| People v Henry |
| 2014 NY Slip Op 04962 [119 AD3d 607] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Dewayne Henry, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered July 12, 2012, as amended September 21, 2012, convicting him ofrobbery in the first degree (two counts), robbery in the second degree, criminalpossession of a weapon in the second degree (two counts), and criminal possession ofstolen property in the fifth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is reversed, on the law, and a new trial isordered.
During a recess in the trial testimony of one of three police witnesses, defensecounsel informed the court that the defendant's wife had a conversation with a juror whoallegedly told her, "the evidence speaks for itself or they got themsel[ves] into thissituation." Although defense counsel initially told the court that he did not know whichjuror the defendant's wife had spoken to, he then suggested that the court speak to jurornumber seven, but could not state why he believed that was the juror in question.However, the court did not speak with juror number seven or individually with any of theother jurors. The court stated that it did not want to interview each juror individually andinstead, after the witness's testimony concluded, it reiterated to the jurors as a group inthe courtroom to keep an open mind and inquired whether any of them had changed theirmind as to their ability to give the defendant and the codefendant a fair trial. When nojuror responded affirmatively, the court recessed the trial for the weekend and took nofurther action as to that issue.
Thereafter, during deliberations, counsel for the defendant and the codefendant eachmoved for a mistrial on the grounds, inter alia, that, at the end of the court proceedingsthe day before, juror number seven had initiated contact and had a conversation with themother of the codefendant's daughter and, the following day, appeared to be flirting withher in the elevator. Defense counsel thereafter indicated that the defendant's wife hadinformed him that juror number seven likewise had engaged in "identical" behavior withher. The court denied each mistrial motion and did not inquire of juror number sevenabout his ability to be impartial or with respect to the alleged conduct. Instead, the courtsimply advised him individually to avoid speaking with anyone in the building that hedid not know.
[*2] The defendant contendsthat, in light of the conduct alleged, the Supreme Court should have made an inquiry ofjuror number seven, during which the defendant should have been allowed to participate,to determine whether the juror was grossly unqualified to continue to serve pursuant toCPL 270.35 (1). We agree.
The Court of Appeals, in People v Buford (69 NY2d 290, 299 [1987]), setforth the basic framework to be followed when conduct occurs during a trial that may bethe basis for disqualifying a juror. The court should conduct an in camera inquiry of thejuror, in which counsel should be permitted to participate if they desire, and evaluate thenature and importance of the information and its impact on the case (see also People v Ventura, 113AD3d 443, 444 [2014]). In addition, the "trial court's reasons for its ruling should beplaced on the record . . . [and] the court may not speculate as to possiblepartiality of the juror" (People v Buford, 69 NY2d at 299; see People vRodriguez, 71 NY2d 214, 219-220 [1988]). Although the Court of Appealsacknowledged that an "in camera inquiry may not be necessary in the unusual case. . . where the court, the attorneys, and defendant all agree that there is nopossibility that the juror's impartiality could be affected and that there is no reason toquestion the juror" (People v Buford, 69 NY2d at 299 n 4), here, defense counselwanted the juror to be questioned.
The Supreme Court erred in failing to conduct an in camera "probing and tactfulinquiry" (id. at 299) of juror number seven, during the trial, when it was allegedthat he had stated "the evidence speaks for itself or they got themsel[ves] into thissituation" (see People v Ventura, 113 AD3d at 444-446; People v Gale, 79 AD3d903, 905 [2010]; People vPorter, 77 AD3d 771, 772 [2010]), and subsequently, after deliberations hadcommenced, when it was alleged that juror number seven had engaged in flirtatiousconduct with someone connected to the defendant as well as someone connected to thecodefendant (see People v Ventura, 113 AD3d at 444-445; People v Gale,79 AD3d at 905). Since the court's general inquiry of the jurors with respect to the firstincident failed to meet the requirements of Buford (see People v Gale, 79AD3d at 905), and no inquiry at all was made with respect to the later incidents (seePeople v Ventura, 113 AD3d at 445-446), it is unknown whether the juror held anopinion that affected his ability to be impartial (see People v Gale, 79 AD3d at905; People v Porter, 77 AD3d at 772). Such an error is not subject to harmlesserror analysis and, thus, the conviction must be reversed (see People v Anderson,70 NY2d 729, 730 [1987]; People v Ventura, 113 AD3d at 445-446).
Contrary to the People's contention, this issue was preserved for appellate review bydefense counsel's request that the Supreme Court make inquiry of juror number sevenafter the juror allegedly made the statement to the defendant's wife, and by the mistrialmotion after that same juror allegedly engaged in flirtatious conduct. When the courtrejected defense counsel's request for an inquiry, and thereafter denied the mistrialmotion, and found, in effect, without any inquiry, that the juror could be fair andimpartial, the issue was resolved adversely to the defendant and preservation wasadequate (see People vFeingold, 7 NY3d 288, 290 [2006]; People v Ventura, 113 AD3d at 446;see also People v Gibian, 76AD3d 583, 587 [2010]).
The defendant's contention that the indictment was multiplicitous because he wascharged with two counts of robbery in the first degree arising out of a single incident isunpreserved for appellate review (see People v Cruz, 96 NY2d 857, 858 [2001])and, in any event, without merit. "Multiplicity does not exist where 'each count requiresproof of an additional fact that the other does not' " (People v Saunders,290 AD2d 461, 463 [2002], quoting People v Kindlon, 217 AD2d 793, 794-795[1995]). Separate counts are not multiplicitous where "a conviction on one count wouldnot be inconsistent with acquittal on the other" (People v Saunders, 290 AD2d at463). Here, two weapons were involved and the defendant was charged with robbery inthe first degree under subdivisions (2) and (4) of Penal Law § 160.15,neither of which is a lesser included offense of the other, and each of which encompassesa distinct individual element (see People v Castillo, 8 NY3d 959, 961 [2007]).
Furthermore, the defendant's contention that he was deprived of the effectiveassistance of counsel also is without merit (see People v Caban, 5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d277, 287 [2004]), as is his contention that the exclusion of his wife and child fromthe courtroom deprived him of his right to a public trial (see People v Echevarria, 21NY3d 1, 11 [2013]; People v [*3]Cosentino,198 AD2d 294, 295 [1993]).
In light of our determination, we need not address the defendant's remainingcontentions. Hall, J.P., Roman, Duffy and LaSalle, JJ., concur.