People v. Stewart

• Decision Date: 15 January 1992
• Parties: The PEOPLE, etc., Respondent, v. Berthel STEWART, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 638

578 N.Y.S.2d 638

179 A.D.2d 731

The PEOPLE, etc., Respondent, v. Berthel STEWART, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 15, 1992.

Martin Geoffrey Goldberg, Franklin Square, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Sherry B. Bokser, of counsel, Emilio F. Grillo, on the brief), for respondent.

Before KUNZEMAN, J.P., and SULLIVAN, HARWOOD and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered February 1, 1989, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Following the main charge, the jury requested the reading back of certain portions of the testimony and a written list of the elements of the crimes charged. The court told the jury that it could not provide them with the list but sua sponte offered pencils and paper to the jury, an offer which four jurors accepted, and stated "I can't stop you from writing". Thereafter, the requested portions of the testimony were read back, and the court provided a supplemental instruction which included the elements of the various charges. After the jury left the courtroom to continue deliberations, the defense counsel moved for a mistrial on the grounds that the court had provided paper and pencils to members of the jury and had responded to their oral questions. The court denied this motion.

The prosecutor subsequently proposed that the jury be given clarifying instructions with regard to any notes that were taken. Although the court offered to give the clarifying instructions, the defense counsel objected to any further clarifications which the jurors had not directly sought. The court indicated that it would not give the instructions without the defendant's consent. The defense counsel would not consent.

The jury thereafter requested and was given further instruction. After the jury retired to continue deliberations, the defense counsel once again moved for a mistrial on the ground that the court had permitted deliberations in open court. The court denied the motion.

The defendant now contends on appeal that the court committed reversible error in responding to oral questions from the jurors and in permitting the jurors to take notes. In People v. DiLuca (85 A.D.2d 439, 445, 448 N.Y.S.2d 730), this court held that "the decision as to whether jurors should be permitted to take notes in a particular case is properly left to the discretion of the trial court". However, the court emphasized the necessity for providing the jury with cautionary instructions concerning both the taking and use of such notes, the primary concerns being that "more significance [may] be placed by the jurors on their notes, which may be inaccurate, incomplete or misleading, than on their own independent recollection" and that "the juror with the best notes [may] unduly influence and possibly mislead the other jurors" (People v. DiLuca, supra, at 444, 448 N.Y.S.2d 730).

We stress that the court's conduct in this case clearly fell outside the acceptable bounds of discretion. Neither the practice of responding to oral questions from the jurors nor providing them with pencils and paper with which to take notes is to be encouraged. In the recent decision of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, the Court of Appeals emphasized the importance of disclosing the specific contents of jurors' notes to the defendant and defense counsel. The court held as follows:

"Such an opportunity is essential to counsel's ability to represent the client's best interests and, further, to ensure the protection of the client's constitutional and statutory rights at these critical postsubmission proceedings (see, People v. Ciaccio, 47 N.Y.2d 431, 437 [418 N.Y.S.2d 371, 391 N.E.2d 1347] [supplemental instructions, which are given in response to the jurors' own questions, 'may well be determinative of the outcome']. Thus, just as CPL 310.30's requirement that juror inquiries be answered mandates a 'meaningful' response (see, People v. Malloy, [55 N.Y.2d 296], at 301, [449 N.Y.S.2d 168, 434 N.E.2d 237] so too does that statute's 'notice' requirement mandate notice that is meaningful" (People v. O'Rama, supra, at 277, 574 N.Y.S.2d 159, 579 N.E.2d 189).

Viewed in light of these principles, the conduct of the trial court in the instant situation was clearly inadequate. However, owing to countervailing circumstances, the court's improprieties do not warrant reversal of the judgment of conviction in this case.

The trial court's failure to deliver the required cautionary instructions is unpreserved for appellate review because the defendant made no request that the jurors be instructed concerning their notes (see, People v. DiLuca, 85 A.D.2d 439, 444, 448 N.Y.S.2d 730, supra; CPL 470.05[2]. On the contrary, the defense counsel strenuously objected to the court's giving any cautionary instructions. Under the circumstances, and given the overwhelming evidence of defendant's guilt, permitting the jurors to take notes was harmless error (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's contention regarding the trial court's error in responding to oral questions from some of the jurors is similarly unpreserved for appellate review, since the defendant's objection to the error was untimely raised when the court could no longer rectify it. Moreover, this error was also harmless in view of the overwhelming evidence of the defendant's guilt (People v. Crimmins, supra ).

KUNZEMAN, J.P., and SULLIVAN and ROSENBLATT, JJ., concur.

HARWOOD, J., dissents and votes to reverse the judgment appealed from, on the law and as a matter of discretion in the interest of justice, and to order a new trial, with the following memorandum:

In this case which rests essentially on the credibility of witnesses from each side of a conflict between feuding neighbors, I cannot agree with the majority that we should excuse, as harmless error, judicial conduct which it concedes "clearly fell outside the acceptable bounds of discretion". I therefore dissent and vote to reverse the judgment appealed from and to remit the matter for a new trial.

As the majority notes, after the court delivered its instructions, the jury retired and then sent a note requesting both a reading back of certain testimony and a written "list" of the elements of each crime charged. At the ensuing bench conference the defense counsel objected to "any written list" and the court then advised the jury that it could not be given a list (see, CPL 310.30). The court did not, however, stop there. Without consultation with or prior notice to counsel, without any request therefor from the jury, and without benefit of the cautionary instructions this court has held should be delivered before the commencement of deliberations and which it has characterized as "mandatory", "critical", and "essential" for proper jury deliberations (see, People v. DiLuca, 85 A.D.2d 439, 445-446, 448 N.Y.S.2d 730; see also, People v. Anderson, 151 A.D.2d 335, 542 N.Y.S.2d 592), the trial court...