Opinion
No. 2002 NY 003256.
Decided March 17, 2004.
The defendant, Carlos Rodriguez, was convicted after a jury trial, of one count of assault in the third degree (PL 120.00(1)) and one count of harassment in the second degree (PL 240.26). He now moves, pursuant to CPL 330.30(1) and 330.30(3), to set aside the verdict.
The grounds for defendant's motion may be summarized as follows: (1) the court erred by declining to instruct the jury a second time concerning the defendant's defense of justification when the jury asked that the court "re-read counts one, two and three, and how we . . . are supposed to evaluate them . . ." (2) the People engaged in a pattern of withholding Rosario material until it was too late for the defense to use and (3) the delayed Rosario material contained material constituting newly-discovered evidence.
After the motion was fully briefed, the court directed that a hearing be held to address the factual issues raised. At such a hearing the defendant has the burden of proving, by a preponderance of the evidence, every fact essential to support the motion (CPL 330.40(2)(g)).
The hearing was held on February 18, 2004. The defense called Traffic Enforcement Agent Camilla Grant as a witness. She again testified that she received no physical injuries at the time of the assault upon her partner Traffic Enforcement Agent Dexter Thompson. She said that her injuries were emotional and psychological, resulting from the very traumatic and shocking nature of the incident. While she testified that her symptoms included headaches, insomnia and anxiety, she also conceded that she had reported a sprained neck which might have resulted from her attempt to pull the defendant off Agent Thompson or, as her doctor told her, might have been caused by stress.
When asked why she replied in the negative, when asked at trial whether she had sustained any injuries, she explained that she hadn't been physically hurt or beaten up like Agent Thompson and she considered her injuries to be emotional.
Agent Grant also testified that she was out of work for approximately six months during which period she received worker's compensation and was treated by a psychiatrist or psychologist.
Finally, Agent Grant testified that another Traffic Enforcement Agent, Rosa Shell, had witnessed a part of the incident, but she did not notice when Agent Shell first arrived on the scene.
Defense counsel offered in evidence a notice of injury form completed by Agent Grant which had not been furnished to counsel until after the jury had retired to deliberate. The document was received in evidence as a hearing exhibit (defendant's Exhibit A).
Also received in evidence at the hearing were eight pages from Agent Grant's worker's compensation file subpoenaed by defense counsel and furnished to her on the day of the hearing after in camera review by the court (defendant's Exhibit B-1 through B-8).
Finally, defense counsel offered four pages of Agent Grant's handwritten notes concerning the incident, together with a cover letter from the Assistant District Attorney, received by defense counsel subsequent to the verdict (defense Exhibit C-1 through C-5). Two of the pages had been furnished to the defense while the trial was ongoing but owing to an incomplete fax copy, a few words had been deleted. The two additional pages were substantially identical in content, to the first two pages but included the missing language (which was a reference to the fact that Agent Shell had witnessed part of the incident).
Agent Shell was available at the hearing and, after both sides declined to call her, the court had her testify as the court's witness. Agent Shell said that she responded to the scene after receiving a radio transmission. When she arrived, she saw Agent Grant attempting to pull someone off Agent Thompson. That person was beating Agent Thompson. At the conclusion of the hearing the court reserved decision.
As to defendant's first argument, that the court's failure to re-read the justification charge constitutes prejudicial error requiring reversal by an appellate court, the court makes the following findings of fact:
1. the court fully charged the jury as to the defense of justification and the People's burden to prove, beyond a reasonable doubt, that the defendant did not act in self-defense;
2. shortly after that charge was given, the jury sent a note to the court which, in relevant part, read that the jury requests "that the judge re-read counts 1, 2 and 3 and how we the jury are supposed to evaluate them" (sic);
3. defense counsel requested that the court re-read the justification charge;
4. the court re-read to the jury the elements of each count, which the jury was told the People were required to prove beyond a reasonable doubt, and again instructed the jury that it must consider the defense of justification, as previously explained, before the jury may find the defendant guilty of any of the three counts in the information. This instruction was repeated after the elements of each count were explained to the jury;
5. the court twice told the jury that if there was something else that they wanted to hear, they were to send a note to the court requesting further clarification. The jury made no such request.
