| People v Slide |
| 2010 NY Slip Op 06819 [76 AD3d 1106] |
| September 28, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Terraine Slide, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Steven A. Hovani and GuyArcidiacano of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle,J.), rendered September 4, 2008, convicting him of murder in the second degree, burglary in thefirst degree, and criminal possession of a weapon in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Suffolk County, for a new trial.
On May 12, 2007, the defendant and four other individuals were arrested and charged with,inter alia, murder in the second degree (Penal Law § 125.25 [3]) (felony murder), burglaryin the first degree (Penal Law § 140.30 [1]), and criminal possession of a weapon in thesecond degree (Penal Law § 265.03 [3]), for their alleged involvement in stealing a wristwatch and marijuana from the home of the victim, Carlton Shaw, who was shot and killed duringthe course of the burglary on May 7, 2007. The four codefendants entered into plea agreements,while the defendant proceeded to a jury trial.
In a pretrial omnibus motion, the defendant moved, inter alia, for a hearing pursuant toPeople v Sandoval (34 NY2d 371, 374 [1974]; see CPL 240.43). The Peopleconsented to the hearing and in their papers, stated that "[i]f the People intend to introducetestimony of the defendant's prior bad acts, we will move the Court, in a written application,pursuant to People v Molineux [168 NY 264] with adequate notice to defense counsel."In an order dated March 11, 2008, the Supreme Court granted the defendant's request for aSandoval hearing to be conducted immediately prior to trial. However, no hearing washeld, and the People never notified the defendant of their intention to impeach his credibility withrespect to any prior criminal, vicious, or immoral acts.
During the jury trial, three codefendants testified against the defendant pursuant to their pleaagreements, in addition to other witnesses, while the defendant was the only one to testify on hisown behalf. Over defense counsel's objection, the Supreme Court permitted the People toquestion the defendant extensively about two prior arrests: one for shoplifting from a Target storeon February 4, 2007, and another for unlawful possession of marijuana on April 20, 2007, as wellas about his school disciplinary record, including his several suspensions. The People alsoquestioned the defendant about his mother's [*2]incarceration as aresult of an unrelated shooting of another individual.
Although the Supreme Court instructed the jury to disregard some of the questions relating tothe defendant's mother's past, no limiting instruction was given to the jury with respect to theevidence of the defendant's prior arrests or bad acts, despite defense counsel's objections.Defense counsel moved for a mistrial, arguing that the prosecutor's reference to the defendant'smother's shooting arrest was made for the purpose of inflaming the jury and to imply that thedefendant had a propensity to shoot another person because of his mother's behavior. TheSupreme Court denied the motion for a mistrial, reasoning that it had instructed the jury todisregard the testimony at the time it was elicited.
In addition, the defendant challenged the voluntariness of his statements to the police bytestifying during the trial that they were the product of verbal threats and physical abuse by thepolice. In this regard, the Supreme Court eventually instructed the jury on the issue ofvoluntariness, in relevant part, as follows:
"There is testimony that while the defendant was in custody he was questioned by the policeand made certain oral and written statements . . .
"Also under our law, if you find that the defendant made the statement as a result of policequestioning, you may still not consider it as evidence in the case unless the People have provenbeyond a reasonable doubt that the defendant made the statement voluntarily.
"How do you determine whether the People have proven beyond a reasonable doubt that thedefendant made a statement voluntarily?
"Initially under our law, before a person in custody may be questioned by the police, thatperson first must be advised of his rights. Second, he must understand those rights. And third, hemust voluntarily waive those rights and agree to speak to the police. If any one of those threerequirements is not met, a statement made in response to questioning is not voluntary and,therefore, you must not consider it."
The defendant was convicted of murder in the second degree, burglary in the first degree, andcriminal possession of a weapon in the second degree.
