| People v Brewer |
| 2014 NY Slip Op 04606 [118 AD3d 1409] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert D. Brewer, Appellant. (Appeal No. 2.) |
Easton Thompson Kasperek Shiffrin LLP, Rochester (William T. Easton of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered July 10, 2009. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted on count one of the indictment.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contendsthat an executed cooperation agreement created a legal impediment to the People'sprosecution of him for intentional murder and thus that Supreme Court erred in refusingto dismiss that count of the indictment. We reject that contention. In his writtenstatement, the admissibility of which we upheld in People v Brewer (118 AD3d 1407 [June 20, 2014]), defendant admitted that he brought a loaded weapon to aresidence with the intent that he and others would commit a murder. He stated, however,that, when the time came to the pull the trigger, he was unable to do so. Defendantfurther stated that a codefendant grabbed the gun from his hand and used it to kill thevictim. Although that codefendant had already implicated defendant as the shooter, theprosecutor entered into a written cooperation agreement with defendant. Pursuant to thatagreement, defendant agreed to provide truthful statements and/or testimony against allothers involved in the murder. He also agreed that he would take a polygraphexamination; truthfully testify at all court proceedings; and "[n]ot engage in any conductwhich would constitute any violation of the Penal Law . . . during thependency of th[e] Agreement." The determination whether defendant "successfullycompleted performance" of the agreement rested in the sole discretion of the prosecutor.Upon successful completion of the agreement, defendant would be permitted to pleadguilty to attempted conspiracy in the second degree with a sentence recommendation of 4to 12 years. If the prosecutor concluded, however, that defendant had not successfullycompleted the agreement, he could be prosecuted for, inter alia, criminal possession of aweapon in the second degree. In addition, the agreement provided that, "[s]hould[d]efendant commit any further criminal offenses or provide false or misleadinginformation or statements, withhold information or violate any provision of th[e]Agreement, he [would] be subject to prosecution for any . . . criminalviolations he committed as well as for the crimes encompassed by th[e] Agreement andfor which [he] could have been charged initially, had th[e] Agreement not been enteredinto, and for any perjury, making false statements, or failure to testify." The prosecutorcould also "prosecute the defendant to the full extent of the law on the charges which arethe subject of th[e] Agreement."
After execution of the agreement, a second codefendant identified defendant as theshooter. As a result, the prosecution terminated the agreement and indicted defendant oncharges of, inter alia, intentional murder (Penal Law § 125.25 [1]) andcriminal possession of a weapon in the second degree (§ 265.03 [3] [CPW2d]). In his omnibus motion, defendant sought dismissal of, inter alia, the intentionalmurder count on the ground that the agreement barred the People's prosecution of himfor that crime. While we agree with defendant that the court had the authority to hold ahearing to determine whether a violation occurred (see People v Jairam, 10 AD3d 455, 456 [2004]), weconclude under the circumstances here that the court did not err in denying that part ofdefendant's omnibus motion without a hearing. The evidence in the record is sufficient toestablish as a matter of law that defendant had agreed that the prosecutor would have thediscretion to determine whether defendant had successfully completed the agreement orwhether he had violated its terms. Inasmuch as the prosecutor's determination thatdefendant had failed to provide truthful information "was made in good faith," weconclude that the court properly refused to dismiss the intentional murder count of theindictment (People v Anonymous, 253 AD2d 709, 710 [1998], lv denied92 NY2d 980 [1998], reconsideration denied 93 NY2d 850 [1998]; seePeople v Anonymous, 251 AD2d 179, 179 [1998]). We also reject defendant'scontention that he is entitled to specific performance of the agreement because hedetrimentally relied on it. At the time defendant entered into the agreement, he hadalready given his statement to the police, and there is no evidence of defendant's furtherreliance on the agreement or performance of the agreement in the month between itsexecution and revocation (cf. People v Danny G., 61 NY2d 169, 175-176 [1984];People v Ross G., 163 AD2d 529, 530-531 [1990]).
Viewing the evidence in light of the elements of the crime of intentional murder ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contentionthat the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We conclude, however, that we must reverse the judgment and grant a new trial onthe count of the indictment charging defendant with intentional murder. Defendant wasinitially tried on the entire indictment. The first trial ended with a conviction of CPW 2d(Brewer, 118 AD3d at 1409), a hung jury on the intentional murder count and an acquittal on all other counts.The court declared a mistrial on the intentional murder count and ordered a new trial onthat count only. At both the first trial and the second trial, the defense theory was thatdefendant did not have the intent to kill the victim at the time the codefendant shot thevictim. By that time, defendant had made a conscious decision against firing the weaponor committing the murder. At the first trial, defense counsel initially requested a chargeon the affirmative defense of renunciation. Defense counsel subsequently withdrew thatrequest and argued in summation that defendant could not be liable as an accessorybecause he had lacked the necessary shared intent to kill. The first jury was deadlockedwith respect to the intentional murder count: 10 for acquittal and 2 for conviction.
