| People v Urbina |
| 2012 NY Slip Op 06831 [99 AD3d 821] |
| October 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CesarUrbina, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Holdman, J.), dated October 18, 2010, convicting him of attempted rape in the first degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and in the exercise of discretion, and a newtrial is ordered.
The defendant was charged, inter alia, with attempted rape in the first degree (Penal Law§§ 110.00, 130.35 [1]) and attempted sexual abuse in the first degree (Penal Law§§ 110.00, 130.65 [1]).
During the charge conference, the Supreme Court informed the parties that it would submitto the jury only the most serious count of the indictment, attempted rape in the first degree.Defense counsel objected, but the court adhered to its ruling. Later, at the close of theprosecutor's summation, the prosecutor told the jury that the court would be submitting to thejury only the count charging attempted rape in the first degree "because [the defendant] attemptedto rape the [complainant]." The court overruled defense counsel's immediate objection.
A court may, in its discretion, decline to submit noninclusory concurrent counts of anindictment for the jury's consideration (see CPL 300.40 [3] [a]; People v Leon, 7 NY3d 109, 113[2006]; People v Pitterson, 45AD3d 308, 310 [2007]). In exercising that discretion, the court must consider whethersubmission of the noninclusory concurrent counts would assist the jury in arriving at a fairverdict, or whether submission of those counts would instead distract the jury from theperformance of its duty or permit it to engage in jury nullification (see People v Leon, 7NY3d at 114). In this case, the count charging attempted sexual abuse in the first degree(see Penal §§ 110.00, 130.65 [1]) was a noninclusory concurrent count ofthe count charging attempted rape in the first degree (see People v Wheeler, 67 NY2d960 [1986]). Under the circumstances present here, the Supreme Court's refusal to submit thatnoninclusory concurrent count was an improvident exercise of discretion. The submission of thatcount would not have distracted the jury from the performance of its duty, but would haveassisted it in arriving at a fair verdict. The court's improvident exercise of discretion [*2]was compounded when the prosecutor asserted in her summationthat the court's reason for submitting only one count was "because" the defendant was guilty ofthat count, which strongly implied that the court also believed that the defendant was guilty ofthat count. The improper implication was only strengthened when the court overruled defensecounsel's objection. Inasmuch as the errors may have affected the verdict, a new trial is required(see People v Extale, 18 NY3d690, 696 [2012]).
In light of our determination, we need not address the defendant's remaining contentions(cf. People v Evans, 94 NY2d 499, 504 [2000]). Rivera, J.P., Balkin, Belen andChambers, JJ., concur.