People v. White

• Decision Date: 10 May 1979
• Citation: 67 A.D.2d 571,416 N.Y.S.2d 260
• Parties: The PEOPLE of the State of New York, Respondent, v. Samuel WHITE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 260

416 N.Y.S.2d 260

67 A.D.2d 571

The PEOPLE of the State of New York, Respondent, v. Samuel WHITE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 10, 1979.

Gary R. Sunden, New York City, for defendant-appellant.

Steven J. Shapero, New York City, of counsel (Norman A. Bloch, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty.), for respondent.

Before KUPFERMAN, J. P., and LANE, LUPIANO, SILVERMAN and LYNCH, JJ.

LUPIANO, Justice:

On February 2, 1976, at approximately 9:30 P.M., a grocery store was robbed by three men. One of the owners identified defendant as one of the perpetrators. Defendant was also identified by a brother of the owner who, standing behind a meat refrigerator in the store, viewed defendant through the glass sides of the refrigerator. This robbery, of some five minutes duration, occurred under generally well-lit conditions. Defendant presented an alibi defense urging that he was visiting his grandmother at the time. Rebuttal testimony was elicited tending to show that the grandmother's house was only fifteen minutes by automobile from the grocery store. In summation, the defense argued that the eyewitness identification by this owner and her brother was weak.

After summation, and during its deliberative process, the jury sent a note to the trial court, as follows:

"Six jurors completely confused on layout of store. Would like to see store."

In the ensuing colloquy between the prosecutor, defense counsel and the court, it was agreed that CPL § 270.50 did not foreclose the possibility of having a jury visit the scene of a crime after summation, provided it was done by consent of the People and the defendant. Both the People and the defendant consented to have the jury view the store premises where the crime occurred, and the defense counsel also specifically waived any objection on appeal to the mere viewing by the jury of the crime scene.

However, defense counsel, noting that certain transitory personalty, to wit, a potato chip rack and a hosiery rack, had been moved at the crime scene since the time of the crime, requested a supplemental instruction by the court to the jury to the effect "(t)hat some things are not going to be exactly in the same position." The trial court refused, on the basis that the letter from "(t)he jury doesn't indicate that," but merely requests to view the scene and that such viewing is proper if there has been no substantial change in the location of the general articles in the store, but that if there has been such change, it would be useless for the jury to visit the scene. Upon noting that the testimony indicated that the crime scene was "about the same now as it was at that time" (the time of the crime), to which observation the prosecutor acceded, and upon direct inquiry by the court, the defense counsel acknowledged that there was no change, except that the racks had been moved out because of restocking of shelves.

Characterizing this change as "a small item," the court observed that it is the jury's recollection of the evidence which controls. Defense counsel complained that the viewing seems unfair in that the jury would see the racks in a different location, but the court reiterated that the jury knows the testimony with respect to the location of these items and whether they might impede the view. Defense counsel again urged this objection, but the court adopted the common sense observation by the prosecutor that it would probably be impossible to put the racks in the exact location they were at the time of the crime. Thus, the trial court reiterated its denial of defense counsels' request for either supplemental charge to the jury instructing them that the crime scene was changed, or to restore the crime scene to as close an approximation as possible to its appearance at the time of the crime. Despite this denial, defense counsel consented to the viewing.

Criminal Procedure Law § 270.50, subdivision 1, provides:

"When The court is of the opinion that a viewing or observation by the jury of the premises or place where an offense on trial was allegedly committed, or of any other premises or place involved in the case, will be helpful to the jury in determining any material factual issue, It may in its discretion, at Any time before the commencement of the summations, order that the jury be conducted to such premises or place for such purpose in accordance with the provisions of this section" (Emphasis supplied).

It should immediately be noted that this statute controls a trial situation occurring before summations only and that during such period it is the opinion and the discretion of the trial court which controls. There is no specific proscription in the statute of a jury's visiting a crime scene after summations other than by implication. In People v. Landers, 264 N.Y. 119, 123, 190 N.E. 204 (1934), the Court of Appeals in discussing section 411 of the Code of Criminal Procedure, which is the statute from which the present statute (Criminal Procedure Law § 270.50) is derived, observed:

"View of premises, when ordered and how conducted, is governed by Code of Criminal Procedure, section 411. It is argued from the location of this section in the Code in title VII, chapter 1, entitled 'The Trial', that a view may be ordered Only during the trial, after the jury has been impaneled and that the trial ends when the case is submitted to the jury. The power of the court is not so limited, at least when the parties consent " (Emphasis supplied).

People v. Landers is based in part on the principle that "(t)he view is (not) a part of the trial," citing People v. Thorn, 156 N.Y. 286, 50 N.E. 947 (1898). People v. Thorn, supra utilized as support for this proposition, the fact that the Code of Criminal Procedure did not then "require the judge to attend upon the jury during the time that it is inspecting the premises." Of course, the present statute does require the attendance of the court itself and thus it may well be urged that the view is a part of the trial. This does not detract, however, from the continued viability of the Landers' Court's statement that the power of the court to order viewing is not limited to a pre-summation period when the parties consent. The Landers' Court recognized that "(t)he trial in common parlance may extend from arraignment to verdict and sentence" (People v. Landers, supra, 264 N.Y. p. 123, 190 N.E. p. 205).

Accordingly, we initially hold that there is a residuum of power in the trial court to permit a jury, after summations, to view the scene of a crime upon the jury's request to obtain such view, provided the parties, I. e., the People and the defendant, consent. Of course, the proper exercise of this power rests with the sound discretion of the trial court when it is of the opinion that such viewing will be helpful to the jury. We are prompted to this conclusion by the historical underpinnings of the statutes authorizing viewing to the effect that they

"were evidently designed by the legislature To aid the jury in arriving at a correct result. It is a well-understood fact that an individual familiar with the locality can better and more accurately understand the testimony of the witnesses describing scenes occurring therein than a stranger who is dependent entirely upon the description given by the witnesses. A criminal trial is to ascertain the facts, and every act of the legislature designed to aid the jury in this direction should receive a liberal and reasonable interpretation, to the end that this purpose may be accomplished" (People v. Thorn, supra at 156 N.Y. p. 296, 50 N.E. p. 951) (Emphasis supplied).

The facts which the fact-finder is asked to resolve are presented by the parties to the criminal litigation, respectively the People and the defendant. In other words, the version of reality upon which the fact-finder is required to operate in order to ascertain truth is filtered by the competing interests of society the People, on the one hand, and the defendant on the other. Accordingly, if the parties themselves, whose respective and competing interests are at stake, consent that the jury be permitted to ascertain the facts by an actual view of the scene of the crime, the mere fact that this occurs after summations should not serve of itself to frustrate this laudable goal.

Prior to summations, the consent of the parties is not required because the court is vested by virtue of the explicit terms of the statute (Criminal Procedure Law § 270.50) with the power to direct a viewing. However, after summations, the power of the court to direct a viewing derives not from the legislative will as expressed in the statute, but from the will of the parties themselves who have a...