At the second trial, there was no mention of the affirmative defense of renunciationuntil the jury requested instruction on a change of intent, i.e., "changing your mind at thelast minute." In response to that jury note, the court proposed to instruct the jury on theaffirmative defense of renunciation. Defense counsel vigorously objected, noting that hehad repeatedly informed the jury that defendant had no burden of proof and that therehad been no evidence presented in support of that affirmative defense. Over defensecounsel's objection, the court read that instruction to the jury. That was error.
It is well settled that a court cannot instruct a jury on an affirmative defense wherethe defendant objects to the instruction (see People v Bradley, 88 NY2d 901,902-903 [1996]; People v DeGina, 72 NY2d 768, 776-778 [1988]; People vMartin [appeal No. 1], 66 AD2d 995, 995-996 [1978]). When a court does so, itimpairs a defendant's "unquestionabl[e] . . . right to chart his [or her] owndefense" (DeGina, 72 NY2d at 776); it may "undermine[ ] the defense chosen by[the] defendant[,] . . . [and] place[ ] [the] defendant in the midst ofcontradictory defenses" (id. at 776-777); and it indisputably "impose[s] on [the]defendant an affirmative burden of proof he [or she] had not undertaken by his [or her]defense theory" (id. at 777). The imposition of a burden of proof on a defendantwho has not elected to pursue an affirmative defense "constitute[s] an abuse of theaffirmative defense in derogation of [a] defendant's right to have the State bear the entireburden of proof" (id. at 776). The Third Department has even stated that a court"is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense orforce a defendant to raise such a defense" (People v Ciborowski, 302 AD2d 620,622 [2003], lv denied 100 NY2d 579 [2003]).
Where, as here, the defendant has repeatedly advanced only a defense, which carriesno burden of proof, "the suggestion that he [or she] had assumed a burden of proof. . . ha[s] the potential to mislead the jury" (DeGina, 72 NY2d at778). The affirmative defense of renunciation requires a defendant to meet an initialburden of establishing, by a preponderance of the evidence (see generally People vButts, 72 NY2d 746, 749 n 1 [1988]), that he or she "withdrew from participation insuch offense prior to the commission thereof and made a substantial effort to preventthe commission thereof" (Penal Law § 40.10 [1] [emphasis added]).There was no evidence presented at trial that defendant made any effort, let alone asubstantial one, to prevent the commission of the murder. The only conclusion the jurycould have drawn was that defendant had failed to meet his burden of establishing theaffirmative defense. Here, as in Bradley, "[t]he imposition of an affirmativeburden of proof over defense objection and the involuntary undermining of thedefendant's chosen defense strategy resulted in serious prejudice that requires reversal"(88 NY2d at 904; see People v Albright, 65 NY2d 666, 668 [1985]; People vMaldonado, 175 AD2d 698, 699-700 [1991]; Martin, 66 AD2d at 996;People v Cofer, 48 AD2d 818, 818 [1975]; cf. People v Green, 108 AD3d 782, 785 [2013], lvdenied 21 NY3d 1074 [2013]; People v Diaz, 39 AD3d 1244, 1245 [2007], lvdenied 9 NY3d 842 [2007]). We therefore reverse the judgment and grant a new trialon count one of the indictment.
While we agree with the People that there are limited circumstances where a courtmay give an instruction on an affirmative defense over a defendant's objection, i.e., whenit is the only viable defense raised, we note that the court may not do so where, as here, adefendant has concluded his or her summation (see People v Crumpler, 242AD2d 956, 958 [1997], lv denied 91 NY2d 871 [1997]). We further agree withthe People that the court was required to provide a meaningful response to the jury'sinquiry. The court was thus forced to "perform the delicate operation of fashioning aresponse which meaningfully answer[ed] the jury's inquiry while at the same timeworking no prejudice to the defendant" (People v Williamson, 267 AD2d 487,489 [1999], lv denied 94 NY2d 886 [2000]). In our view, the courts inWilliamson and People v Starr (213 AD2d 758, 760-761 [1995], lvdenied 85 NY2d 980 [1995]) gave appropriate responses when faced with similarsituations. In each case, the jury inquired about a potentially relevant affirmative defensethat the defendant had not pursued, but the court forestalled the jury's consideration ofthe affirmative defense. In Williamson, the court informed the jury that, althoughthe affirmative defense of renunciation existed, it "had no application to the case" and thejury therefore had not been "instructed concerning it" (267 AD2d at 490). InStarr, the court instructed the jury that the affirmative defense of entrapment "hadnot been raised" and that the jury had not been "instructed . . . with respectto such defense" (213 AD2d at 761). The court herein should have taken a similarapproach when responding to the jury's note.
Based on our determination, we do not address defendant's remaining contentions.Present—Scudder, P.J., Centra, Fahey, Sconiers and Valentino, JJ.