People v. Strasser

• Decision Date: 23 April 1998
• Citation: 249 A.D.2d 781,671 N.Y.S.2d 873
• Parties: , 1998 N.Y. Slip Op. 3757 The PEOPLE of the State of New York, Respondent, v. Francis X. STRASSER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 873

671 N.Y.S.2d 873

249 A.D.2d 781, 1998 N.Y. Slip Op. 3757

The PEOPLE of the State of New York, Respondent, v. Francis X. STRASSER, Appellant.

Supreme Court, Appellate Division Third Department.

April 23, 1998.

Bruce R. Bryan, Syracuse, for appellant.

Robert J. Simpson, District Attorney (Gerald A. Keene, of counsel), Owego, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the County Court of Tioga County (Squeglia, J.), rendered April 25, 1997, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

It is undisputed that defendant fatally shot his son-in-law, Christopher Allen, on April 20, 1996. The shooting occurred following a regularly scheduled supervised and uneventful visitation between Allen and his infant son at defendant's home. Defendant's version of the events, as recounted in an oral statement to police shortly after the incident, was that a verbal confrontation ensued between the two men concerning Allen's imminent divorce from defendant's daughter and defendant's allegations that Allen engaged in various larcenous criminal conduct.

During the dispute, Allen went to his car and procured a knife. Defendant, in turn, went into a barn on the property and retrieved a 20-gauge shotgun which he had placed there earlier that morning in anticipation of a confrontation with Allen. Allen allegedly threatened to kill defendant, his wife and their daughter and continued to advance toward him with the knife despite repeated protestations that he stop. Defendant then shot Allen twice with the shotgun.

Defendant was indicted on two counts of murder in the second degree (see, Penal Law § 125.25[1] [intentional murder], [2] [depraved indifference murder] ). Following a jury trial at which defendant asserted that his conduct was justified by self-defense, he was convicted of manslaughter in the first degree. Sentenced to an indeterminate prison term of 6 to 12 years, defendant appeals.

Defendant first contends that County Court erred in permitting jurors, over defense counsel's objection, to take notes during the trial and the court's instructions. Of specific concern to defendant is the fact that the jurors took notes during one of the court's numerous supplemental instructions. At the request of the jury, the court reread the second count of the indictment (depraved indifference murder) and gave supplemental instructions on this charge, as well as on manslaughter in the first and second degrees. At this time, defense counsel renewed his objection to jury note taking. ¹ County Court, at defense counsel's request, thereafter gave its third precautionary instruction to the jury on this issue. The court explained to the jurors that they needed to come to a common understanding of the law and that no one juror's notes took precedence over another's notes. The court further instructed that if the jury had any questions about the law, it should ask the court. ²

On appeal, defendant equates the jurors' note taking during this one supplemental charge with providing them a written copy of a statute or partial written charge without the consent of defendant, in violation of CPL 310.30 and controlling case law. We begin our analysis by noting the well-established rule that County Court has the discretion in deciding whether to allow jurors to take notes during a trial (e.g., People v. Hues, 244 A.D.2d 713, 715, 664 N.Y.S.2d 647, 649; People v. Dexheimer, 214 A.D.2d 898, 902, 625 N.Y.S.2d 719, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777). If a court does permit jurors to take notes, it is required to give cautionary instructions (see, id.). Several factors compel the conclusion that County Court did not abuse its discretion in permitting the jurors to take notes, even during the court's supplemental instructions.

First, all jurors were permitted to take notes during the entire trial and their option to continue note taking during the original charge and the supplemental charges requested by the jury was not precipitated by any suggestion of County Court. Thus, we discern no undue emphasis on any matter by County Court nor any undue influence on the jury by the physical presence of certain limited notes in the jury room (see, People v. Tucker, 77 N.Y.2d 861, 568 N.Y.S.2d 342, 569 N.E.2d 1021; cf., People v. Owens, 69 N.Y.2d 585, 516 N.Y.S.2d 619, 509 N.E.2d 314; People v. Anderson, 151 A.D.2d 335, 542 N.Y.S.2d 592; People v. Di Luca, 85 A.D.2d 439, 448 N.Y.S.2d 730). Moreover, the jury was given appropriate cautionary instructions on three separate occasions concerning note taking and the use of such notes during deliberations (cf., People v. Sundquist, 175 A.D.2d 319, 572 N.Y.S.2d 410; People v. Morales, 159 A.D.2d 86, 559 N.Y.S.2d 869; People v. Di Luca, supra ).

Defendant next contends that County Court erred in its Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) by permitting the People to impeach defendant concerning a January 1993 Utah petit larceny conviction and a January 1994 New York petit larceny conviction. Acts of individual dishonesty such as offenses involving theft, are materially relevant to a defendant's credibility (see, e.g., People v. Rivera, 101 A.D.2d 981, 982, 477 N.Y.S.2d 732, affd. 65 N.Y.2d 661, 491 N.Y.S.2d 621, 481 N.E.2d 253). Although the Utah conviction was expunged five months after the shooting pursuant to a Utah statute which permits expungement of convictions so long as certain eligibility conditions are met (see, Utah Code Ann §§ 77-18-11, 77-18-12), we nevertheless find that County Court did not abuse its sound discretion in permitting defendant to be impeached on it (see, People v. Gray, 84 N.Y.2d 709, 622 N.Y.S.2d 223, 646 N.E.2d 444).

While it is obviously the prerogative of other states to enact statutes permitting the expungement of convictions, we note that this State has never enacted a comparable expungement statute under our Criminal Procedure Law and we discern no basis to set down a per se rule that an expunged out-of-State conviction can never be used to impeach a defendant during a criminal trial in this State. The expungement of defendant's conviction was not proven to constitute a dismissal of that charge on the merits, nor does it alter the fact that a criminal act was perpetrated by him (see generally, People v. Intelisano, 188 A.D.2d 881, 591 N.Y.S.2d 883; People v. Rivera, 101 A.D.2d 981, 477 N.Y.S.2d 732, supra; People v. Rivera, 100 A.D.2d 914, 915, 474 N.Y.S.2d 573; People v. Alberti, 77 A.D.2d 602, 430 N.Y.S.2d 6, cert. denied 449 U.S. 1018, 101...