| People v Armstrong |
| 2016 NY Slip Op 02843 [138 AD3d 877] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Aubrey N. Armstrong, Respondent. |
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Sharon Y. Brodt of counsel), for appellant.
Dietrich P. Epperson, Forest Hills, NY, for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Knopf,J.), dated April 18, 2014, which granted the defendant's motion pursuant to CPL 330.30(1) to set aside a jury verdict convicting him of criminal sale of a controlled substance inthe third degree and criminal possession of a controlled substance in the seventh degree,and directed a new trial.
Ordered that the order is reversed, on the law, the defendant's motion to set aside thejury verdict is denied, the verdict is reinstated, and the matter is remitted to the SupremeCourt, Queens County, for sentencing.
The defendant was charged with criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the seventh degree. He wastried before a jury over several days in February 2014.
On February 13, 2014, after jury deliberations ceased for the day, three of the jurorswere escorted to an elevator bank by a court officer. The court officer spoke to one of thejurors, commenting on the evidence of the case and the logical inference of thedefendant's guilt. The juror brought this interaction to the Supreme Court's attention thefollowing morning, before the attorneys and the defendant.
After questioning the court officer and confirming the basic details of the interactionwith the juror, the Supreme Court intimated that a mistrial was necessary, and thendismissed the court officer from the courtroom and directed that he have no furtherinteraction with the jury. Defense counsel interceded and asked that the jury be permittedto continue deliberating, and requested that the court voir dire the three jurors as to theirability to continue deliberations. Each of the three jurors who was present at the time ofthe improper interaction was separately questioned by the court with respect to his or herability to continue deliberating and faithfully fulfill his or her duties as a juror, and eachof those jurors stated that he or she could continue. Upon completion of the court'sinquiry, defense counsel stated he was satisfied as to the jurors' ability to continue todeliberate faithfully and impartially, and requested that the entire jury be permitted tocontinue without further curative instruction or action. The court permitted deliberationsto continue, and soon thereafter the jury returned a verdict finding the defendant guilty ofall charges.
[*2] The defendant movedpursuant to CPL 330.30 (1) to set aside the verdict against him on the ground that thecourt officer's misconduct deprived him of his constitutionally protected right to a fairtrial. The People opposed the motion on the ground, inter alia, that this contention hadbeen waived by the defendant's choice to reject the Supreme Court's offer to declare amistrial and to continue to verdict.
In an order dated April 18, 2014, the Supreme Court granted the defendant's motion.The court held that the egregious violation of the prohibition against communicationsbetween deliberating jurors and court personnel found in CPL 310.10 rendered the courtofficer's misconduct a mode of proceedings error which was not subject to the normalrules of waiver. The People appeal, and we reverse.
Except when authorized by the court or when performing administerial duties withrespect to the jurors, court officers may not communicate with jurors or permit any otherperson to do so (see CPL 310.10 [1]; see also Parker v Gladden, 385 US363 [1966]). In considering a motion to set aside a verdict pursuant to CPL 330.30 (1),however, a trial court may only consider questions of law, not fact (see People vVentura, 66 NY2d 693, 694-695 [1985]; People v Carter, 63 NY2d 530, 536[1984]; People v Davidson,122 AD3d 937, 938 [2014]; People v Thomas, 8 AD3d 303 [2004]). Moreover, a trialcourt may only consider claims of legal error under CPL 330.30 (1) where those claimsare preserved for appellate review (see People v Davidson, 122 AD3d at 938;People v Thomas, 8 AD3d at 303).
Waiver and preservation are separate concepts (see People v Iannone, 45NY2d 589, 600 [1978]), although they are often "inextricably intertwined" (People vMichael, 48 NY2d 1, 5 n 1 [1979]). Waiver connotes the intentional relinquishmentor abandonment of a known right (see People v Ahmed, 66 NY2d 307 [1985]).Where a defendant assents at trial to a court's decision, agrees with the court'sdetermination, or requests that the court take the actions the court ultimately took, thedefendant cannot, after the fact, claim the action constituted error (see People vFord, 62 NY2d 275, 283-284 [1984]; People v Ramos, 127 AD3d 996, 996-997 [2015];People v Davidson, 122 AD3d at 938; People v Artis, 63 AD3d 1173 [2009]).
