People v. Rivera

• Decision Date: 10 June 2014
• Docket Number: No. 117,117
• Citation: 993 N.Y.S.2d 656,2014 N.Y. Slip Op. 04115,23 N.Y.3d 827,18 N.E.3d 367
• Parties: The PEOPLE of the State of New York, Appellant, v. Anner RIVERA, Respondent.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 827

18 N.E.3d 367

993 N.Y.S.2d 656

2014 N.Y. Slip Op. 04115

The PEOPLE of the State of New York, Appellant

v.Anner RIVERA, Respondent.

No. 117

Court of Appeals of New York.

June 10, 2014.

Charles J. Hynes, District Attorney, Brooklyn (Adam M. Koelsch and Leonard Joblove of counsel), for appellant.

Lynn W.L. Fahey, Appellate Advocates, New York City (Kathleen Whooley of counsel), for respondent.

OPINION OF THE COURT

GRAFFEO, J.

The primary issue before us is whether the trial court's violation of defendant's right to be present during a supplemental jury instruction to a single juror constitutes a mode of proceedings error entitling defendant to a new trial. We conclude that, under the circumstances of this case, it does and therefore affirm.

Andres Garcia shot a friend of defendant Anner Rivera five or six times and then allegedly pointed the gun at defendant, who fired back and killed Garcia. After defendant was indicted for intentional murder (see Penal Law § 125.25 [1 ] ) and weapon possession (see Penal Law § 265.03[1][b] ; [3] ), he asserted that he had shot Garcia in self-defense. At defendant's request, the court instructed the jury on the defense of justification for each count (see CJI2d [NY] Penal Law § 35.15 ).

On the second day of deliberations, the jury sent a series of notes seeking further explanation of the meaning of “justified” and inquiring as to “when exactly by law” it could consider defendant to be in “imminent danger.” Counsel and the court agreed to advise the jury that this was a question of fact for jury determination. During the instruction, one juror commented that this was the jury's “main complication” and the court responded by encouraging the jury to continue deliberations.

Soon after, an off-the-record bench conference was held between the judge, prosecutor and defense counsel. When the record resumed, the judge stated that juror number 11 had requested to speak with the court and, with the consent of the attorneys, he would hear the juror's concerns on the record in the robing room. There is no indication that defendant was present for or aware of his lawyer's acquiescence to this procedure. The following exchange then occurred in the robing room and outside the presence of defendant and counsel:

“JUROR # 11: My question is in relation to that question. I just want to know by the law, when can we be considered to deem defendant, I guess, responsible? That's the big issue with some of us.

“THE COURT: That's understandable, but I can't, there is no legal definition other than what I've given you. All the rest depends on an interpretation of the evidence, as I said, in the courtroom. This is a fact question for you to determine what the facts are from the evidence and make your determination. There is no more help I can give you.

“JUROR # 11: It's like the facts say both, say both, but more or less one or the other if depending upon when certain people are saying well, it's considered one's right before the actions took place, others are saying it's considered once they arrived to the scene that you could say that you should determine and that's the thing we really—

“THE COURT: You have to work it out among yourselves and come to a determination that all of you feel comfortable with, so you just have to just work it out, look at the evidence and, you know, evaluate what you've heard and make a decision....

“THE COURT: I think that our discussion here should remain between us and basically—

“JUROR # 11: Basically what you covered in the courtroom.

“THE COURT: It's exactly what I said in the courtroom. I can't give you any more guidance than that.”

Upon reentering the courtroom, the judge informed the attorneys that juror number 11 had requested “guidance” regarding when someone could be considered to be in “imminent danger.” The court summarized its response to the juror and stated that the colloquy was available for readback. Realizing that defendant was absent, the court had defendant returned to the courtroom, again gave a condensed version of the discussion, and explained that the transcript was available for review. Neither counsel voiced an objection or requested a readback.

The jury acquitted defendant of murder and manslaughter, but convicted him of second-degree criminal possession of a weapon (see Penal Law § 265.03[3] ). The Appellate Division reversed and granted defendant a new trial, holding that the robing room colloquy constituted a mode of proceedings error (102 A.D.3d 893, 894, 958 N.Y.S.2d 222 [2d Dept.2013] ). A Judge of this Court granted the People leave to appeal (21 N.Y.3d 1008, 971 N.Y.S.2d 260, 993 N.E.2d 1283 [2013] ).

