| People v Jean-Philippe |
| 2012 NY Slip Op 08869 [101 AD3d 1582] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JeffreyJean-Philippe, Also Known as Jeffery Jean-Philippe, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered September 19, 2008. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a forged instrument in the second degree (three counts) and recklessendangerment in the first degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, a new trial isgranted on counts one through three of the indictment, and count four of the indictment isdismissed without prejudice to the People to file or re-present to another grand jury anyappropriate charge under that count.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofthree counts of criminal possession of a forged instrument in the second degree (Penal Law§ 170.25) and one count of reckless endangerment in the first degree (§ 120.25). Weagree with defendant that he was denied a fair trial by Supreme Court's refusal to dismiss a jurorwho was seen falling asleep, albeit briefly, during trial. "A determination whether a juror isunavailable or grossly unqualified, and subsequently to discharge such a juror, is left to the broaddiscretion of the court" (People vPunwa, 24 AD3d 471, 472 [2005], lv denied 6 NY3d 779 [2006]). However,"[i]t is well established that '[a] juror who has not heard all the evidence is grossly unqualified torender a verdict' " (People v Hymes,70 AD3d 1371, 1372 [2010], lv denied 15 NY3d 774 [2010]; see People vWilliams, 202 AD2d 1004, 1004 [1994]). Here, because there were no alternate jurors at thetime, the dismissal of a juror would have required a mistrial. Thus, it appears that the courtattempted to rehabilitate the juror at issue thereby avoiding a mistrial, by asking the juror if she"missed any relevant or important . . . parts . . . of the testimony" andif she "heard everything that [she] need[ed] to know thus far." The court's efforts, however, wereunavailing. Once it was determined that the juror had fallen asleep and missed some portion ofthe trial testimony, it was incumbent upon the court to dismiss that juror, even though thatdismissal would have necessitated a mistrial.
We likewise agree with defendant that the evidence is legally insufficient to support hisconviction for reckless endangerment in the first degree. Specifically, there is insufficient [*2]evidence that defendant's reckless conduct occurred "undercircumstances evincing a depraved indifference to human life" (Penal Law § 120.25).Although the evidence at trial established that defendant acted recklessly when he led lawenforcement on a chase in heavy traffic conditions where his speed frequently exceeded theposted speed limit, ran several red lights, and collided with several vehicles before beingapprehended, that evidence is insufficient to establish that defendant acted with the requisitedepraved indifference to human life to support a conviction of reckless endangerment in the firstdegree (see generally People vPrindle, 16 NY3d 768, 769-771 [2011]). "[T]he statutory provision that a defendant act'[u]nder circumstances evincing a depraved indifference to human life' constitutes an additionalrequirement of the crime—beyond mere recklessness and risk—which in turncomprises both depravity and indifference" (People v Suarez, 6 NY3d 202, 214 [2005]). Here, at most, theevidence adduced at trial was legally sufficient to support a finding of reckless endangerment inthe second degree (§ 120.20). Because there must be a new trial based on the court's failureto dismiss the grossly unqualified juror (cf. People v Cargill, 70 NY2d 687, 689 [1987]),we dismiss count four of the indictment without prejudice to the People to file or re-present toanother grand jury any appropriate charge under that count (see generally People v Pallagi, 91 AD3d 1266, 1270 [2012]).
Finally, we reject defendant's contention that counts one through three of the indictment, i.e.,the three counts of criminal possession of a forged instrument in the second degree, aremultiplicitous (see generally People v Okafore, 72 NY2d 81, 85-88 [1988]). In light ofour determination, we do not address defendant's remaining contentions.
All concur except Scudder, P.J., who dissents in part and votes to modify in accordance withthe following memorandum.
