| People v Clark |
| 2013 NY Slip Op 05013 [108 AD3d 797] |
| July 3, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vFrederick W. Clark Jr., Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered March 3, 2011, upon a verdict convicting defendant of the crimesof assault in the first degree, criminal possession of a controlled substance in the seventhdegree and making a punishable false written statement, and the violation of unlawfulpossession of marihuana (two counts).
On the evening of December 10, 2009, defendant, his girlfriend, Sharon Capone, andher cousin were at defendant's residence in the City of Saratoga Springs, SaratogaCounty when Jerson Vargas and his girlfriend, among others, stopped by to see Capone'scousin. While there, everyone present used some form of illegal drugs (cocaine, crackcocaine or marihuana), and Vargas and defendant purportedly struck a deal wherebyVargas and his girlfriend would be allowed to do a few loads of laundry and "chill[t]here for the night" in exchange for Vargas furnishing an additional quantity of drugs.Somewhere around the third load of laundry, Capone decided that it was time for Vargasand his girlfriend to leave and enlisted defendant's help in this regard. A "shoutingmatch" ensued between Vargas and defendant in defendant's bedroom, during the courseof which defendant shot Vargas in the leg with a .30-30 caliber rifle. Defendant thendrove Vargas to Saratoga Hospital, where Vargas, who was on parole at the time, falselyreported that he had been shot by an unknown assailant in the City of Schenectady,Schenectady County.
Defendant thereafter was indicted and charged with assault in the first degree, assaultin [*2]the second degree (two counts), menacing in thesecond degree (two counts), criminally using drug paraphernalia in the second degree,criminal possession of a controlled substance in the seventh degree, making a punishablefalse written statement and unlawful possession of marihuana (two counts). Following ajury trial, defendant was convicted of assault in the first degree, criminal possession of acontrolled substance in the seventh degree, making a punishable false written statementand unlawful possession of marihuana (two counts) and thereafter was sentenced to,among other things, 7½ years in prison for the assault conviction. This appeal bydefendant ensued.
Of the various arguments advanced by defendant, only two warrantdiscussion—specifically, County Court's response to the jury's request for "a copyof the charges and [the] law" and County Court's subsequent response to the jury'srequest for a read back of Vargas's testimony regarding the confrontation with defendant.As the procedures employed by County Court in each of these situations depriveddefendant of a fair trial, we reverse defendant's conviction and remit this matter forfurther proceedings.
At the conclusion of its oral charge, County Court inquired of counsel as to whetherthere was any objection to providing the jury with a written copy of that portion of thecharge defining the elements of the crimes at issue and the defense of justification (compare People v Townsend,94 AD3d 1330, 1331 [2012], lv denied 19 NY3d 1105 [2012]). Defensecounsel raised no objection in this regard (compare People v Owens, 69 NY2d585, 589-591 [1987]), and County Court thereafter provided the jury with that portion ofits charge in writing. After the jury commenced deliberations, it sent a note to CountyCourt setting forth a number of requests, including "a copy of the charges and law," inresponse to which County Court summarily indicated—without further inquiry orelaboration—that such materials already had been provided.
As it was unclear from the jury's note whether the jury simply was seeking theportion of the written charge previously promised by County Court or some otherunidentified portion of the charge (or even the charge in its entirety), it was incumbentupon County Court to explore this inquiry with the jury and clarify the nature of thejury's request or, at the very least, ascertain whether its response to the jury's request wassatisfactory. None of those measures was undertaken here, and "County Court'sperfunctory response[ ] to the [jury's request] can hardly be said to have beenmeaningful" (People v Pyne, 223 AD2d 910, 912 [1996], lv denied 88NY2d 940 [1996]). Although defense counsel did not object to the manner in whichCounty Court responded to the jury's inquiry, County Court failed "to provide ameaningful response to the jury" and, in so doing, failed to fulfill its "core responsibility"in this regard (People vKisoon, 8 NY3d 129, 134, 135 [2007]). Accordingly, no objection was requiredto preserve this issue for appellate review (see People v Woodrow, 89 AD3d 1158, 1159 [2011],lv denied 19 NY3d 978 [2012]).
