People v. Watkins

• Decision Date: 30 November 1989
• Citation: 548 N.Y.S.2d 13,155 A.D.2d 386
• Parties: The PEOPLE of the State of New York, Respondent, v. Carl WATKINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 13

548 N.Y.S.2d 13

155 A.D.2d 386

The PEOPLE of the State of New York, Respondent, v. Carl WATKINS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Nov. 30, 1989.

M.F. Scholl, New York City, for respondent.

M.J. Hibel, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and CARRO, ASCH, KASSAL and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Allen Murray Myers, J.), rendered November 16, 1988, convicting defendant, after a jury trial, of one count of burglary in the second degree (Penal Law § 140.25) and two counts of criminal possession of stolen property in the fifth degree (P.L. § 165.40), and sentencing him, as a predicate violent felony offender, to concurrent prison terms of from four and one-half to nine years and one year, respectively, unanimously reversed, on the law, and the matter remanded for a new trial.

On March 15, 1988, defendant was indicted for the crimes of burglary in the second degree and criminal possession of stolen property in the fifth degree (two counts), which charges arose from allegations of his having, on March 7, 1988, entered and remained unlawfully in a residential dwelling with intent to commit a crime and having possessed, on that same date, property stolen from said premises, to wit, two bicycles.

On August 22, 1988, defendant proceeded to a jury trial. After both sides had rested, the trial court charged the jury and submitted the three counts of the indictment for their consideration. During deliberations, the jury requested that it be given the elements of the crime of burglary in writing. Over the objection of defense counsel, who suggested that the oral charge instead be re-read, the trial court complied. This was error.

CPL § 310.30 provides, in pertinent part, as follows:

With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper [emphasis added].

Thus, the submission of the text of a statute is unequivocally conditioned upon both a jury request and the consent of the parties. People v. Sanders, 70 N.Y.2d 837, 838, 523 N.Y.S.2d 444, 517 N.E.2d 1330; People v. Owens, 69 N.Y.2d 585, 590, 516 N.Y.S.2d 619, 509 N.E.2d 314.

In the case at bar, it is undisputed that the "absolute precondition" of consent under CPL § 310.30, see People v. Sanders, supra, 70 N.Y.2d at 838, 523 N.Y.S.2d 444, 517 N.E.2d 1330, was absent. Seeking to remove the matter from that clear mandate, respondent urges that there is a distinction between the submission of the text of a statute and the submission of the elements of the crime the statute defines. We reject any such distinction as illusory, for the elements of the crime of burglary which were submitted to the jury were derived, as they were required to be, from the ...