Scudder, P.J. (dissenting in part). I agree with the majority's conclusion that the evidence islegally insufficient to support the conviction of reckless endangerment in the first degree (PenalLaw § 120.25; see generallyPeople v Prindle, 16 NY3d 768, 769-771 [2011]). I also agree with the majority that thejudgment with respect to the remaining counts charging defendant with three counts of criminalpossession of a forged instrument in the second degree (§ 170.25) should be reversed and anew trial granted on those counts because a juror who was seen sleeping was thereby grosslyunqualified to render a verdict (seePeople v Hymes, 70 AD3d 1371, 1372 [2010], lv denied 15 NY3d 774 [2010]).I nevertheless respectfully disagree with the majority's conclusion that we should dismiss countfour, i.e., reckless endangerment in the first degree, with leave to file, or re-present to anothergrand jury, any appropriate charge. In my view, we should modify the judgment with respect tocount four by reducing the conviction to the lesser included offense of reckless endangerment inthe second degree (Penal Law § 120.20), inasmuch as the evidence is legally sufficient tosupport the lesser but not the greater offense (see CPL 470.15 [2] [a]). The evidenceestablished that defendant led law enforcement personnel on a high-speed chase during which hedisobeyed several traffic control devices, drove in the wrong direction on the roadway and wasinvolved in multiple collisions.
We are required, upon reversing or modifying a judgment, to "take or direct such correctiveaction as is necessary and appropriate both to rectify any injustice to the appellant resulting fromthe error or defect which is the subject of the reversal or modification and to protect the rights ofthe respondent" (CPL 470.20; seePeople v Rodriguez, 18 NY3d 667, 670-671 [2012]). As noted, the majority dismissescount four of the indictment and grants leave to the People to, inter alia, file any appropriatecharge. However, it is clear that the lesser included offense of reckless endangerment in thesecond degree is not an appropriate charge because defendant's double jeopardy rights would beviolated if he were charged with that offense inasmuch as "the lesser offense . . .requires no proof beyond that which is required for conviction of the greater" (People v Biggs, 1 NY3d 225, 230[2003] [internal quotation marks omitted]; see US Const 5th Amend; NY Const, art I,§ 6; CPL 40.20). "At its core, double jeopardy precludes 'the government from prosecutinga [defendant] for the same offense after an acquittal [*3]or aconviction' " (People v Gause, 19NY3d 390, 394 [2012], quoting Matter of Suarez v Byrne, 10 NY3d 523, 532 [2008], reargdenied 11 NY3d 753 [2008]).
I submit that, because CPL 470.20 provides that the "particular corrective action to be takenor directed is governed in part by the following rules," we may fashion corrective actionthat is not specified in CPL 470.20 that both rectifies the injustice to defendant and protects therights of the People (see Rodriguez, 18 NY3d at 671). I note that in People v Pallagi (91 AD3d 1266,1267-1268 [2012]), defendant contended both that there was a trial error that deprived her of afair trial and legally insufficient evidence to support the conviction, and we therefore dismissedthe sole count of the indictment, charging defendant with grand larceny in the fourth degree(Penal Law § 155.30 [1]), with leave to file any appropriate charge. As I noted in mydissent (Pallagi, 91 AD3d at 1271-1272), the corrective actions with respect to that countwere in conflict, i.e., the trial error required that a new trial be granted (see CPL 470.20[1]), and the insufficient evidence permitted reduction of the count to a lesser included offense(see CPL 470.15 [2] [a]) or required dismissal of the count (see CPL 470.20 [2]).Here, however, defendant is convicted of not one count, but of four counts. Notably, defendantrecognizes that the permissible corrective actions are in conflict and thus contends that he shouldbe granted a new trial on counts one, two and three, and that count four should be dismissed orreduced to the lesser included offense (see CPL 470.20).
I would therefore modify the judgment by reducing the conviction under count four to thelesser included offense of reckless endangerment in the second degree (see CPL 470.15[2] [a]; see e.g. People v Brink, 78AD3d 1483, 1483 [2010], lv denied 16 NY3d 742 [2012], reconsideration denied16 NY3d 828 [2011]), and I would remit the matter to Supreme Court for resentencing onthat count (see CPL 470.20 [4]). I otherwise agree with the majority that the judgmentinsofar as it convicted defendant of counts one, two and three should be reversed and that a newtrial should be granted on those counts. In my view, that corrective action serves both statutorymandates, i.e., to rectify the respective injustices to defendant and to protect the rights of thePeople. Present—Scudder, P.J., Centra, Carni, Sconiers and Martoche, JJ.