| People v Powell |
| 2012 NY Slip Op 08342 [101 AD3d 756] |
| December 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlton Powell, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and MerriTurk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered December 15, 2009, convicting him of burglary in the third degree, criminalmischief in the third degree, criminal possession of stolen property in the fifth degree (twocounts), and trespass, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of the defendant's omnibus motion to suppress identificationtestimony and physical evidence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, the defendant's omnibus motion to suppress identification testimony and physicalevidence is granted, the count of the indictment charging the defendant with criminal mischief inthe third degree is dismissed, and the matter is remitted to the Supreme Court, Queens County,for further proceedings on the counts of the indictment charging the defendant with burglary inthe third degree, criminal possession of stolen property in the fifth degree (two counts), andtrespass.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally insufficient to establish thedefendant's guilt of criminal mischief in the third degree beyond a reasonable doubt. Theevidence was insufficient to establish, beyond a reasonable doubt, that the damage to the subjectproperty exceeded the sum of $250 (see Penal Law § 145.05 [2]; People v Quigley, 70 AD3d 1411,1412 [2010]; People v Jeffries, 151 AD2d 964 [1989]). Although this issue isunpreserved for appellate review (see CPL 470.05 [2]), we reach it in the exercise of ourinterest of justice jurisdiction (see CPL 470.15 [3] [c]; [6]).
Contrary to the People's contention, the defendant's contention that the hearing courtimproperly relied upon the fellow-officer rule to conclude that his arrest was supported byprobable cause is preserved for appellate review, since the hearing court expressly decided thatthere was probable cause for the defendant's arrest based upon the fellow-officer rule (seeCPL 470.05 [2]; People vFeingold, 7 NY3d 288, 290 [2006]; People v Prado, 4 NY3d 725, 726 [2004]; People v Berry, 49 AD3d 888, 889[2008]). Moreover, upon a review of the hearing record, we conclude that the defendant's motionto suppress identification testimony and physical evidence should have been granted. Under thefellow-officer rule, if an arresting officer lacks personal knowledge sufficient to establishprobable [*2]cause, the arrest will be lawful if the officer actsupon the direction of or as a result of communication with a superior or fellow officer or anotherpolice department, provided that the police as a whole were in possession of informationsufficient to constitute probable cause to make the arrest (see People vRamirez-Portoreal, 88 NY2d 99, 113 [1996]; People v Lypka, 36 NY2d 210, 213[1975]). Here, the People did not present evidence to establish that the officers who stopped anddetained the defendant and his codefendant actually received any information from anotherofficer who may have possessed probable cause. Although the People demonstrated that certainofficers who interviewed an eyewitness had sufficient information to constitute probable cause,the People presented no evidence that those officers communicated that information to thearresting officers prior to the stop and detention of the defendant. The People also did not presentany testimony from the arresting officers as to what information they possessed or how theyreceived it before they detained the defendant and his codefendant.
Consequently, the hearing court should have suppressed, as the fruits of the unlawful arrest,the physical evidence seized from the defendant, as well as the testimony regarding a showupidentification (see People v Dodt, 61 NY2d 408, 417 [1984]; People v Moses, 32 AD3d 866,868 [2006]; People v Thomas, 32AD3d 869, 870 [2006]; People v Skinner, 220 AD2d 350, 351 [1995]).
Additionally, the Supreme Court failed to comply with CPL 310.30. When a trial courtreceives a "substantive written jury communication" during deliberations, the court must putforth the inquiry on the record and allow counsel a full opportunity to suggest an appropriateresponse (People v O'Rama, 78 NY2d 270, 277 [1991]). The opportunity to respond "isessential to counsel's ability to represent the client's best interest and, further, to ensure theprotection of the client's constitutional and statutory rights at these critical postsubmissionproceedings" (id. at 277)
During deliberations, the jury sent out a note reporting that it was deadlocked, along with atally sheet. Although the note was marked as court exhibit 10, neither the note nor the tally sheetwas read into the record. There is no indication in the record that the Supreme Court provideddefense counsel with a summary of the note's contents or of the accompanying tally sheet, or thatcounsel was afforded an opportunity to suggest an appropriate response (see People v Lewis, 77 AD3d 579,580 [2010]). Although, during the pendency of this appeal, the People moved in the SupremeCourt to resettle the record, so as to demonstrate that the Supreme Court did, in fact, reveal thecontents of the jury note to counsel in an off-the-record conversation, resettlement is not anappropriate remedy under the circumstances presented here. It is well established that courtspossess " 'inherent power to correct their records, where the correction relates to mistakes, orerrors, which may be termed clerical in their nature, or where it is made in order to conform therecord to the truth' " (People v Minaya, 54 NY2d 360, 364 [1981], cert denied455 US 1024 [1982], quoting Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550-551[1890]). Here, however, the People's resettlement motion did not seek to correct a mistake orerror that was clerical in nature, or to conform the record to the truth, but rather to create a newportion of the record, which could have been, but was not, created at trial. This is not a properbasis for a resettlement motion (see Van Valkenburgh v Bourne, 26 AD2d 727 [1966]).
In any event, even if resettlement were an appropriate remedy, a showing that the contents ofthe jury note were revealed to counsel off the record would be of no avail to the People, sinceCourt of Appeals case law interpreting CPL 310.30 contemplates that the procedure forcomplying with that statute will occur on the record. Specifically, the Court of Appeals has heldthat "whenever a substantive written jury communication is received by the Judge," it should be"read into the record in the presence of counsel," and that, "[a]fter the contents of the inquiry areplaced on the record, counsel should be afforded a full opportunity to suggest appropriateresponses" (People v O'Rama, 78 NY2d at 277-278). This procedure is designed to"ensure a clear and complete record, thereby facilitating adequate and fair appellate review"(id. at 278).
Here, the Supreme Court failed to fulfill its "core responsibility" under CPL 310.30 (People v Kisoon, 8 NY3d 129,135 [2007]). This constituted a mode of proceedings error that is exempt from preservationrequirements and requires reversal (seePeople v Tabb, 13 NY3d 852, 853 [2009]; People v Lockley, 84 AD3d 836 [2011]; People v Surpris, 83 AD3d 742,744 [2011]; People v Lewis, 77 AD3d at 580).
In light of the foregoing, the defendant's convictions of burglary in the third degree, [*3]criminal possession of stolen property in the fifth degree (twocounts), and trespass must be reversed (see People v Sanchez, 276 AD2d 723 [2000]),and the matter must be remitted to the Supreme Court, Queens County, for further proceedingson those counts of the indictment. Since the defendant was acquitted of the count of theindictment charging him with criminal mischief in the second degree, double jeopardy precludesa retrial on that count of the indictment (see People v Gonzalez, 61 NY2d 633, 635[1983]). Furthermore, since double jeopardy precludes a second trial with respect to a criminalcharge resulting in a judgment of a conviction that is reversed on appeal for legal insufficiency(see Matter of Suarez v Byrne, 10NY3d 523, 538-539 [2008]; Peoplev Biggs, 1 NY3d 225, 229 [2003]), the defendant may not be retried on the count of theindictment charging him with criminal mischief in the third degree.
In light of our determination, we need not reach the defendant's remaining contention.Rivera, J.P., Hall, Lott and Cohen, JJ., concur.