On appeal, the defendant argues, inter alia, that his conviction should be reversed, oralternatively, that his sentence should be reduced, because the People violated the requirementsof People v Sandoval (34 NY2d at 374), the prosecutor's questions alluding to hismother's incarceration were highly prejudicial as they implied that he had a genetic propensity forcommitting crimes, the evidence was legally insufficient to support the convictions, and theverdict was against the weight of the evidence. In response, the People contend, in essence, thatthe trial errors, if any, were harmless. On this record, we find that the defendant was deprived ofa fair trial and, accordingly, reverse the judgment of conviction and order a new trial.
Criminal Procedure Law § 240.43 provides, in relevant part, that "[u]pon a request bya defendant, the prosecutor shall notify the defendant of all specific instances of a defendant'sprior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledgeand which the prosecutor intends to use at trial for purposes of impeaching the credibility of thedefendant." (See People v Grant, 7NY3d 421, 424 [2006]; People v Kello, 96 NY2d 740, 743-744 [2001]; People v Adams, 39 AD3d 1081,1082 [2007].) In its discretion and in the interest of justice, the trial court "must then determinewhether and to what extent 'the prejudicial effect of the admission of evidence thereof forimpeachment [*3]purposes would so far outweigh the probativeworth of such evidence on the issue of credibility as to warrant its exclusion' " (People v Montoya, 63 AD3d 961,963 [2009], quoting People v Sandoval, 34 NY2d at 378; see People v Hayes, 97NY2d 203, 207-208 [2002]).
Here, over defense counsel's objections, the Supreme Court permitted the People to questionthe defendant extensively about his two prior arrests, the underlying facts of those arrests, and hisschool disciplinary record, without providing him the opportunity to demonstrate whether therewould be undue prejudice from the "unnecessary and immaterial development of previousmisconduct" (People v Sandoval, 34 NY2d at 378; see People v Adams, 39AD3d at 1082). Since the Supreme Court failed to conduct a pretrial Sandoval hearing,and the People failed to provide adequate notice to the defendant of their intention to impeach hiscredibility, the Supreme Court committed error in allowing the People to cross-examine thedefendant about those prior bad acts, and thereby deprived the defendant of his right to a fair trial(see People v Beasley, 184 AD2d 1003, 1003-1004 [1992], affd 80 NY2d 981,982 [1992]; People v Montoya, 63 AD3d at 961; People v Marrow, 301 AD2d673, 675 [2003]).
Compounding this error, the Supreme Court's charge with respect to the voluntariness of thedefendant's confession was incomplete. Although the jury charge error was not preserved forappellate review (see CPL 470.05 [2]; People v Salnave, 41 AD3d 872, 873-874 [2007]; People v Farrell, 13 AD3d 644,645 [2004]), we reach this issue in the exercise of our interest of justice jurisdiction because,"[w]hen a defendant raises a factual issue regarding the voluntariness of a confession, he or she isentitled to a voluntariness charge" (People v Sanchez, 293 AD2d 499, 500 [2002]; seePeople v Cefaro, 23 NY2d 283, 286-287 [1968]). CPL 710.70 (3) provides that "[n]othingcontained in this article, however, precludes a defendant from attempting to establish at a trialthat evidence introduced by the people of a pre-trial statement made by him should bedisregarded by the jury or other trier of the facts on the ground that such statement wasinvoluntarily made within the meaning of section 60.45. Even though the issue of theadmissibility of such evidence . . . was determined adversely to the defendant uponmotion, the defendant may adduce trial evidence and otherwise contend that the statement wasinvoluntarily made. In the case of a jury trial, the court must submit such issue to the jury underinstructions to disregard such evidence upon a finding that the statement was involuntarilymade." (See People v Perretti, 278 AD2d 597, 598 [2000].) A confession, admission, orother statement is "involuntarily made" by a defendant when it is obtained from him or her: "Byany person by the use or threatened use of physical force upon the defendant or another person,or by means of any other improper conduct or undue pressure which impaired the defendant'sphysical or mental condition to the extent of undermining his ability to make a choice whether ornot to make a statement." (CPL 60.45 [2] [a]; see People v Graham, 55 NY2d 144[1982].) "[T]he People must prove the voluntariness of a confession beyond a reasonable doubt"(People v Mateo, 2 NY3d 383, 416 n 20 [2004], cert denied 542 US 946 [2004];see People v Anderson, 42 NY2d 35, 38-39 [1977]).
