When a jury asks clarifying questions of the court when deliberating, the court must meaningfully answer the question, without prejudicing the defendant. In People v. Wood (4th Dept. 7/25/2018), the Fourth Department held that a supplemental instruction provided by the court in response to a jury question constituted an abuse of discretion.
The defendant in this case was convicted by a jury verdict of two counts of CPW 2º and one count of Menacing 2º. (The first count of CPW 2º charged possession outside the home of a loaded firearm. The second count of the same crime charged possession with intent to use it against another.)
This case arose from a breakfast at a restaurant, which the defendant deemed cost too much and complained. Weeks later, he returned to the restaurant with a loaded gun, pointing it at employees and demanding sexual favors in exchange for the cost of breakfast. He was asked to leave and did so, and was then apprehended nearby by police. At trial, the defendant testified that the gun was a war antique of his grandfather’s and he was transporting it to another individual, keeping it on his person so that it was not stolen. The defendant claimed that he entered the restaurant to make amends with the complainant after his initial outburst. In his version of events, she insulted him, so he insulted her back and left, never displaying the weapon.
During juror deliberations, the jury sent a note requesting clarification on the terms “intent” and “unlawfully.” Specifically, the jurors asked “Does that mean when he put the gun in his waistband, when he stepped out of the car or when he pulled it out of his pants or at any point in time he was in possession of the gun?” The court recessed for the evening without answering those questions. In the morning, the jury also requested a read-back of any interaction between the defendant and the complainant.
At the prosecutor’s request, and over defense counsel’s objection, the court read the jury an additional instruction for the first time, stating in pertinent part “[t]he possession of a loaded firearm is presumptive evidence of intent to use the same unlawfully against another. What that means is that if the People have proven beyond a reasonable doubt that defendant possessed a loaded firearm, then you may, but are not required to, infer from the fact that he did so with the intent to use the same unlawfully against another.” Within two minutes, the jury had reached a verdict.
Pursuant to CPL 310.30, the jury may at any time ask the court to clarify an instruction, but when answering the court must be careful not to prejudice the defendant. In this case, the Fourth Department found that the trial court did not do so. The court instructed the jury that the defendant’s possession of the gun was presumptive evidence of intent to use it unlawfully. This was not responsive to either note sent by the jury, as well as prejudicial to the defendant because it introduced new principles of law after summations.
Further, the Court found that this error was not harmless. However, as to the first count of CPW, the Court did not reverse because that count did not require intent, and the trial testimony established every element of the crime. The Court did, however, grant a reversal and a new trial with respect to one count of CPW and one count of Menacing, (JC)