People v. Sotomayer
| Decision Date | 06 May 1991 |
| Citation | 569 N.Y.S.2d 973,173 A.D.2d 500 |
| Parties | The PEOPLE, etc., Respondent, v. David SOTOMAYER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Katherine C. Edgell and Carol Zeldin, of counsel), for appellant.
David Sotomayer, pro se.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Michael Gore and Barbara Thomashower, of counsel), for respondent.
Before THOMPSON, J.P., and BRACKEN, SULLIVAN, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered February 27, 1987, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The trial court committed reversible error when, over the objection of both the defendant and the prosecution, it submitted the following "verdict sheet" to the jury:
"VERDICT SHEET
"PEOPLE V DAVID SOTOMAYER IND. NO. 5673/85
"COUNT 1 NOT GUILTY GUILTY
"MURDER IN THE SECOND DEGREE _______ _______
(intentional murder)
""If you find the defendant GUILTY of murder in the second
degree (intentional murder), do not consider any lesser
included offense under this count of the indictment, but
go directly to consideration of Count 2 of the indictment
""If you find the defendant NOT GUILTY of murder in the
second degree (intentional murder) because the People
despite having proven all elements of the crime, have
failed to disprove justification, then you will also
return NOT GUILTY verdicts as to all lesser included
offenses under this count of the indictment
""If you find the defendant NOT GUILTY of murder in the
second degree (intentional murder) because the People have
failed to prove the elements of the crime, you will
without considering the issue of justification with regard
to the crime, turn your consideration to the lesser
included offense of manslaughter in the first degree.
"MANSLAUGHTER IN THE FIRST DEGREE _______ _______
""If your find the defendant GUILTY of manslaughter in the
first degree, do not consider any further lesser included
offense under this count of the indictment.
""If you find the defendant NOT GUILTY of manslaughter in
the first degree because the People, despite having proven
all of the elements of the crime, have failed to disprove
justification, then you will also return a NOT GUILTY
verdict as to any further lesser included offense under
this count of the indictment.
""If you find the defendant NOT GUILTY of manslaughter in
[173 A.D.2d 502] the first degree because the People have failed to prove
the elements of the crime, you will, without considering
the issue of justification as to such crime, turn your
consideration to the lesser included offense of
manslaughter in the second degree.
"MANSLAUGHTER IN THE SECOND DEGREE _______ _______
"COUNT 2
"MURDER IN THE SECOND DEGREE
(felony murder)". _______ _______
For the following reasons, it must be concluded that the submission of this verdict sheet constituted error, that this error has been preserved for appellate review as a matter of law, and that application of the harmless error doctrine is precluded, so that the presence of this error requires reversal.
Pursuant to the terms of the Criminal Procedure Law, a deliberating jury may be provided with trial exhibits (see, CPL 310.20[1] or with "a written list prepared by the court containing the offenses submitted * * * and the possible verdicts thereon" (CPL 310.20[2]. A deliberating jury may also be provided with the "text of any statute" (CPL 310.30), provided that the defendant consents. In a series of cases, the Court of Appeals has held that the error committed when a trial court allows a deliberating jury to review written documents not specifically encompassed by these statutes (see, CPL 310.20, 310.30) can never be considered harmless, irrespective of the quantity of the evidence (see, People v. Taylor, 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882; 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; People v. Brooks, 70 N.Y.2d 896, 524 N.Y.S.2d 382, 519 N.E.2d 293; People v. Owens, 69 N.Y.2d 585, 516 N.Y.S.2d 619, 509 N.E.2d 314; cf., People v. Moore, 71 N.Y.2d 684, 529 N.Y.S.2d 739, 525 N.E.2d 460). The only exception to this rule is reflected in People v. Moore (supra), where it was held to be harmless error for a trial court to submit a portion of the indictment to the jury in response to a specific request (cf., People v. Durant, 153 A.D.2d 757, 544 N.Y.S.2d 984, 985).
In the few years since the Court of Appeals announced a rule of automatic reversal in People v. Nimmons (supra) and its immediate predecessors, this court has been compelled to overturn at least 15 convictions (see, People v. Hedge, 162 A.D.2d 467, 556 N.Y.S.2d 164; People v. Rodriguez, 159 A.D.2d 736, 553 N.Y.S.2d 446; People v. Livingston, 157 A.D.2d 859, 550 N.Y.S.2d 739; People v. Bollander, 156 A.D.2d 456, 549 N.Y.S.2d 27; People v. Taylor, 154 A.D.2d 634, 546 N.Y.S.2d 642; affd. 76 N.Y.2d 873, 560 N.Y.S.2d 982, 561 N.E.2d 882; People v. Durant, 153 A.D.2d 757, 544 N.Y.S.2d 984, 985; People v. Ashlay, 152 A.D.2d 675, 544 N.Y.S.2d 484; People v. Alexander, 152 A.D.2d 587, 543 N.Y.S.2d 504; People v. Pugh, 150 A.D.2d 734, 541 N.Y.S.2d 603; People v. Crosby, 150 A.D.2d 478, 541 N.Y.S.2d 81; People v. King, 150 A.D.2d 497, 541 N.Y.S.2d 97; People v. Conners, 149 A.D.2d 722, 540 N.Y.S.2d 818; People v. Jackson, 148 A.D.2d 750, 539 N.Y.S.2d 482; People v. Gillispie, 144 A.D.2d 482, 533 N.Y.S.2d 981; People v. Valle, 143 A.D.2d 160, 531 N.Y.S.2d 929). The First Department has also deemed it to be "well established that a violation of this rule * * * requires reversal irrespective of prejudice" (People v. Ocasio, 161 A.D.2d 526, 555 N.Y.S.2d 795; see also, People v. Pridgen, 159 A.D.2d 330, 552 N.Y.S.2d 845). But for the rule of "automatic reversal" announced in cases such as Nimmons (supra), Sanders (supra), and Owens (supra), many of these convictions would certainly have been affirmed on the basis of the harmless error doctrine.
