| People v Brown |
| 2013 NY Slip Op 01842 [104 AD3d 864] |
| March 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jeremy Brown, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, CamilleO'Hara Gillespie, and Maria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered July 13, 2011, convicting him of criminal possession of a weapon inthe second degree and criminal possession of marijuana in the first degree (two counts),upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was arrested while driving a minivan with a Virginia registration fromwhich police officers recovered a loaded firearm and 16 pounds of marijuana. The policealso recovered, from the defendant's wallet, a concealed weapon permit issued to him bythe Commonwealth of Virginia. At his subsequent trial, the defendant admitted that thefirearm and the marijuana belonged to him, but testified that he had purchased thefirearm legally in Virginia and was carrying it for his protection, and that he hadpurchased the marijuana for his personal use.
At the charge conference, the People asked the trial court to take judicial notice ofthe fact that a concealed weapon permit issued in Virginia is not valid in the State ofNew York, to instruct the jury of that fact, and to instruct the jury that ignorance of thelaw is not a defense. The trial court denied the requests. The defendant then moved topreclude the People from arguing during summation that the Virginia permit was notvalid in New York. The court denied the defendant's motion, and ruled that, although ithad declined to charge the jury on the issue, the prosecutor was allowed to offercomments during summation regarding firearm licensing requirements in New York andthe invalidity of the Virginia permit.
During summation, the prosecutor argued to the jury that "the Virginia permit doesnot make this gun legal in New York," that the defendant's "Virginia permit is not validin New York, plain and simple, this gun was owned unlawfully here in New York," that"I'm going to tell you that [the Virginia permit] is one hundred percent irrelevant in thiscase," and that since the defendant "didn't have a license for it in Brooklyn,. . . the [Virginia] permit is of absolutely no significance in this case." Theprosecutor told the jury that the defendant's "only challenge to the crime of criminalpossession of a weapon is to get you to ignore the law," and if one of the jurors [*2]were to tell the others during deliberations that "all theelements of the crime were proved by the People but he had that permit in Virginia so Ican't convict him, . . . I expect the other eleven of you to say, you're notfollowing the law." The prosecutor also asserted that it did not matter if the defendantthought he could carry the gun pursuant to the Virginia permit: "I'm here to tell you thatit doesn't matter if he thought he could carry the gun," because "[i]gnorance of the law. . . is not a defense." The trial court overruled a defense objection to thatlast comment.
On appeal, the defendant contends that he was deprived of a fair trial because thetrial court improperly delegated its judicial authority by permitting the prosecutor, ineffect, to deliver instructions on the law to the jury. Since this was a jury trial, the courtwas obligated to instruct the jury on the "material legal principles applicable to theparticular case, and, so far as practicable, explain the application of the law to the facts"(CPL 300.10 [2]). Here, the court declined to instruct the jury on the law with respect tothe validity of a concealed weapon permit issued in Virginia, and with respect to adefendant's ignorance of the law. Having declined to give such instructions, it wasimproper for the court to allow the prosecutor, in effect, to give such instructions duringhis summation in its stead. By permitting the prosecutor to instruct the jury on matters oflaw during the course of his summation, the court improperly surrendered itsnondelegable judicial responsibility (see People v Stiggins, 1 NY3d 529, 530 [2003]; Peoplev Bayes, 78 NY2d 546, 551 [1991]; cf. People v Torres, 72 NY2d 1007[1988]; People v Pegeise, 195 AD2d 337, 339 [1993]). The court's delegation ofthis critical judicial function to the prosecutor significantly impaired the integrity of theproceedings and deprived the defendant of a fair trial, requiring reversal.
In light of our determination, we need not address the defendant's remainingcontentions. Dillon, J.P., Angiolillo, Leventhal and Miller, JJ., concur.