The defense argues that People v. Zlochevsky, 196 AD2d 701 (1st Dept. 1993), mandates reversal because the court erred in denying defense counsel's request that the court re-read the justification charge in responding to the jury's note. The court finds that the facts here are far closer to those present in the controlling case of People v. Almodovar, 62 NY2d 126 (1984) and are readily distinguishable from Zlochovsky.
In Almodovar, the jurors sent a note to the court asking for the legal definition of counts one, two and four. The court gave supplemental instructions detailing the elements of the three counts. The court did not repeat its instructions on justification and defense counsel's request for that instruction, which was made after the jury returned to the jury room, was refused.
As the Court of Appeals held in Almodovar, the trial court possesses some discretion in framing its supplemental instructions but must respond meaningfully to the jury's inquiries. The sufficiency of a trial court's response is gauged by the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the supplemental instruction given and the presence or absence of prejudice to the defendant. Almodovar, at 131-132.
In Almodovar, the Court of Appeals held that it was not error for the court to refuse to go beyond the jury's request. Furthermore, as suggested by Almodovar, the court here did "remind the jurors in its supplemental instructions of defendant's claim that his acts were justified" id. at 132. Also, as in Almodovar, the jurors here did not indicate that they were dissatisfied with the instructions given after the court twice advised the jurors that if they required additional information or did not hear what they were asking to hear, they were to send a note so advising the court.
In Zlochevsky, supra, the jurors were not reminded, in the supplemental instructions, of defendant's claim of justification and were not invited to ask for further instruction if dissatisfied. Furthermore, the failure to give the requested instruction was only one of several errors found by the appellate court leading that court to reverse the conviction.
Accordingly, the court holds that the defendant was not prejudiced by the court's refusal to re-read the entire justification instruction and, under all of the circumstances, that refusal would not require a reversal of the conviction by an appellate court.
Defendant next argues that the People failed to furnish the defense with Rosario material at a time when such material could have been used to cross-examine the People's witnesses and that there is a reasonable possibility that this untimely disclosure materially contributed to the result of the trial. This violation, defendant contends, constitutes another basis which would require reversal of the conviction by an appellate court.
Among the documents which the defendant identifies as delayed Rosario material, and the stages of trial at which they were delivered, are the following:
1. prior written statement prepared by Agent Grant describing the incident which was the subject of her trial testimony and an injury report prepared by Agent Thompson which described the incident and the injuries he sustained.
These statements were not obtained by the People or delivered todefense counsel until after the witnesses had completed their testimony and just before the People rested. Because of an error in faxing, one line of Grant's statement was cut off.
Other documents included in Exhibit A attached to defendant's motion to set aside the verdict, also delivered just before the People rested, do not constitute Rosario material. Even if deemed Rosario material, their delayed production did not prejudice the defendant.
2. a portion of a written statement prepared by Agent Grant which the People provided in the mistaken belief that it was the same as the first statement of Agent Grant, described above, and that it contained the missing line. This document was furnished by the People after the defendant had rested but before the case was given to the jury;
3. an employee notice of injury, filled out and signed by Agent Grant, describing, among other things, the nature and extent of her injury. This document was obtained by the People and furnished to defense counsel after the jury had retired to deliberate; and
4. a copy of the complete statement of Agent Grant, containing the missing line, which was furnished by the People to defense counsel approximately one month after the trial had concluded.