We cannot conclude, as do our dissenting colleagues, that the harmless error doctrine which was ruled inapplicable by the Court of Appeals in cases such as Nimmons (supra) may nevertheless be applied here. This argument rests on the premise that certain violations of CPL 310.20 may be considered harmless, while other violations of CPL 310.20 (e.g., those under review by the Court of Appeals in Nimmons [supra], Sanders [supra], Brooks [supra], and Owens, [supra] may not be considered harmless. This premise is itself of dubious validity, since the Court of Appeals has recognized only one, narrow exception to the rule of automatic reversal announced in cases such as Nimmons (supra), and this exception (see, People v. Moore, 71 N.Y.2d 684, 529 N.Y.S.2d 739, 525 N.E.2d 460, supra ) is clearly inapplicable here. On the contrary, the Court of Appeals, in Nimmons (supra), Sanders (supra), and Brooks (supra), has consistently adhered to its earlier declaration in People v. Owens that "the distribution of written instructions to the jury is not expressly authorized by law, and the error in such submissions cannot be deemed harmless " (People v. Owens, 69 N.Y.2d 585, supra, at 591-592, 516 N.Y.S.2d 619, 509 N.E.2d 314 [emphasis supplied].
The document submitted to the jury in the present case indubitably contained "written instructions", the submission of which was, in the language of the Court of Appeals, "not expressly authorized by law" (People v. Owens, supra at 591-592, 516 N.Y.S.2d 619, 509 N.E.2d 314). The Court of Appeals has unequivocally ruled that the error inherent in the submission of such a document "cannot be deemed harmless" (People v. Owens, supra, at 592, 516 N.Y.S.2d 619, 509 N.E.2d 314). We are thus bound to apply the holding of the Court of Appeals to the facts of this case.
Our dissenting colleagues rely on People v. Melendez, 160 A.D.2d 739, 553 N.Y.S.2d 808, in order to support the view that some violations of CPL 310.20 may be considered harmless. We do not consider Melendez to be controlling. The document submitted by the trial court in Melendez was, in the words of this court, a "neutral 'list' of exhibits" (People v. Melendez, supra, at 740, 553 N.Y.S.2d 808). There is an obvious distinction which can be drawn between a list of exhibits, on the one hand, and "written instructions", on the other. The present case clearly involves the latter type of verdict sheet, and we are compelled to respect the unequivocal language of the Court of Appeals in the Owens case (supra), and to conclude that this error, unlike the error in the Melendez case, cannot be considered harmless.
It must also be emphasized that the "written instructions" given to the jury in this case were not entirely "neutral" (cf., People v. Melendez, supra ). The text of the verdict sheet mentions only one defense: justification. Any juror who might have employed this verdict sheet as his sole, or even as his principal source of guidance during deliberations might well have concluded that the defendant's other defenses (e.g., intoxication) were invalid...
To continue reading
Request your trial
-
People v. Mathis
......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; People v. Brooks, 70 N.Y.2d 896, 524 N.Y.S.2d 382, 519 N.E.2d 293; People v. Owens, 69 N.Y.2d 585, 516 N.Y.S.2d 619, 509 N.E.2d 314; People v. Sotomayer, 173 A.D.2d 500, 569 N.Y.S.2d 973; People v. George, 162 A.D.2d 705, 558 N.Y.S.2d 84). Unlike People v. Moore, 71 N.Y.2d 684, 529 N.Y.S.2d 739, 525 N.E.2d 460, the jury here did not seek any such information and the submission therefore cannot be justified on the basis of any statutory ......
-
People v. Johnson
...... We find it a telling contrast that the CPL, which undertakes to define materials that may be submitted to a jury, is silent respecting submission to a jury of the trial court's instructions in writing (see, People v. Sotomayer, 173 A.D.2d 500, 502, 569 N.Y.S.2d 973, affd. 79 N.Y.2d 1029, 584 N.Y.S.2d 431, 594 N.E.2d 925). By CPL article 310 the Legislature has set forth the materials to which a jury may be permitted access to aid in its consideration of a case; they include trial exhibits (CPL 310.20[1], a written ......
- People v. Shabaz
-
People v. McCray
...... [182 A.D.2d 839] Pursuant to the terms of the Criminal Procedure Law, a deliberating jury may be . Page 795. provided with "[a] written list prepared by the court containing the offenses submitted * * * and the possible verdicts thereon" (CPL 310.20[2]; People v. Sotomayer, 173 A.D.2d 500, 569 N.Y.S.2d 973, app. granted 78 N.Y.2d 958, 573 N.Y.S.2d 653, 578 N.E.2d 451). The instructions submitted to the jury on the verdict sheet, along with the offenses to be considered and the possible verdicts, were entirely neutral, and did not contain parenthetical references to ......