People v. Sanders
| Citation | 523 N.Y.S.2d 444,517 N.E.2d 1330,70 N.Y.2d 837 |
| Parties | , 517 N.E.2d 1330 The PEOPLE of the State of New York, Respondent, v. Herman SANDERS, Appellant. |
| Decision Date | 19 November 1987 |
| Court | New York Court of Appeals Court of Appeals |
Paul L. Gruner, Public Defender (Denise Y. Dourdeville, Kingston, of counsel), for appellant.
Michael Kavanagh, Dist. Atty. (Joan Lamb, Kingston, of counsel), for respondent.
The order of the Appellate Division, 127 A.D.2d 937, 512 N.Y.S.2d 528, should be reversed and a new trial ordered.
Defendant, who was convicted of second degree assault, as a second felony offender, complains that it was error for the trial court, after its charge in the assault trial, to furnish the jury, on its request and over defense counsel's objection, with a copy of the actual text of a pertinent statute. The Appellate Division found this to be error, as the District Attorney concedes, but held it harmless and affirmed defendant's conviction. We disagree.
The consent of defense counsel is an "absolute precondition" to furnishing the jury with the text of a statute (People v. Owens, 69 N.Y.2d 585, 590, 516 N.Y.S.2d 619, 509 N.E.2d 314; CPL 310.30), because "questions may arise concerning which sections of pertinent statutory material should be given to the jury" (Mem. of Office of Court Administration, 1980 McKinney's Session Laws of N.Y., at 1967; People v. Owens, supra ). That is precisely defendant's point on this appeal, i.e., the statute submitted, section 137(5) of the Correction Law referred only to the permissible use of force by correction officers without considering his defense of justification.
The distribution of the statute to the jury without counsel's consent is prohibited by CPL 310.30 and, like the distribution of written excerpts of a jury charge considered in Owens (supra), the error cannot be deemed harmless (accord, People v. Owens, supra, at 591-592, 516 N.Y.S.2d 619, 509 N.E.2d 314).
Defendant also claims error because the minutes of the victim's testimony, after he was recalled by the Grand Jury, were lost and had to be reconstructed. The lost testimony did not relate to the incident itself but to defendant's claim of his on-going harassment by correction officers. Reconstruction was undertaken by having a grand juror recall the victim's testimony but because the testimony was given in defendant's absence, he was not able to challenge her recollection of it. The testimony was limited and general, however, and any potential...
To continue reading
Request your trial
-
Jefferson v. State Of Md..
...in a complex case), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 803, 42 L.Ed.2d 820 (1975). But see People v. Sanders, 70 N.Y.2d 837, 523 N.Y.S.2d 444, 517 N.E.2d 1330, 1330-31 (1987) (reversing where trial court gave the jury the text of a statute without consent of defense counsel as requi......
-
Anderson v. Keane
...619, 509 N.E.2d 314; People v. Wood, 66 N.Y.2d 374, 379, 497 N.Y.S.2d 340, 488 N.E.2d 86 (1985); People v. Sanders, 70 N.Y.2d 837, 838, 523 N.Y.S.2d 444, 445, 517 N.E.2d 1330 (1987). Thus, both the substantive rule of law and a defendant's absolute entitlement to a new trial if an annotated......
-
State v. Covert
...may arise concerning which sections of pertinent statutory material should be given to the jury.'" People v. Sanders, 70 N.Y.2d 837, 838, 523 N.Y.S.2d 444, 517 N.E.2d 1330 (1987) (citations omitted). Therefore, we find that the judge's submission of the actual text of the statute was in err......
-
People v. Damiano
...1013, 565 N.Y.S.2d 754, 566 N.E.2d 1159; People v. Nimmons, 72 N.Y.2d 830, 530 N.Y.S.2d 543, 526 N.E.2d 33; People v. Sanders, 70 N.Y.2d 837, 523 N.Y.S.2d 444, 517 N.E.2d 1330). The primary issue, presented by the People's appeal, is whether, in the absence of the parties' consent or an obj......