With respect to defendant's Rosario claim, the court makes the following findings of fact:
1. before concluding her cross-examination of Agent Grant defense counsel asked her if she had prepared a written report concerning the incident;
2. when Agent Grant responded that she had, defense counsel asked for its production. Over the People's objection, the court directed the People to obtain a copy of the written report and to make it available to defense counsel. The court told defense counsel that if, after review of the report, there was a material basis to reopen the examination of the witness, the court would permit it. Defense counsel had no further questions at that time;
3. a copy of Grant's report was furnished to defense counsel, together with a copy of Agent Thompson's Notice of Injury before the People rested. The People advised that both witnesses were available for further cross-examination;
4. defense counsel's request to reopen and to recall Agents Grant and Thompson for further cross-examination was denied by the court on the ground that there were no material inconsistencies between their trial testimony and the statements contained in their reports. Because the People failed to furnish a copy showing the missing line in Grant's report, the court directed the People to obtain a copy which showed that line and told defense counsel that it would reconsider reopening the cross-examination of Agent Grant if the information contained in the missing line so warranted;
5. a complete version of Agent Grant's statement, showing themissing line, was not furnished to defense counsel until January 7, 2004, over a month after the trial had ended and the guilty verdict had been returned;
6. the missing line read "another agent name (sic) Shell witnessed part of" [the incident];
7. at the trial in response to a question on direct examination," did you sustain any injuries?" Agent Grant answered "no"; and
8. a copy of Agent Grant's Notice of Injury form was furnished to defense counsel after the jury had retired to deliberate (Exhibit C appended to defendant's motion). On that form, in response to the caption "nature and extent of injury," Agent Grant wrote "headache, anxiety attack, sprain neck".
Although the People's continuous delays in producing Rosario material does not appear to have been deliberate, and was precipitated, in part, by their mistaken belief that the Traffic Enforcement Division was not a component of the New York City Police Department, the People's execution of their discovery obligations was deficient and unworthy. Nevertheless, the defendant's conviction may not be set aside for these disclosure failures absent a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial. CPL 240.75. Essentially, defendant must show that he has been prejudiced by the nondisclosure. People v. Wall, 284 AD2d 102 (1st Dept. 2001); People v. Nelson, 1 AD3d 796 (3rd Dept. 2003); People v. Felix-Torres, 286 AD2d 784 (3rd Dept), lv den., 97 NY2d 681 (2001).
As already discussed, this court's review of certain of the documents (those included in defendant's Exhibits A, B and E appended to this motion) has satisfied the court that there were no material inconsistencies between the trial testimony and the previously recorded statements. Such inconsistencies as may exist were inconsequential. Defendant had an opportunity, at the hearing held herein, to show otherwise and did not do so.
Defendant treats Exhibit C (Grant's Notice of Injury) as both a Rosario violation and as newly-discovered evidence. To the extent that defendant claims Exhibit C is an inconsistent prior statement, affecting the credibility of Grant, the court finds there is no reasonable possibility that the non-disclosure materially contributed to the result of the trial. The court will address later defendant's claim that Exhibit C shows bias.
Thus, although the People may have committed Rosario violations, there was no reasonable possibility that the non-disclosure materially contributed to the results of the trial.
Defendant's final argument is that the verdict should be set aside because new evidence has been discovered since the trial which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.
This newly-discovered evidence is alleged to be Agent Grant's claim of injury and her receipt of worker's compensation because, defendant argues, this evidence shows that Grant had a motive to falsify or exaggerate the extent of the incident to justify her claim for worker's compensation benefits and, thus, she was a biased witness. Defendant claims that the jury was unaware of this bias.
Another item alleged to constitute newly-discovered evidence is the missing line from Agent Grant's statement (Exhibit E) stating that Agent Shell had witnessed part of the incident.
Defendant argues that, given such information, defendant would have sought a missing witness charge (since the People did not call Shell) or would have commented, during summation, on the People's failure to call her.
With respect to defendant's claim of newly discovered evidence, the court makes the following findings of fact:
1. the documents relating to Agent Grant's claim for worker's compensation benefits, because of injuries received by her during the incident, were not discovered by defense counsel until after the trial;
2. Agent Grant was absent from work and received worker's compensation benefits for six months after the incident;
3. when Agent Grant testified at trial she was back at work, her worker's compensation claim had been resolved and she was no longer receiving benefits;
4. Agent Grant considered her injuries to be stress related and emotional rather than physical;
5. Agent Shell was not called as a witness at the trial. Her presence at the scene for a part of the incident was not made known to defense counsel until after the trial; and
6. Agent Shell did not witness the commencement of the incident. Her testimony (given at the hearing) was consistent with that of the People's trial witnesses and was merely cumulative.