Here, the defendant waived his contention that the court officer's misconductdeprived him of his right to a fair trial. Defense counsel affirmatively opposed theSupreme Court's suggestion that a mistrial be declared by requesting that the jurycontinue deliberations.
Nevertheless, there is a limited class of errors that "go to the essential validity of theprocess and are so fundamental that the entire trial is irreparably tainted" (People v Kelly, 5 NY3d116, 119-120 [2005]; see People v Agramonte, 87 NY2d 765, 770 [1996];People v Patterson, 39 NY2d 288, 294-296 [1976]). As such, these "mode ofproceedings" errors are "immune from the requirement of preservation" (People vKelly, 5 NY3d at 120; seePeople v Rivera, 23 NY3d 827, 831 [2014]), and a defendant "cannot waive, oreven consent to," such errors (People v Patterson, 39 NY2d at 295).
Here, the Supreme Court erred in concluding that the court officer's misconductconstituted a mode of proceedings error. In People v Kelly (5 NY3d 116 [2005]), the Court of Appealswas tasked with determining whether a court officer's unauthorized weaponsdemonstration in a jury room constituted a mode of proceedings error that could be raisedon appeal, even if unpreserved. In that case, the defendant was charged with murder for afatal stabbing with a 12-inch-long bayonet. The parties, at the start of deliberations, hadconsented to allow the trial exhibits to be given to the jurors whenever they requestedthem. On the third day of deliberations, a court officer brought the bayonet and sheath,which were trial exhibits, into the jury room in response to a written jury request to seethem. When the jurors sought to handle the exhibits, the court officer, concerned for thesafety of the jury, refused, but agreed to place the bayonet at his waistband and draw itfrom its sheath while the jurors watched. The officer then answered a few questions fromthe jurors about the demonstration. This conduct occurred without the court's knowledgeor permission. Indeed, after the court officer notified the court of what had happened, thecourt promptly advised both sides and, after consulting with the defendant, defensecounsel agreed that the appropriate recourse would be for the court to give the jury acurative instruction to disregard the court officer's demonstration and continuedeliberations. The jury ultimately convicted the defendant, and the defendant moved[*3]pursuant to CPL 440.10 to vacate the judgment, buthis motion was denied. The Appellate Division, First Judicial Department, affirmed thedenial of the motion, and the Court of Appeals granted leave to appeal. The Court ofAppeals held that the court officer's misconduct involving a deliberating jury did notconstitute a mode of proceedings error, especially where the court officer acted on his orher own volition and without the permission or knowledge of the court (see People vKelly, 5 NY3d at 120). Likewise, in this case, the court officer's interaction with, orwithin the ambit of, the three jurors was without the permission or knowledge of thecourt. Furthermore, here, as in People v Kelly, the court took such curative actionas was requested by defense counsel. Accordingly, the court officer's misconduct did notconstitute a mode of proceedings error (see id.).
Since the error here did not rise to the level of a mode of proceedings error, thedefendant's motion to set aside the verdict on that basis was subject to the normal rules ofpreservation and waiver. On the facts of this case, the defendant clearly waived thesearguments by explicitly rejecting the Supreme Court's offer to declare a mistrial, and,instead, requesting that the jury be permitted to continue deliberating. Here, defensecounsel specifically opposed the court's offer to declare a mistrial and also opposed thecourt's offer to conduct additional inquiries of the jurors, thereby waiving the merits ofthe defendant's contentions (cf. People v Bannerman, 59 AD2d 719 [1977]).Defense counsel's opposition to a mistrial placed the court in the position of declaring amistrial against the wishes of the defendant, thereby placing a further prosecution indoubt. This could have led to a violation of the prohibition against double jeopardy, as amistrial may have been declared in the absence of manifest necessity (see Matter of Cohen v Lotto,19 AD3d 485, 486 [2005]).
Accordingly, the Supreme Court should have denied the defendant's motion to setaside the verdict. Leventhal, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur. [PriorCase History: 43 Misc 3d 1228(A), 2014 NY Slip Op 50834(U).]