People v. Umali

Citation10 N.Y.3d 417,888 N.E.2d 1046
Decision Date06 May 2008
Docket Number66.
PartiesThe PEOPLE of the State of New York, Respondent, v. Isaias UMALI, Appellant.
CourtNew York Court of Appeals
OPINION OF THE COURT

GRAFFEO, J.

The primary issues in this case are whether defendant's right to counsel was violated when the trial court prohibited his attorney from speaking to him about his testimony during a trial recess and whether the court's instructions to the jury regarding defendant's justification defense improperly shifted the burden of proof to defendant. We conclude that there was no deprivation of the right to counsel because the ban on attorney-client communication was rescinded promptly after defendant's protest and the jury charge as a whole accurately stated that the People had to disprove the justification defense beyond a reasonable doubt.

I

Defendant Isaias Umali and his companions attended a party in April 2003 at a nightclub in lower Manhattan. A no-smoking law had recently been enacted and the nightclub's employees, including a bouncer named Dana Blake, spent the evening trying to enforce the new ban. Around 2:30 A.M., Blake observed defendant's friends, Jonathan and Alan Chan, with a group of people who were smoking. Blake approached the assembly and had an unfriendly conversation with Jonathan Chan that resulted in a scuffle.

Although witnesses to the altercation gave varying accounts of what transpired, most of them recounted that Blake grabbed Chan by the throat and pushed him toward an emergency exit. Chan was considerably smaller in stature and weight than Blake (who was six-feet, six-inches tall and weighed about 350 pounds) and was unable to escape Blake's grasp, despite the efforts of other patrons who attempted to free Chan. As Blake moved Chan toward the exit, defendant lunged at Blake and stabbed him in his groin with a six-inch long, serrated martial arts knife. Blake collapsed onto the floor, bleeding profusely. Defendant managed to escape the nightclub. When police officers arrived at the scene, a witness claimed that the Chans had stabbed Blake so they were arrested for assault. Blake was transported to a hospital and underwent surgery for a severed femoral artery, but he died later that day.

In the meantime, defendant sought help from his friends, the Atienza brothers. On his way to see them, defendant wrapped his knife in an article of clothing and threw it in a street drain. Upon his arrival, the Atienzas noticed large blood stains on defendant's pants and suggested that he change his clothing. Defendant told them that the Chans had been in a fight with an African-American man and that he stabbed the man using a specialized maneuver he had learned in a martial arts class. One of the Atienzas remarked to defendant "[p]lease say that you used it in self-defense" and "that you did it for the right reason." Defendant responded that he did not act in self-defense and had no explanation for the stabbing.

The next morning, defendant's fiancee called him but defendant did not want to speak on the telephone about what had transpired at the nightclub. After his fiancee came to the Atienzas' apartment, defendant revealed that he had stabbed Blake using a special martial arts method. The Atienzas, another man and defendant's fiancee threw away defendant's bloody clothing, supplied him with new clothes and cleaned his telephone. While heading to defendant's house, his fiancee gave her knife to defendant so that he could show it to anyone who questioned him about the stabbing.1

After defendant learned from news reports that Blake had died, he attempted to take his own life by slashing his throat and wrists, but he survived and was placed under psychiatric supervision. The Chans were released by the police approximately two days after the stabbing incident. Defendant was eventually indicted for two counts of murder in the second degree. At trial, he raised a justification defense, explaining that he stabbed Blake in order to protect Jonathan Chan from the use of deadly physical force.

In his own defense, defendant began testifying on a Wednesday, but his testimony was not complete by the end of that day. Because Thursday was a holiday and the court would not be available for trial proceedings on Friday, the trial court adjourned the case until the following Monday. In light of this four-day adjournment before defendant retook the stand, the court advised defense counsel that they could not discuss defendant's testimony with him during the recess but they could speak about other matters. Defense counsel did not voice an objection and agreed not to discuss issues related to defendant's testimony. But on Friday morning, defendant's counsel asked the court to reconsider its ruling, arguing that the ban on communication was impermissible under People v. Blount, 77 N.Y.2d 888, 568 N.Y.S.2d 908, 571 N.E.2d 78 (1991), cert. denied 502 U.S. 815, 112 S.Ct. 68, 116 L.Ed.2d 42 (1991). Later that morning, a court employee contacted defense counsel and stated that the order had been rescinded, which left approximately 2 days for defendant to confer with his attorneys before resuming his testimony.