It is well settled that, to prevail on a motion to set aside a verdict on the grounds of newly-discovered evidence, defendant must show, among other things, that the evidence is of such a character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant. CPL 330.30(3).
Such proof must be material and not be cumulative or merely impeaching or contradicting of the trial evidence. People v. Salemi, 309 NY 208 (1955), cert den. 350 US 950; People v. JinWai, 283 AD2d 326 (1st Dept. 2001); People v. Taylor, 246 AD2d 410 (1st Dept., 1998); People v. Cabrera, 1 AD3d 375 (2nd Dept. 2003); People v. Mack, 301 AD2d 863 (3rd Dept.), lv. den. 100 NY2d 540 (2003); People v. Hayes, 295 AD2d 751 (3rd Dept.) lv. den. 98 NY2d 730 (2003); People v. McCullough, 275 AD2d 1018 (4th Dept.) lv. den. 95 NY2d 936 (2001).
Vacating a conviction on this ground is a purely statutory remedy, granted solely in the discretion of the trial court. People v. Baxley, 84 NY2d 208 (1994); People v. Taylor, supra; People v. Mack, supra; People v. Hayes, supra.
The fact that Agent Shell witnessed a portion of the incident, which fact was not disclosed to defendant until after the trial, is not a basis for vacating the conviction. At the hearing held on defendant's motion, Agent Shell testified that when she arrived at the scene she saw a person on top of Agent Thompson, beating him. This testimony was wholly consistent with, and merely cumulative of the testimony given by the People's trial witnesses. (See, People v. McCullough, supra, 275 AD2d at 1019). It is also clear that Agent Shell did not witness the initiation of the incident and, thus, could give no material testimony relevant to defendant's claim of justification. (See, People v. Spence, 286 AD2d 617 (1st Dept.), lv. den. 97 NY2d 688 (2001); People v. Lewis, 284 AD2d 172 (1st Dept.), lv. den. 97 NY2d 706 (2001)).
Given these circumstances, any request made by defendant at trial, for a missing witness charge, would have been properly denied. cf. People v. Savinon, 100 NY2d 192 (2003); People v. Gonzalez, 68 NY2d 424 (1986).
Defendant's second ground for vacatur based upon newly-discovered evidence, the alleged bias of Agent Grant, is also without merit. Assuming, arguendo, that a non-disclosed claim for worker's compensation benefits may demonstrate a bias on the part of the witness, the disclosure of that claim for benefits would not have created a probability of a verdict more favorable to the defendant.
First, at the time Agent Grant testified at trial she had no need to give testimony to bolster her worker's compensation claim since that claim had already been ruled upon and Grant had received all of the relief to which she was found entitled. Furthermore, describing the defendant as the aggressor who did not act in self-defense in his assault upon Agent Thompson, would add nothing to Grant's claim for benefits.
Second, it is implausible and unlikely that the jurors considered Agent Grant a wholly disinterested or unbiased witness in the absence of knowledge of her claim. Certainly, she would have been expected to favor the actions of her partner and co-worker, Agent Thompson, who had come to her aid. Thus in evaluating her credibility, the jurors must have considered her a biased witness.
Finally, the fact that Agent Grant received injuries which prevented her from working and entitled her to benefits, if disclosed to the jury, would likely have been more hurtful than helpful to the defendant. Furthermore, to show that Agent Grant misspoke when she answered "no" to the question of whether she was injured would merely be impeaching of her testimony and is not a basis for overturning the jury's verdict.
For the reasons set forth, the defendant's motion, to set aside the verdict convicting him of assault in the third degree and harassment in the second degree, is denied.
This opinion constitutes the decision and order of the court.