Further, even assuming that the procedure followed by County Court with respect tothe jury note did not constitute reversible error, we nonetheless would conclude that aseparate, independent basis for reversal exists here—namely, the procedureemployed by County Court in responding to the jury's request for a read back of Vargas'stestimony regarding "the confrontation with [defendant] in the bedroom" of defendant'sresidence. Although CPL 310.30 affords a trial court a certain degree of latitude inresponding to a jury request for additional information, the court's response must bemeaningful (see People vWilson, 90 AD3d 1155, 1156[*3][2011], lvdenied 18 NY3d 963 [2012]; People v Faulkner, 195 AD2d 384, 385[1993]).[FN*]Additionally, "[a] request for a reading of testimony generally is presumed to includecross-examination which impeaches the testimony to be read back, and any suchtestimony should be read to the jury unless the jury indicates otherwise" (People vJones, 297 AD2d 256, 257 [2002] [citation omitted], lv denied 98 NY2d 769[2002]; see People v Faulkner, 195 AD2d at 385; People v Berger, 188AD2d 1073, 1074 [1992], lv denied 81 NY2d 881 [1993]).
Here, County Court directed the stenographer to read back only that portion ofVargas's direct examination testimony that described the confrontation with defendant inthe bedroom. Defense counsel strenuously objected, asserting that the jury should hearVargas's testimony in its entirety. Although the jury's inquiry did not require a reading ofVargas's testimony from start to finish, we nonetheless are persuaded that the read backprocedures employed here "seriously prejudiced . . . defendant andconstituted reversible error" (People v Smith, 68 AD3d 1021, 1022 [2009]; seePeople v Lourido, 70 NY2d 428, 435 [1987]). Despite the stenographer's bestefforts, our review of the record reveals that the jury was not in fact provided with all ofVargas's testimony on direct examination relative to the confrontation in the bedroom,nor was it provided with any of the testimony elicited from Vargas in this regard oncross-examination. Additionally, even accepting the People's assertion that Vargas'stestimony on cross-examination did not directly impeach his prior testimony with respectto the confrontation at issue, attacking Vargas's credibility in general—and, in sodoing, calling into doubt his version of the altercation with defendant—was both aviable strategy and potentially fertile ground for the defense. Vargas, by his ownadmission, had multiple criminal convictions and was out on parole at the time of theunderlying incident—all of which prompted him to concoct a story designed toexplain the shooting while deflecting attention away from the drugs-for-laundry deal hehad struck with defendant. Under these circumstances, County Court's decision to limitthe requested read back to only those portions of Vargas's testimony elicited on directexamination seriously prejudiced defendant and deprived him of a fair trial (seePeople v Smith, 68 AD3d at 1022; People v Lewis, 262 AD2d 584, 584[1999]; compare People vAller, 33 AD3d 621, 622 [2006], lv dismissed 8 NY3d 918 [2007];People v Jones, 297 AD2d at 257)—particularly given that the jury wasnot asked whether (nor did it otherwise indicate that) it was satisfied with County Court'sresponse to its inquiry (comparePeople v Coleman, 32 AD3d 1239, 1240 [2006], lv denied 8 NY3d 844[2007]; People v McDermott, 185 AD2d 384, 386 [1992], lv denied 80NY2d 906 [1992]). Notably, County Court's error in this regard was exacerbated whenthe jury requested a similar read back of the testimony offered by two other witnesses,and the court—correctly—permitted the jury to hear at least a portion of thetestimony provided by such witnesses on cross-examination.
We therefore conclude that the foregoing errors—individually andcumulatively—deprived defendant of a fair trial. Accordingly, the judgment ofconviction is reversed, and this matter is remitted for a new trial. Defendant's remainingcontentions, including his assertion that the verdict is against the weight of the evidence,have been examined and found to be lacking in merit.[*4]
Lahtinen, J.P., Spain and McCarthy, JJ., concur.Ordered that the judgment is reversed, on the law, and matter remitted to the CountyCourt of Saratoga County for a new trial.
Footnote *: "In interpreting theadequacy of the court's response, we consider the form of the question, the particularissue raised, the supplemental instruction actually given and the prejudice, if any, to thedefendant" (People v Wilson, 90 AD3d at 1156-1157 [citation omitted]).