People v. Nelson

Decision Date05 April 2016
Citation53 N.E.3d 691,2016 N.Y. Slip Op. 02554,33 N.Y.S.3d 814,27 N.Y.3d 361
PartiesThe PEOPLE of the State of New York, Respondent, v. Joel NELSON, Appellant.
CourtNew York Court of Appeals Court of Appeals

Lynn W.L. Fahey, Appellate Advocates, New York City (Alexis A. Ascher of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn (Morgan J. Dennehy, Leonard Joblove and Victor Barall of counsel), for respondent.



, J.

Criminal trials naturally provoke an excess of emotion. This may lead to potential disruption by spectators at trial. Nonetheless, it is the obligation of trial courts to protect a defendant's right to a fair trial, and to ensure that conduct by spectators does not impair that right. On this appeal, we conclude that although the trial court should have taken action when defense counsel objected to T-shirts worn by certain spectators that bore a photograph of the deceased victim, defendant was not deprived of a fair trial.


Defendant's conviction stems from the shooting of two roommates, Mark Maldonado and Leo Walton, in their Brooklyn apartment. Maldonado testified at trial that defendant was angry with him because after defendant and Maldonado had been arrested together for shoplifting, Maldonado was released on bail, but defendant remained in jail for several months. Maldonado attempted to explain to defendant that he had tried to secure defendant's release, but defendant was skeptical.

On March 20, 2008, defendant asked Maldonado if he could stay the night at Maldonado's apartment, and Maldonado agreed. When they arrived at the apartment, Maldonado's roommate, Walton, was at home. Maldonado made defendant a drink and left defendant in the living room of the apartment with Walton. Maldonado went into the bedroom with his girlfriend and locked the bedroom door. After approximately 15 minutes, Maldonado heard three gunshots in the living room. Maldonado told his girlfriend to seek cover next to the bed. Defendant then kicked in the bedroom door and shot Maldonado once in the head. Maldonado attempted to seek shelter behind a closet door, but defendant shot him three more times, striking him in his chest and legs. Defendant then fled the apartment.

Walton had been shot three times in the back of the head and died from his injuries. Maldonado survived after receiving medical treatment. The People's proffered motive at trial was that defendant shot Maldonado over his anger at being left in jail and killed Walton to eliminate a witness.

Defendant was apprehended two days later, and he gave oral, written, and videotaped statements to police. In those statements, he claimed that he had heard rumors that Maldonado believed him to be a “snitch” and wanted to kill him. When defendant confronted Maldonado about the rumors, Maldonado assured him that they were not true and invited defendant back to his apartment. Defendant stated that once they arrived there, Maldonado fired multiple shots at defendant with a .22 caliber handgun, but defendant ducked, and the shots hit Walton instead. According to defendant, he then got up from the floor, pulled from his waistband the .380 caliber handgun he was carrying, and followed Maldonado into the bedroom, where he fired at Maldonado four times.

At trial, defendant raised a justification defense. The People presented evidence at trial, however, that was inconsistent with that defense. According to that evidence, the bullets recovered from the bodies of Walton and Maldonado, as well as the bullets found at the scene, were all fired from a .22 caliber handgun and could not have been fired from a .380 caliber weapon. All seven shell casings found at the scene were also fired from the same .22 caliber handgun.

On the last day of trial, after defense counsel's summation, counsel asked for a sidebar and noted that three members of Walton's family who were observing the trial were wearing T-shirts bearing Walton's photograph and the phrase “Remembering Leo Walton.” Counsel asked that the spectators be required to change their shirts and argued that they were trying to “inflame” or “influence” the jury. The prosecutor opposed the request.

The court refused to instruct Walton's family members to remove the shirts. The court noted that the spectators were seated quietly and had not drawn attention to themselves or their shirts. The court also stated that Walton's family members had worn the shirts on previous occasions during the trial but that counsel had not brought the shirts to the court's attention or requested any relief on those dates. When counsel protested that the shirts had not been worn before that day, the court found “as a matter of fact that one of the females has worn this shirt for at least three court dates.” The court characterized defense counsel's application as a “disingenuous” attempt to gain a strategic advantage before the People's summation.