The trial continued the following week and the jury ultimately rejected defendant's justification defense, convicting him of manslaughter in the first degree as a lesser included offense of second-degree murder. The Appellate Division affirmed and a Judge of this Court granted leave.

II

Defendant claims that his right to counsel was violated when the court prohibited him from discussing his testimony with counsel during the four-day recess and that this error was not cured when the court lifted the ban. It is well settled that a court cannot prohibit defense counsel from speaking to a defendant about his trial testimony during a recess unless the break is one of very short duration (see e.g. Geders v. United States, 425 U.S. 80, 88-89, 96 S.Ct. 1330, 47 L.Ed.2d 592 [1976]; Perry v. Leeke, 488 U.S. 272, 283-285, 109 S.Ct. 594, 102 L.Ed.2d 624 [1989]; People v. Joseph, 84 N.Y.2d 995, 997-998, 622 N.Y.S.2d 505, 646 N.E.2d 807 [1994]; People v. Blount, 77 N.Y.2d at 888, 568 N.Y.S.2d 908, 571 N.E.2d 78, affg. 159 A.D.2d 579, 552 N.Y.S.2d 441 [2d Dept.1990]). However, it is equally clear that if counsel "is present and available to register a protest" to a restriction on communication that would provide the court with an opportunity to rectify its error, the failure to object renders a claimed deprivation of the constitutional right to counsel unpreserved for appellate review (People v. Narayan, 54 N.Y.2d 106, 112, 444 N.Y.S.2d 604, 429 N.E.2d 123 [1981]). In this case, defense counsel allowed the limitation on communication to remain in effect for about 1 days before challenging the ban. Consequently, in evaluating defendant's right to counsel argument, we do not consider the length or effect of the prohibition that occurred prior to defense counsel's protest that Friday morning.2

Once defense counsel made a proper objection, it was evident that the previous order precluding certain attorney-client communications was improper because it was more than a "temporary and limited ban on discussions between defendant and [his] attorney during a brief recess" (People v. Joseph, 84 N.Y.2d at 997, 622 N.Y.S.2d 505, 646 N.E.2d 807). Upon realizing that the order was improper, the trial court promptly rescinded it and verified that defense counsel were aware they could consult with defendant about his testimony. The time that elapsed between the objection and the withdrawal of the order was no more than three hours, and at the time the prohibition was lifted, there remained 2 ½ days for counsel to confer with defendant before trial proceedings would recommence. Furthermore, there was no indication that counsel believed additional consultation time was necessary.

In our view, these circumstances are comparable to the situation in United States v. Triumph Capital Group, Inc., 487 F.3d 124 (2d Cir.2007). The restriction on communication in that case lasted about three hours, the ban applied to discussions regarding the defendant's testimony but he was free to speak with counsel about any other matter and the attorney was given further consultation time before the trial resumed (45 minutes compared to the 2 ½ days in this case). The United States Court of Appeals for the Second Circuit determined that the prohibition on communication did not require a new trial. We believe that the limited three-hour ban in this case, as in Triumph Capital, was insignificant based on the time remaining before continuation of the trial and, therefore, a reversal is not warranted in this case.3

III

Defendant also contends that the instructions provided to the jury on his justification defense were erroneous. He alleges that the trial court improperly shifted to the defense the People's burden of proving beyond a reasonable doubt that defendant did not subjectively believe deadly force was necessary. The People concede that the trial court misspoke at one juncture in its charge, but assert that the charge as a whole adequately informed the jury that justification had to be disproved beyond a reasonable doubt by the People. Defendant, in contrast, maintains that the court's single misstatement requires a new trial because no supplemental instruction disavowed the incorrect charge.

As relevant to this appeal, justification is comprised of both subjective and objective elements. The subjective element is concerned with whether the defendant believed that the use of deadly force was necessary; while under the objective prong, the jury must consider whether a reasonable person in the defendant's circumstances would have believed that deadly force was...

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