| People v Gruyair |
| 2010 NY Slip Op 05859 [75 AD3d 401] |
| July 1, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alexis Gruyair, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew C. Williams of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 16,2005, convicting defendant, after a jury trial, of attempted murder in the second degree andassault in the first degree, and sentencing him to concurrent terms of 12 years, unanimouslyaffirmed.
During the first two days of deliberations, the jury sent eight notes asking for, inter alia,readback of testimony and legal instructions. Each of those notes was marked as a court exhibitand reviewed by the prosecutor and counsel. On the third day of deliberations, at 11:10 a.m., thejury sent note number IX marked "Confidential," stating: "We the jury request clarification onwhat happens after the verdict is read. We would like to be escorted out & be able to leave thebuilding without having contact with any observers in this Court."
At 11:45 a.m., the jury sent out note number X, informing the court it had reached a verdict.Before bringing the jury into the courtroom, the court advised all present—parties andspectators—that the jury was about to render its verdict, and that everyone should "staysilent" and "let them leave the room." After the foreperson read the verdict, the court polled thejurors, and had them retire to the jury room. The court then arranged for court officers to escortthem out of the courthouse.
Three years later, in May 2008, defendant moved, pursuant to CPL 440.10, to vacate hisconviction, arguing that the trial court committed error by failing to inform his counsel of notenumber IX and further erred by failing to respond to the note. The court denied the motionwithout a hearing, acknowledging that it had not shown the note to defendant or counsel.Consistent with the jurors' wishes as expressed in the note, and without comment to anyone, thecourt allowed the jurors to leave the room and the building, escorted by court officers. The courtfound defendant's argument on the CPL 440.10 motion to be without merit as the note inquestion—rather than a "substantive" inquiry—belonged more "to the category ofcoffee and snack requests." The court stated that the jury's request concerning its mode of exitfrom the courthouse after the verdict was "quite common in cases, like this one, which involve alarge cast of characters who freely and unashamedly proclaim their violent criminal histories."The court [*2]concluded that the note did "not imply improperinfluence on deliberations; it simply evidences that the jurors are streetwise New Yorkers."
We denied defendant's motion for leave to appeal from the denial of this motion on May 26,2009.
CPL 310.30 provides that upon a jury's request, during deliberations, "for further instructionor information with respect to the law, with respect to the content or substance of any trialevidence, or with respect to any other matter pertinent to the jury's consideration of the case. . . the court must direct that the jury be returned to the courtroom and, after noticeto both the people and counsel for the defendant, and in the presence of the defendant, must givesuch requested information or instruction as the court deems proper."
The statute imposes two separate duties on the court following a substantive juror inquiry: tonotify counsel, and to give a meaningful response (People v Kisoon, 8 NY3d 129, 134 [2007]). Procedurally,"whenever a substantive written jury communication is received by the Judge, it should bemarked as a court exhibit and, before the jury is recalled to the courtroom, read into the record inthe presence of counsel. . . . After the contents of the inquiry are place on therecord, counsel should be afforded a full opportunity to suggest appropriateresponses. . . . Finally, when the jury is returned to the courtroom, thecommunication should be read in open court so that the individual jurors can correct anyinaccuracies in the transcription of the inquiry" (People v O'Rama, 78 NY2d 270,277-278 [1991]).
On the other hand, a "ministerial communication" that is "wholly unrelated to the substantivelegal or factual issues of the trial" may not require such a rigorous procedure (see People vHarris, 76 NY2d 810, 812 [1990]).
Instructive in this regard is People vOchoa (14 NY3d 180 [2010]), where the court received two notes on the day of theverdict. The first note, written at 1:25 p.m., stated: "Have reached a verdict" (id. at 184).The second, written 55 minutes later, was a personal note from the foreperson, stating, "Yourhonor, I do not feel comfortable reading this verdict" (id.). The court met with theforeperson without informing defense counsel beforehand. Immediately thereafter, in open court,the judge informed the prosecutor and counsel that two notes had been received. It explained thatwith respect to the second note, the court asked the foreperson to come in and explain why hedidn't feel comfortable. The juror told the court that "he didn't want to go through and have tosay what the verdict was, never telling me [the court] the verdict. . . . I explained tohim how it goes and all he has to do is answer guilty or not guilty. And then he seemed relievedand he said, 'Oh, okay, fine' " (id. at 185).
The Court of Appeals, while noting that a more prudent course of action would have been tofollow the O'Rama procedure, nonetheless found that the note was of a "ministerialnature" as it related only to the foreperson's concern about the manner of the delivery of theverdict. The court determined that the judge "acted within his discretion by seeking clarificationof the note's meaning before notifying defense counsel" (id. at 188), and affirmed theconviction.
While we emphasize that the better practice here would have been to disclose the note tocounsel and follow the procedure outlined in O'Rama, reversal is not warranted under theparticular facts of this case. The jurors' request to be escorted out of the building after the verdictwas delivered did not involve a request for "instruction or information" within the meaning ofCPL 310.30 and was unrelated to the substantive legal or factual issues at trial. "Consequently, itcannot be said that defendant's presence during this communication would have borne anyrelation, let alone any reasonably substantial relation, to his opportunity to defend [*3]against the charges. His presence, therefore, was notconstitutionally required" (Harris, 76 NY2d at 812). Concur—Gonzalez, P.J.,Sweeny, Richter, Abdus-Salaam and RomÁn, JJ.