gentlemen, is not a mere whim, guess or surmise; nor is it a mere subterfuge to which resort may be had in order to avoid doing a disagreeable thing; but it is such a doubt as reasonable men may entertain, after a careful and honest review and consideration of the evidence in the case. It is a doubt founded in reason and coming from reason, or, as the learned counsel for the defense has well expressed it, a doubt coming from reason and which survives reason.

In Barker, a capital case in which all legal questions were subject to examination even absent objection, the Court held without any hesitation that "the first sentence [contains] an accurate legal definition of reasonable doubt...." Id. at 115, 47 N.E. 31. It was the second sentence that was given extensive analysis. Again, the Court found that telling the jury to analyze the evidence in the case conveyed the reasonable doubt definition.

In People v. Radcliffe, 232 N.Y. 249, 133 N.E. 577 (1921), the Court cited Barker as containing the approved language for a reasonable doubt instruction. Reasonable doubt, said the Court, was defined as a doubt "founded on the evidence after a fair, honest and conscientious consideration of all the evidence...." Id. at 252, 133 N.E. 577. [Emphasis in original.] The Court specifically concluded that the trial judge was not required to charge the jurors, as counsel had requested (Id. at 253, 133 N.E. 577), that a reasonable doubt may be founded on the evidence or lack of evidence.

The jurors were instructed that it was their duty to judge the facts and to weigh the evidence and that if they had the slightest doubt of the guilt of the defendants, so long as it was a reasonable doubt, founded on the evidence, it was their duty to acquit. We may assume that they possessed sufficient intelligence to understand that the court intended to tell them they were to consider not only the evidence that was given in the case but also whether there was an absence of material and convincing evidence. 'Any reasonable doubt founded on the evidence' means 'any reasonable doubt arising out of evidence or lack of evidence.' Defendants were not entitled to select the phraseology so long as the thought was once fairly expressed in the language of the judge.

Id. at 254, 133 N.E. 577. This decision was reaffirmed in People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959), in which the issue of the reasonable doubt charge was raised (see syllabus, Id. at 143, 182 N.Y.S.2d 361, 156 N.E.2d 69), but the Court of Appeals found it unnecessary to discuss the issue. The Court of Appeals affirmed the Appellate Division's holding it was not error to refuse to charge "evidence or lack of evidence" language and relying on Radcliffe. People v. Irrizari, 5 A.D.2d 881, 171 N.Y.S.2d 715 (2d Dept.1958).

The phrase "evidence or lack of evidence" was used in the charge given by the trial judge in People v. Jones, supra, 27 N.Y.2d 222, 225, 316 N.Y.S.2d 617, 265 N.E.2d 446. The Court reviewed only another portion of the charge, that defining reasonable doubt as one for which there was substantial reason. Notably, when discussing this portion of the instruction, the Court referred to Guidici as authority for defining reasonable doubt as a doubt for which some good reason arising from the evidence can be given. Id. at 226, 316 N.Y.S.2d 617, 265 N.E.2d 446. [Emphasis added.] The failure by the Court even to consider the "evidence or lack of evidence" language, and its favorable citation to Guidici, precludes the argument that Jones requires the lack of evidence language.

Jones is cited in People v. Malloy, supra, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237. In Malloy, the trial court instructed that a reasonable 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.'

Id. at 300, 449 N.Y.S.2d 168, 434 N.E.2d 237. The Court held it was not error to repeat this reasonable doubt instruction in response to a jury question and found this instruction to be neither confusing nor inaccurate. The citation to Jones was for the proposition that the instruction had to convey to the jury the difference between a reasonable doubt and one which is based on a whim, sympathy or other vague reason. Malloy is significant because it holds the language used was not inaccurate, but did not require its use. Malloy is also significant because it did not use the evidence or lack of evidence language, but the phrase "credible evidence or lack of credible evidence." The jury was thereby told to evaluate the evidence presented to determine if it should be accepted.

In People v. Mosley, 67 N.Y.2d 985, 502 N.Y.S.2d 993, 494 N.E.2d 98 (1986), the Court of Appeals was reviewing the trial judge's use of the phrase the "evidence is evenly balanced," which had been disapproved. Without specifically reviewing the use of the phrase evidence or lack of evidence, the Court held that language combined with other portions of the charge sufficiently avoided the confusion caused by "equal balancing" language. Again there was no requirement that the evidence or lack of evidence phrase be part of the charge.

After review of these cases, there is none requiring the use of the "evidence or lack of evidence" language, and all indicate that language is appropriate which makes the distinction between a reasonable doubt and a doubt based on whim. ⁴

Appellate Division decisions present a variety of rulings of the language to be used to define reasonable doubt. The earliest case in the line of precedents is People v. Friedland, 2 A.D. 332, 37 N.Y.S. 974, (1st Dept.1896). Friedland defined reasonable doubt as follows:

Such a doubt is not a mere guess or surmise that the man may not be guilty; it is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence. It is one which arises from the evidence and its character, or from the absence of satisfactory evidence in the case. If upon a consideration of all the evidence in the case, with such presumptions and inferences as fair-minded and intelligent men have a right to...