| People v DeJesus |
| 2015 NY Slip Op 08959 [134 AD3d 463] |
| December 8, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jaime DeJesus, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Melanie A. Sarver of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered May 2,2013, convicting defendant, after a jury trial, of assault in the first degree, and sentencinghim, as a second felony offender, to a term of 20 years, unanimously reversed, on thelaw, and as a matter of discretion in the interest of justice, and the matter remanded for anew trial.
Defendant's right of confrontation was violated by testimonial hearsay evidence thatwent beyond the permissible scope of explanatory background material. Over timely andspecific objection on Confrontation Clause grounds, the detective in charge ofinvestigating the case testified that he learned of defendant's nickname and home addressfrom, among others, two nontestifying informants or 911 callers describing the fleeingshooter, and that defendant was found at that same address. In addition, the victimtestified that defendant went by that same nickname, and the jury saw a photograph ofthe nickname tattooed on defendant's arm. The hearsay evidence did not merely explainthe police investigation, but improperly provided strong evidence on the central issue ofidentification (see People vGarcia, 25 NY3d 77, 86-88 [2015]). This impropriety was compounded by theprosecutor's improper argument, in violation of the court's limiting instruction, that theout-of-court statements made to the detective constituted "evidence" that defendant wasthe shooter (see People vMinus, 126 AD3d 474 [1st Dept 2015]). "The only purpose of the prosecutor'simproper comments was to suggest to the jury, in this one-witness identification case,that the complainant was not the only person who had implicated the defendant" (People v Benitez, 120 AD3d705, 706 [2d Dept 2014]).
Defendant was further deprived of his right to a fair trial by other portions of theprosecutor's summation (see People v Calabria, 94 NY2d 519 [2000]). Theprosecutor's argument that defendant shot the victim over a dispute involving a mountainbike that defendant "had nothing to do with," and that defendant "was looking to takecredit for" the shooting, suggested that a third person had engaged defendant to shoot thevictim. This line of argument ran afoul of a prior ruling striking the victim's testimonythat defendant had shot him over a mountain bike (see People v Birch, 6 AD2d28, 30 [1st Dept 1958], cert denied 369 US 880 [1962]). Contrary to the People'sargument, defense counsel did not waive the right to object to these comments bycross-examining the victim about the mountain bike, which the court permitted as acurative measure after striking the initial testimony about the bike, or by arguing insummation that the victim's inconsistent testimony about the bike undermined hiscredibility. Other improprieties in the summation included emotional appeals, safe streetsarguments and denigration of defense counsel.
During jury deliberations, the court should have granted defendant's mistrial motion,made on the ground that any verdict would be reached under coercive circumstances. Thecourt's statements during jury deliberation were also prejudicial to defendant's right to afair trial. The jury returned two notes, on the second and fourth day of deliberations,announcing that the jury was deadlocked; the second note emphatically listed differenttypes of evidence the jury [*2]had considered. The court'sAllen charges in response to both notes were mostly appropriate but presented theprospect of protracted deliberations by improperly stating that the jury had onlydeliberated for a very short time when it had actually deliberated for days (see People v Aponte, 2 NY3d304, 308-309 [2004] [trial court improperly stated, among other things, that it was"nowhere near" the point when it would find a hung jury, where deliberation had lastedtwo days]). The court initially informed the jury that its hours on one day would beextended to 7:00 p.m., before reversing that decision and merely extending the hours to5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. Thecourt improperly described those changes as a "tremendous accommodation" that was"loathed" by the system (see People v Huarotte, 134 AD2d 166, 170-171 [1stDept 1987]; see also Aponte, 2 NY3d at 308 [finding reversible error where,among other things, Allen charge "suggested that the jurors were failing in theirduty"]).
The court further indicated that the jury would likely continue deliberating into thenext week although jurors had been told during jury selection that the case would be overby the aforementioned Friday, raising concerns for one juror who was going to start anew job the following Monday and another juror who was solely responsible for hischild's care in the first three days of the next week (see People v Diaz, 66 NY2d744, 746 [1985]; see also Peoplev Nelson, 30 AD3d 351 [1st Dept 2006]). After the court informed the latterjuror that he would be required to show up the next week despite the juror's purportedlyfruitless efforts to obtain alternative childcare, and then brought the juror back into thecourtroom solely to reiterate that point more firmly, the jury apparently returned itsverdict within less than nine minutes, at about 3:29 p.m. on the Friday (see People vMabry, 58 AD2d 897 [2d Dept 1977]). The totality of the circumstances supports aninference that the jury was improperly coerced into returning a compromise verdict.
To the extent any of these issues could be deemed unpreserved, we review them inthe interest of justice. These cumulative errors were not harmless, since the evidence ofdefendant's guilt was not overwhelming, and there is a significant probability thatdefendant would have been acquitted if not for the violation of his right of confrontation,the prosecutor's improper statements in summation, and the court's improper statementsduring deliberation (see People v Crimmins, 36 NY2d 230, 242 [1975]).
Since we are ordering a new trial, we find it unnecessary to discuss defendant's otherarguments, except that we find that the verdict was based on legally sufficient evidenceand was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]).Concur—Sweeny, J.P., Acosta, Andrias and Moskowitz, JJ.