Opinion
July 8, 1993
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
The defendant was arrested after he aimed a loaded semiautomatic Uzi submachine gun at a police officer. Although the evidence was legally sufficient to establish the defendant's guilt and the verdict was not against the weight of the evidence (CPL 470.15), the judgment must be reversed due to numerous errors committed by the trial court.
The court's charge to the jury deprived the defendant of a fair trial. At defense counsel's request, the court charged the jury with respect to the defendant's decision not to testify. However, the charge impermissibly emphasized his decision and implied that his exercise of this right was a tactical maneuver. The court then failed to instruct the jury to draw no adverse inference from the defendant's decision not to testify (see, People v Allan, 192 A.D.2d 433; People v. Stinson, 186 A.D.2d 23; People v Wright, 174 A.D.2d 522; People v. Garcia, 160 A.D.2d 354, appeal dismissed 76 N.Y.2d 934; see also, People v. Marabel, 186 A.D.2d 53, lv denied 81 N.Y.2d 764).
The court's reasonable doubt charge was also erroneous. As noted by the Court of Appeals in People v. Antommarchi ( 80 N.Y.2d 247, 252), "[a]n instruction that requires jurors to supply concrete reasons `based upon the evidence' for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes", thereby shifting the burden of proof (see also, People v. Allan, supra). Moreover, the hypotheticals offered by the court to explain the concept of reasonable doubt, scientific laboratories juxtaposed with Lotto, only served to provide confusion rather than clarification for the jury (see, People v. Stinson, supra; People v. Nunez, 182 A.D.2d 527, 528 [Sullivan, J., concurring], lv denied 80 N.Y.2d 836).
The prosecution witnesses at trial were all police officers. Accordingly, the defense requested a jury instruction on the credibility of police officers. Instead of providing the jury with the standard charge (1 CJI[NY] 7.08), the court instructed the jury to consider the witnesses' position in the community, education, job, status in the community and lifestyle. Rather than instructing the jury that a police officer's credibility should be evaluated in the same manner as any other witness, and that the mere fact that a witness is a police officer does not require that his or her testimony be given any greater or lesser credibility than that of any other witness, the court instructed the jury that "you are to consider the fact that a person is a police officer in weighing that person's testimony." Both branches of this instruction have been cited as reversible error in the past (People v. Allan, supra; People v. Rawlins, 166 A.D.2d 64).
Also to be noted was the court's instruction to the jury that some of the evidence they heard at the trial was unimportant. While a court may properly instruct a jury that it must evaluate the relative importance of all the evidence, by the instruction given, the Judge usurped the jury's function. The defendant was also prejudiced by the court's direction to the jury to evaluate the religious ardor displayed by the witnesses in taking the oath.
Further errors were committed by the court in response to notes submitted by the jurors during their deliberations. The jurors asked to see the gun purportedly used in the incident and the court permitted a court officer to enter the jury room and tell them that their request was refused. When two of the jurors asked the officer how the gun worked, he told them that he could not show them. The court, in response to defense counsel's objections, thereafter brought the jurors into the courtroom and informed them that they could see the gun without the court officer being present. The defendant was not present during this instruction. Despite defense counsel's request, the court refused to instruct the jury not to speculate about the defendant's absence. Moreover, the court never addressed the jury's actual request, an instruction on the operation of the gun.
In response to another jury note, a note written by defense counsel and the prosecutor was sent back informing the jury that the Judge decided that for their own safety, they would not be permitted to see the gun and the ammunition at the same time. Again, such instruction was provided in the absence of the defendant.
Pursuant to CPL 310.30, when a deliberating jury requests additional instructions, the court must return the jury to the courtroom and, after proper notice to counsel "and in the presence of the defendant", give such requested information or instructions (People v. Mehmedi, 69 N.Y.2d 759, 760). The right to be present during instructions to the jury is "absolute and unequivocal" and cannot be waived by defense counsel (supra, at 760; see also, People v. Lopez, 156 A.D.2d 476, lv denied 75 N.Y.2d 921). Moreover, the delegation of the Judge's duty to respond to the jury's notes to a court employee and then to the attorneys, also deprived the defendant of his right to a trial by jury, supervised by a Judge (People v. Bayes, 78 N.Y.2d 546, 551; People v. Ahmed, 66 N.Y.2d 307).
Finally, the court violated the defendant's constitutional and statutory right to a trial by a jury of his choice when it discharged a sworn juror in the absence of the attorneys and the defendant (People v. Washington, 75 N.Y.2d 740, revg on dissenting mem 151 A.D.2d 384, 385; People v. Page, 72 N.Y.2d 69; People v. Buford, 69 N.Y.2d 290; cf., People v. Robustelli, 189 A.D.2d 668; People v. DeMatteis, 186 A.D.2d 460, lv denied 81 N.Y.2d 969). Defense counsel only consented to the discharge at the court's urging and only in light of the futility of objecting since the deed was already done. There was no indication that the juror, who informed the court that he would be returning to the city in two days following a funeral, was unwilling or unable to continue serving (People v. Washington, supra).
In light of the aforementioned errors, a new trial is ordered.
Concur — Carro, J.P., Rosenberger, Ellerin, Wallach and Rubin, JJ.