Opinion
2004CN001832.
Decided April 4, 2006.
Defendant was convicted of Assault in the Third Degree, in violation of Penal Law § 120.00(1). He moves this Court for an order setting aside the jury verdict pursuant to Criminal Procedure Law § 330.30(1). For the reasons that follow, the motion is denied.
FINDINGS OF FACT
The complainant testified that at a trade show defendant grabbed him by the shoulder, spun him around, and punched him in the face so hard that the complainant fell into the metal end of a booth and lost consciousness. Two of the People's other witnesses corroborated the complainant's testimony, adding that after the complainant fell to the ground, the defendant ran towards him, punching him in the head, and kicked and stomped him.
Defendant contended that the complainant struck him first, that he punched the complainant in self-defense, and that thereafter he merely held the complainant down. He denied having subsequently kicked the complainant.
According to the testimony of both sides, the initial conversation between the complainant and defendant (during which defendant alleged that the complainant hit him) took place in an exit area of the trade show which was not visible to any of the other witnesses.
The trial took place on December 12, 14, 15 and 16, 2005. The jury began its deliberations on December 15, 2005. The jury sent a note to the Court, requesting the legal definition of justification and self defense (Court Exh. 1). The Court responded by rereading the definition of justification and directed the jury to continue its deliberations. At 9:45 p.m. the jury sent a note to the Court, stating, "We are unable to come to a decision and feel that if we spend more time we will not come to a verdict." (Court Exh. 2). The Court read the note into the record, and directed the jury to return the following day, December 16, 2005. Although a transit strike was threatened for December 16th, the strike was not declared, and the jury returned to Court on December 16th.
On December 16th the Court gave the jury the CJI Allen charge, and sent the jurors back to the jury room to deliberate. The jury sent a note to the Court, requesting the testimony of the complainant and the defendant "from the time [defendant] was in the back area/anteroom to the point of the punch." (Court Exh. 3). The Court directed the reporter to retrieve the requested testimony and sent the jury back to the jury room to await the retrieval of the testimony and readback.
The requested testimony was not promptly retrieved. As defendant concedes, the court reporter advised the Court that her machine was having problems, causing the delay. At 1:00 p.m., before the testimony could be read to the jury, the jury sent a note to the Court, stating, "We the jury request no readback of the testimony of [defendant] and [complainant]. We have reached a verdict." (Court Exh. 4). When the parties reassembled in the courtroom, the Court read the note into the record in the presence of the prosecution, defendant and defense counsel. The Court directed the court officer to bring the jury into the courtroom. Significantly, defense counsel did not object to the Court's procedure or request that the jury be given an opportunity to hear the previously-requested testimony. The jury returned to the courtroom and delivered its verdict.
CONCLUSIONS OF LAW
Criminal Procedure Law § 330.30(1) authorizes the Court to set aside a verdict upon "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Where, as here, the defense makes an argument in a 330.30(1) motion which it failed to raise prior to verdict, the argument is not a proper predicate for setting aside the verdict. People v. Albert, 85 NY2d 851, 853 (1995); People v. Russillo, 286 AD2d 992 (4th Dep't), lv denied, 97 NY2d 687 (2001); People v. Amato, 238 AD2d 432 (2nd Dep't) , lv denied, 90 NY2d 937 (1997). See People v. Starling, 85 NY2d 509 (1995).
A court's failure to give a deliberating jury a pertinent instruction does not constitute error so fundamental as to exempt it from preservation and waiver rules. People v. Bonaparte, 78 NY2d 26, 31 n. (1991). See, e.g., People v. Burgos, 248 AD2d 547 (2nd Dep't), lv denied, 92 NY2d 923 (1998) (where defendant contended that the trial court failed to respond meaningfully to notes from the jury, held: contention unpreserved since defense counsel was given notice of the contents of the jury notes and had knowledge of the substance of the court's intended response but failed to raise a timely objection).
Although an associate of defendant's trial counsel attended the proceedings on the morning of December 16th when the jury requested the readback and then delivered its verdict, trial counsel had informed the associate of the prior day's proceedings and of what might or might not occur on December 16th (Affirmation of Mitchell Flachner dated Feb. 2, 2006, para. 4 at 2). Moreover, the defense concedes that the associate was familiar with the case and, indeed, had represented defendant upon his arraignment in March 2004 (Flachner Aff. para. 4 at 2). Given the associate's familiarity with both the case and the state of the proceedings, there can be no claim that his failure to object to the Court's acceptance of the verdict was inadvertent.
The instant facts stand in contrast to those in People v. Lourido, 70 NY2d 428 (1987). There the defense objected that the jury had been allowed to continue to deliberate during the time that the readback request was pending and asked the court to inquire whether the jury wanted the requested sections of testimony read before delivering the verdict. Here defense counsel made no such objection or request, and tacitly acceded to the Court's direction that the jury be brought in to deliver its verdict.
Moreover, in the instant case no inquiry of the jury was required. In its note to the Court advising that it had reached a verdict, the jury specified that it did not need the readback. People v. Steward, 256 AD2d 1147 (4th Dep't 1998), lv denied, 93 NY2d 879 (1999). In view of the jury's note, any inquiry as to whether the jury would like to hear the previously-requested testimony would have been redundant.
The content of the jury's final note defeats defendant's claim that the delay in responding to the note requesting the read back may have led the jury to perceive that its request was being ignored. To the contrary, the note indicated that the jury was aware that its request was the cause of the delay in the Court's response: " We do not need the readback of the testimony of [defendant] and [complainant], we have reached a verdict." (Court Exh. 4). By advising the Court that it did not require the testimony, the jury indicated that the jurors had resolved the factual dispute by themselves and no longer needed to hear the testimony. See People v. Sanders, 227 AD2d 506 (2nd Dep't), lv denied, 88 NY2d 994 (1996); People v. Chandler, 110 AD2d 970 (3rd Dep't 1985). Accordingly, defendant suffered no prejudice as a result of the Court's failure to inquire as to whether the jury really meant it when it said that it did not require a readback.
This is the decision and order of the Court.