Opinion
1500 KA 06–00538
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Randy HALL, Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On a prior appeal, we affirmed the judgment convicting defendant upon a jury verdict of, inter alia, attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ) and assault in the second degree (§ 120.05[2] ) ( People v. Hall, 48 A.D.3d 1032, 849 N.Y.S.2d 743 [4th Dept. 2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise issues that may have merit, i.e., whether County Court had placed on the record a reasonable basis for restraining defendant before the jury and whether the court had complied with CPL 310.30 with regard to court exhibit No. 11, a note from the jury during its deliberations ( People v. Hall, 142 A.D.3d 1401, 38 N.Y.S.3d 472 [4th Dept. 2016] ), and we vacated our prior order. We now consider the appeal de novo.
As we concluded in codefendant's appeal, we agree with defendant "that the court erred in failing to make any findings on the record establishing that defendant needed to wear a stun belt during the trial ... Contrary to the People's contention, harmless error analysis is not applicable" ( People v. Gomez, 138 A.D.3d 1486, 1487, 30 N.Y.S.3d 466 [4th Dept. 2016] ; see People v. Buchanan, 13 N.Y.3d 1, 4, 884 N.Y.S.2d 337, 912 N.E.2d 553 [2009] ; People v. Schrock, 99 A.D.3d 1196, 1197, 951 N.Y.S.2d 819 [4th Dept. 2012] ). We therefore reverse the judgment and grant a new trial on counts 1, 2, and 7 through 11 of the indictment, the counts of which he was convicted.
We reject the People's further contention that defendant's conviction became final before the Court of Appeals's decision in Buchanan and that the decision should not be applied retroactively to allow a collateral attack on the judgment. In granting defendant's motion for a writ of error coram nobis, we vacated our prior order and are considering the appeal de novo (see People v. Brink, 134 A.D.3d 1390, 1391, 21 N.Y.S.3d 773 [4th Dept. 2015] ). This appeal is therefore not a collateral attack on the judgment. In addition, we are not persuaded by the People's position that Buchanan should be applied prospectively only. Buchanan did not announce " ‘new’ rules of law that represent sharp departures from precedent or raise concerns about the orderly administration of justice" ( People v. Vasquez, 88 N.Y.2d 561, 573–574, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ; see generally People v. Pepper, 53 N.Y.2d 213, 220, 440 N.Y.S.2d 889, 423 N.E.2d 366 [1981], cert denied 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383 [1981] ). Instead, we apply the "traditional common-law" rule of deciding this appeal in accordance with the law as it now exists ( Vasquez, 88 N.Y.2d at 573, 647 N.Y.S.2d 697, 670 N.E.2d 1328 ; see People v. Schrock, 108 A.D.3d 1221, 1225, 969 N.Y.S.2d 668 [4th Dept. 2013], lv denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013], reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2015] ).
We reject defendant's contention that reversal is required based on alleged mode of proceedings errors during jury deliberation. With respect to court exhibit No. 11, we note that the exhibit has been located since codefendant's appeal and that it is simply a ministerial request from the jury for a lunch and smoking break. We therefore conclude that there was no O'Rama error requiring this Court to reverse the judgment on that ground (see People v. Fedrick, 150 A.D.3d 1656, 1657, 54 N.Y.S.3d 482 [4th Dept. 2017], lv denied 29 N.Y.3d 1126, 64 N.Y.S.3d 676, 86 N.E.3d 568 [2017] ). We reject defendant's further contention that reversal is required on the ground that the record fails to demonstrate that he was present when the court gave nonministerial instructions to the jury in response to jury notes. A defendant alleging that he was denied his right to be present at a material stage of trial has the "burden of coming forward with substantial evidence establishing his absence" ( People v. Foster, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ). "Without more, [a court reporter's] failure to record a defendant's presence is insufficient to meet the defendant's burden of rebutting the presumption of regularity" ( id. ; see People v. Martin, 26 A.D.3d 847, 848–849, 808 N.Y.S.2d 865 [4th Dept. 2006], affd 8 N.Y.3d 129, 831 N.Y.S.2d 738, 863 N.E.2d 990 [2007] ).
In light of our determination to grant a new trial, we do not consider defendant's remaining contentions with respect to the sentence.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts 1, 2, and 7 through 11 of the indictment.