Here, the Supreme Court gave the above-quoted charge to the jury, and further explained thatthe defendant must be advised of his right to remain silent, that anything he says may be usedagainst him in court, and that he has a right to counsel. Additionally, the Supreme Court restatedthat if the People did not prove beyond a reasonable doubt that the statement was voluntarilymade, then the statement should be disregarded. The Supreme Court, however, failed to provideany instruction to the jury explaining that a statement obtained by the use, or threatened use, ofphysical force, or by other improper conduct, could be considered involuntarily made (seeCPL 60.45 [2]). Due to the incomplete charge, the jury erroneously was deprived of anyinstructions regarding the standards by which to evaluate the [*4]defendant's claim that the statement at issue had been coerced(see People v Rose, 223 AD2d 607, 608 [1996]; People v Murray, 130 AD2d773, 774-775 [1987]).
We also note that the prosecutor made certain inappropriate remarks during summationwhich conveyed to the jury that there may have been additional evidence, not admitted at trial,that would further support a guilty verdict. Specifically, the prosecutor stated:
"just a moment with respect to the plea deals, yes, the cooperators who came in here andtestified, the participants, . . . they did plead to lesser crimes . . .
"And at the end of this trial, ladies and gentlemen, whatever your verdict is, . . .I will be downstairs in the lobby, and I will be there. And if you want to talk to me, only if youwant to talk to me, I will talk to you. And we will talk about these plea deals. About[codefendant] Christopher Overton and trial decisions, and trial strategies. Anything you want toknow about this case, I will be happy to answer your questions.
"But it's not something for you to think about now. That is all the judge's responsibility."
Once again, while the defendant's current challenge to these remarks is unpreserved forappellate review, "our Court nevertheless retains the statutory authority to reverse the convictionand order a new trial as a matter of discretion in the interest of justice upon finding that the errorsat trial, although not duly protested, deprived the defendant of a fair trial" (People v Kass, 59 AD3d 77, 91[2008]; see CPL 470.15 [3] [c]; [6] [a]). The cumulative nature of the trial errors,aggravated by these summation remarks, embodies such a situation (see People v Riback, 13 NY3d416, 423 [2009]; People v Calabria, 94 NY2d 519, 523 [2000]; People v Gibian, 76 AD3d 583[2010]). Although we are satisfied, upon reviewing the record, that the evidence was legallysufficient to support the convictions and that the verdict of guilt was not against the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Romero, 7 NY3d 633[2006]), we nevertheless "find the conclusion inescapable that the verdict of guilt in this casemay not be the result of honest fact-finding," but rather the result of the trial errors (People vBadine, 301 AD2d 178, 183 [2002]; see People v Dean, 50 AD3d 1052, 1056 [2008] ["the conduct ofthe trial, when viewed as a whole, evinces such undue prejudice to the defendant that she wasdeprived of her constitutional entitlement to a fair trial"]; People v Kass, 59 AD3d at 92;People v Cotterell, 7 AD3d807, 808 [2004]; People v Sanchez, 293 AD2d at 500). In other words, it cannot besaid that there is no significant probability that the verdict would have been different absent theseerrors (see People v Grant, 7 NY3d at 424; People v Crimmins, 36 NY2d 230,241-242 [1975]). Accordingly, the judgment of conviction must be reversed and a new trialordered (see CPL 470.20; People v Gibian, 76 AD3d 583 [2010]; People v Montoya,63 AD3d at 965-966).
In view of the foregoing, we need not reach the defendant's remaining contentions. Covello,J.P., Santucci, Balkin and Austin, JJ., concur.