The jury found defendant guilty of murder in the second degree for the death of Walton and assault in the first degree for the shooting of Maldonado. Before sentencing, defendant moved pursuant to CPL 330.30

to set aside the verdict. Defendant argued, among other things, that by wearing the T-shirts, Walton's family members had attempted to improperly influence the jury. The court denied the motion at sentencing, noting that the family members were seated in the second row of the gallery, that they had not called attention to themselves in any way, and that most of the family members were wearing an outer garment on top of the T-shirt.

The Appellate Division affirmed, with one Justice dissenting (People v. Nelson, 125 A.D.3d 58, 998 N.Y.S.2d 216 [2d Dept.2014]

). The Appellate Division was troubled by the trial court's failure to alert counsel to the issue when it first noticed the shirts, and stated that the “better course would have been to immediately inform Walton's family members that their conduct could potentially imperil the legitimacy of the trial, and give them an opportunity to voluntarily acquiesce to defense counsel's request, thus obviating the need for explicit direction from the trial court (id. at 63, 998 N.Y.S.2d 216

). The Court nevertheless declined to create a per se rule requiring reversal “whenever a spectator brings a depiction of a deceased victim into a courtroom” because “each particular instance of challenged conduct calls for a sui generis determination of its potential effect on the jury, made in light of the particular circumstances of the case (id. ). The Court held that, under the particular circumstances of the case, the trial court's determination “that the spectator conduct did not threaten the ability of the jury to remain impartial” was not error (id. at 64, 998 N.Y.S.2d 216 ).

The dissenting Justice agreed “that a per se rule compelling reversal in every case involving such a display is not tenable” (id. at 67, 998 N.Y.S.2d 216

[Dickerson, J., dissenting] ). The dissent disagreed, however, with the conclusion that defendant was not deprived of his fundamental right to a fair trial under the circumstances (see

id. at 70–71, 998 N.Y.S.2d 216 ).

The dissenting Justice granted defendant leave to appeal to this Court (2015 N.Y. Slip Op. 68346[U] [2d Dept.2015]

). We now affirm.


We first address the threshold issue whether defendant's contention is properly preserved for our review. Defendant contends that the trial court should have taken action not only upon defense counsel's objection, but also when the trial court first noticed the shirts, before counsel objected. Defendant asserts that this latter part of his contention is preserved for appellate review pursuant to CPL 470.05(2)

, which provides that a question of law is presented when, “in re[s]ponse to a protest by a party, the court expressly decide[s] the question raised on appeal.”

Defendant confuses the trial court's factual observations with a legal ruling. Upon defense counsel's objection to the shirts, the trial court made a factual observation that at least one member of Walton's family had worn the shirt on previous days. The trial court did not make a legal ruling that it had no obligation to act on those previous dates, nor did defendant argue that the trial court was obligated to take action sua sponte. Defendant did not, for example, move for a mistrial on the ground that the wearing of the shirts on previous days had deprived him of a fair trial. The language of CPL 470.05(2)

upon which defendant relies therefore is inapplicable.

Trial courts have the inherent authority and the affirmative obligation to control conduct and decorum in the courtroom, in order to promote the fair administration of justice for all (see generally Matter of Katz v. Murtagh, 28 N.Y.2d 234, 238–240, 321 N.Y.S.2d 104, 269 N.E.2d 816 [1971]

; People v. Mendola, 2 N.Y.2d 270, 276, 159 N.Y.S.2d 473, 140 N.E.2d 353 [1957] ; People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769 [1954] ; 22 NYCRR 100.3 [B][2] ). Furthermore, “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” (Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 [1978] ). It is the duty of the trial court to protect the defendant's right to a fair trial, and to ensure that spectator conduct does not impair that right, regardless of whether defense counsel has noticed or objected to such conduct. Nevertheless, even where the trial court has an affirmative obligation to take certain action in order to protect a fundamental constitutional right, we have required defendants to preserve any alleged error for appellate review (see People v. Alvarez, 20 N.Y.3d 75, 80–81, 955 N.Y.S.2d 846, 979 N.E.2d 1173 [2012]

, cert. denied 569 U.S. ––––, 133 S.Ct. 2004, 185 L.Ed.2d 867 [2013], and cert. denied sub nom.

George v. New York, 569 U.S. ––––, 133 S.Ct. 1736, 185 L.Ed.2d 796 [2013] ). Application of the preservation rule to spectator conduct provides the trial court with...

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