Conviction Overturned Where Trial Court Negotiated a Cooperation Agreement with a Co-Defendant

In New York, unlike other states and the federal system, trial judges and defendants may bypass the People and enter into plea negotiations directly. This is not uncommon. However, in People v. Towns (Ct. App. 5/7/2019), the Court of Appeals held that the trial court “abandoned the role of a neutral arbiter and assumed the function of an interested party” when it entered into a cooperation agreement with a co-defendant, which required that individual to testify against Towns in exchange for a more favorable sentence. The Court’s decision was unanimous, although Judge Rivera would have gone a step further and held that the trial judge showed actual bias.

The case was a simple, straightforward robbery, in which the issue was the identity of the perpetrators. The co-defendant implicated the defendant. His plea agreement with the judge called for a possible punishment of between 9 and 15 years; the judge, however, promised a sentence on the low end of the range if the co-defendant cooperated in the defendant’s case. At the defendant’s trial, the prosecution elicited that the co-defendant had not entered into a cooperation agreement with the district attorney’s office. The judge instructed the jury that the agreement was between the co-defendant and the court.

The Appellate Division criticized the trial court but upheld the conviction, finding that the court’s conduct did not deprive the defendant of a fair trial.

The Court of Appeals disagreed, analogizing to cases where judges made caustic remarks, called its own witnesses at trial, aggressively cross-examined witnesses, or acted as an appellate court in its own case. The focus, for the Court of Appeals, was the lack of neutrality that the judge showed. The Court was particularly troubled by the trial court’s statements tying its understanding of truthful testimony with the co-defendant’s prior statement:

Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain.

The case was remitted for trial before a different judge. (LC)

Unanswered Jury Notes: Cause for New Trial?

In People v. Parker (Ct. App. 6/28/2018) (Rivera, J.),  the Court granted the defendants’ request for a new trial due to the trial court’s failure to provide “meaningful notice” of two jury notes to defense counsel. The defendants were convicted of Robbery 2º after allegedly robbing thousands of dollars from a commercial establishment.

On the second day of jury deliberations, the jury sent three notes to the court: one note requested definitions of the charged crimes and testimony linking witnesses to where the defendants were seen and caught; a second note requested further testimony relating to fingerprint evidence; and a third requested testimony from the victim and his wife. In response to the jury’s notes, the court initially responded to solely the first note and subsequently dismissed the jury for a one-hour lunch break. However, immediately after the break and without receiving response to its latter two notes, the jury entered a verdict.

Under CPL § 310.30, a trial court is required to direct that the jury be returned to the courtroom after notice has been given to the defense counsel of any substantive notes provided by the jury. This allows defense counsel an opportunity to formulate a response to the jury’s inquiries before the jury’s return to the courtroom. In this case, it was undisputed that the defense counsel was not informed of the contents of the latter two jury notes. As the Court provides in its opinion, the proof that the trial court relayed the substance of the notes to the defense counsel must be specifically in the record. Here, it was not. Therefore, the Court found that the “sole remedy” in failing to comply with CPL § 310.30 was to reverse and grant the defendants’ a new trial.

Chief Judge DiFiore dissented, remarking that the holding of the majority’s leading precedent focused on a more general concept. She argued that O’Rama‘s holding required the trial court’s compliance with providing notice to defense counsel of the jury notes; it did not mandate the inclusion of such notice in the record. The Chief Judge wrote that the defense counsel was indeed informed of the overall substance of the jury notes in an off-the-record meeting. As such, she argued that ordering a new trial was an excessive remedy and completely off-base with O’Rama‘s requirements. Instead, Chief Judge DiFiore proposed the remedy of a reconstruction hearing, which is provided to amend ambiguities in the record. Importantly, the Chief Judge also noted that the jury was well aware that the trial court had not responded to the latter two notes it had received. However, the jury’s verdict ultimately rescinded the requests in those notes, further supporting the argument that ordering a new trial was unwarranted (AP/LC).

Speedy Proceedings Leading to Involuntary Plea Deals?

It is well established that trial courts have the responsibility of ensuring that a defendant who pleads guilty is doing so knowingly, voluntarily, and making an intelligent choice among alternative courses of action. However, this does not require courts, at the time of the defendant’s guilty plea, to ask defendants an established set of questions to ensure that the guilty plea is entered into knowingly and voluntarily. In People v. Cappiello (App. Term 2d Dept. 2018) the Appellate Term, Second Department, upheld the defendant’s guilty plea as having been entered into knowingly, voluntarily, and intelligently and that the defendant understood the consequences of her plea.

During the defendant’s arraignment, the prosecutor made the court aware that there was a plea agreement in place in which the defendant would plead guilty to one count of Petit Larceny (Penal Law § 155.25) and would serve a 20 day sentence. In response, defense counsel stated that he had spoken with the defendant, and after advising her of her rights and the offer from the D.A., she had advised him to enter a plea of guilty with the understanding that she would only serve 20 days in jail. Defense counsel then waived a formal allocution.

This case drew a dissent from Judge Weston in which he voted to reverse the judgment of conviction, vacate the defendant’s guilty plea, and dismiss the accusatory instrument in the interest of justice. Quoting the arraignment transcript, Judge Weston took issue with the lack of dialogue between the court and the defendant when she was entering her guilty plea. Unlike other cases where a judge may ask the defendant a series of questions regarding the guilty plea, here, the defendant had no interaction with the court. As Judge Weston pointed out, the only proof that defendant waived her rights was her counsel’s general statement that he had “advis[ed] her of her rights,” which was not made in response to any court inquiry. This lack of on the record evidence calls into question whether or not the defendant truly knew the consequences of her guilty plea.

While Judge Weston understood the policy behind judges needing to keep arraignments moving quickly in the interest of judicial economy, he stated that a court still has the responsibility to ensure that a defendant enters a voluntary and knowing guilty plea.  (MK/LC)

When Deliberating Jurors Ask a Question, Answer It

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.”

Mode of Proeedings Errors and Jury Notes

In 1991, the Court of Appeals in People v. O’Rama articulated the proper procedure a court should go through when there is a note from the jury during the course of a trial: Upon receiving a jury note, a trial court should (1) mark the note as a court exhibit and read it into the record before the jury is called in (thereby ensuring adequate appellate review); (2) afford counsel an opportunity to suggest responses to the note; (3) inform counsel of the substance of the court’s proposed response (thereby giving counsel an opportunity to suggest appropriate modifications before the jury is returned to the courtroom); and (4) read the note aloud in open court before the jury so that any inaccuracies may be corrected by the individual jurors.

In People v. Morrison (Ct. App. 6/28/2018), the Court of Appeals, in an unsigned memorandum affirming the order of the Appellate Division, held that the trial court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error that required reversal. This decision by the Court drew dissents from Chief Judge DiFiore as well as Judge Garcia.

The case stemmed from the rape of a 90-year-old Alzheimer’s patient in her nursing home.