Typically, preservation is a prerequisite to our appellate review, which is limited to questions of law (see N.Y. Const., art. VI, § 3 [a]; CPL 470.05, 470.35 ; People v. Patterson, 39 N.Y.2d 288, 294–296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], aff'd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ). In criminal cases, however, we have long applied a “very narrow” exception to the requirement of a timely objection with respect to a limited class of errors that “go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted” (People v. Kelly, 5 N.Y.3d 116, 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179 [2005] ; see People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610 [1987], rearg. denied, 69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363 [1987] ; Patterson, 39 N.Y.2d at 294–296, 383 N.Y.S.2d 573, 347 N.E.2d 898 ). As such, these “mode of proceedings” errors are “immune from the requirement of preservation” (Kelly, 5 N.Y.3d at 120, 799 N.Y.S.2d 763, 832 N.E.2d 1179 ; see People v. Collins, 99 N.Y.2d 14, 17, 750 N.Y.S.2d 814, 780 N.E.2d 499 [2002] ).

A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury (see CPL 260.20 ; People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660 [1990] ; Mehmedi, 69 N.Y.2d at 760–761, 513 N.Y.S.2d 100, 505 N.E.2d 610 ; People v. Ciaccio, 47 N.Y.2d 431, 436–437, 418 N.Y.S.2d 371, 391 N.E.2d 1347 [1979] ). This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 N.Y.2d at 760, 513 N.Y.S.2d 100, 505 N.E.2d 610 ; see Collins, 99 N.Y.2d at 17, 750 N.Y.S.2d 814, 780 N.E.2d 499 ).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30 ; see Collins, 99 N.Y.2d at 17, 750 N.Y.S.2d 814, 780 N.E.2d 499 ). We have consistently held that a defendant's absence during nonministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review—even absent an objection or where defense counsel has consented to the procedures used (see Collins, 99 N.Y.2d at 17, 750 N.Y.S.2d 814, 780 N.E.2d 499 ; People v. Cain, 76 N.Y.2d 119, 124, 556 N.Y.S.2d 848, 556 N.E.2d 141 [1990] ; Harris, 76 N.Y.2d at 812 n., 559 N.Y.S.2d 966, 559 N.E.2d 660 ; Mehmedi, 69 N.Y.2d at 760, 513 N.Y.S.2d 100, 505 N.E.2d 610 ).

The People argue that reversal is not required in this case because, even assuming that a mode of proceedings error occurred, it was substantially cured by the trial court. Defendant counters that “curability” is antithetical to the concept of mode of proceedings errors and asserts that the purported cure here was insufficient.

In People v. Cain, 76 N.Y.2d 119, 556 N.Y.S.2d 848, 556 N.E.2d 141 (1990), the trial court engaged in a robing room colloquy with a single juror in the presence of the attorneys—but not the accused—during which the court repeated to the juror a substantive instruction previously given to the entire jury, As in this case, defense counsel did not object to the defendant's absence. We concluded that the robing room discussion violated CPL 310.30 because the defendant had an absolute right to be present and therefore, the error “man-date[d] reversal” without regard to whether any prejudice flowed and despite the presence and consent of defense counsel (id. at 124, 556 N.Y.S.2d 848, 556 N.E.2d 141 ). We find Cain to be controlling here.

Whether defendant's presence may have had an impact on the court's colloquy with a deliberating juror—as opposed to, for example, a discussion between the court and counsel—is irrelevant under the unequivocal mandate of CPL 310.30 and Cain (see Collins, 99 N.Y.2d at 18–19, 750 N.Y.S.2d 814, 780 N.E.2d 499 ; Cain, 76 N.Y.2d at 124, 556 N.Y.S.2d 848, 556 N.E.2d 141 ; Mehmedi, 69 N.Y.2d at 760, 513 N.Y.S.2d 100, 505 N.E.2d 610 ; compare People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg. denied, 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ). Rather, our precedent recognizes only one clear exception to the defendant's right to be present under CPL 310.30, which is actually not an exception at all—namely, there is no violation when a communication is ministerial and therefore does not fall within the ambit of a supplemental jury instruction (see Collins, 99 N.Y.2d at 17–18, 750 N.Y.S.2d 814, 780 N.E.2d 499 ; People v. Hameed, 88 N.Y.2d 232, 240–241, 644 N.Y.S.2d 466, 666 N.E.2d 1339 [1996], cert. denied, 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 [1997] ; Harris, 76 N.Y.2d at 812, 559 N.Y.S.2d 966, 559 N.E.2d 660 ).

Here, as in Cain, juror number 11's questions requested further substantive instruction on a primary issue in the case—the application of the justification defense. Although the trial court initially informed the juror that it had...