| People v Thomas |
| 2017 NY Slip Op 00497 [146 AD3d 991] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Thomas, Appellant. |
Lynn W. L. Fahey, New York, NY (Alexis A. Ascher of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and RheaA. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered September 27, 2012, convicting him of murder in the seconddegree, assault in the first degree (two counts), and criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
According to the evidence adduced at trial, in the early morning hours of June 18,2011, a man opened fire at a crowded party in Brooklyn, fatally striking one person andseriously injuring two others. Immediately after the shooting, the police witnessed anindividual toss a gun underneath a car. That individual gave a videotaped statement tothe police, which was played for the jury, wherein he stated that he worked security at theparty and that he grabbed the gun from a man he knew as "Tah" after the shooting. Thegun was later proven to be the one fired at the party. No physical evidence tied thedefendant to the gun, but he eventually became a suspect and was indicted for crimesarising from the incident. At trial, although a few witnesses gave general descriptions ofthe shooter, only one of them identified the defendant as the shooter. A jury found thedefendant guilty of murder in the second degree, assault in the first degree (two counts),and criminal possession of a weapon in the second degree.
The defendant's contention that the evidence was legally insufficient to support hisconvictions because the prosecution failed to establish his identity as the perpetrator ofthose crimes is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People vDelgado, 109 AD3d 483 [2013]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), it was legally sufficient to establish the defendant's identity beyond a reasonabledoubt (see People v Wiggs,130 AD3d 659, 659 [2015], revd 28 NY3d 987 [2016]; People v Delgado, 109 AD3d483 [2013]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]) we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v [*2]Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdictof guilt as to all charges was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, as the People correctly concede, a new trial is required based upon theSupreme Court's failure to comply with CPL 310.30, in accordance with the proceduresset forth in People v O'Rama (78 NY2d 270 [1991]). "Criminal Procedure Law§ 310.30 imposes two responsibilities on trial courts upon receipt of asubstantive note from a deliberating jury: the court must provide counsel withmeaningful notice of the content of the note, and the court must provide a meaningfulresponse to the jury" (People vMack, 27 NY3d 534, 536 [2016]; see People v O'Rama, 78 NY2d at276-277). A trial court's failure to provide meaningful notice to counsel falls within thenarrow class of mode of proceedings errors for which preservation is not required(see People v Mack, 27 NY3d at 536; People v Walston, 23 NY3d 986, 989-990 [2014];People v O'Rama, 78 NY2d at 279). Moreover, "[i]n the absence of record proofthat the trial court complied with its core responsibilities under CPL 310.30, a mode ofproceedings error occur[s] requiring reversal" (People v Tabb, 13 NY3d 852, 853 [2009]; see People vMack, 27 NY3d at 538; People v Walston, 23 NY3d at 990).
Here, the jury submitted a note stating, "Please clarify 1st degree assault; 2nd degreeassault; 2nd degree manslaughter [and] 2nd degree murder." The Supreme Court did notread the contents of the note into the record at any point, and there is no record indicationthat the court communicated to the parties that a jury note had been received. Instead,after a recess for deliberations, the court merely stated "let us revisit these counts," andthen it gave the charges for those offenses. The court's failure to provide counsel withmeaningful notice of a substantive jury note was a mode of proceedings error (see People v Walston, 23NY3d 986 [2014]), which requires reversal of the judgment and a new trial (seePeople v Patterson, 39 NY2d 288, 295-296 [1976], affd 432 US 197[1977]).
Contrary to the People's contention, the defendant's conviction of criminal possessionof a weapon in the second degree must be vacated with his other convictions. "Whetheran error in the proceedings relating to one count requires reversal of convictions on otherjointly tried counts is a question that can only be resolved on a case-by-case basis"(People v Baghai-Kermani, 84 NY2d 525, 532 [1994]; see People v Concepcion, 17NY3d 192, 196 [2011]; People v Doshi, 93 NY2d 499, 505 [1999]). Thereviewing court must evaluate "the individual facts of the case, the nature of the error andits potential for prejudicial impact on the over-all outcome" (People vBaghai-Kermani, 84 NY2d at 532; see People v Concepcion, 17 NY3d at196-197; People v Doshi, 93 NY2d at 505). When the error at issue relates to amistake in the court's charge to the jury, the primary focus is on any effect the error"might have had on the jury's ability to deliberate fairly on the non-tainted counts,although attention must of course be paid as well to the evidentiary relationship betweenthe tainted counts and the non-tainted counts" (People v Doshi, 93 NY2d at 505).Reversal is required if "there is a 'reasonable possibility' that the jury's decision to convicton the tainted counts influenced its guilty verdict on the remaining counts in a'meaningful way' " (id., quoting People v Baghai-Kermani, 84NY2d at 532-533). In this case, given the evidentiary relationship between the taintedcounts and the weapon possession count, it cannot be said that there is no reasonablepossibility that the jury's decision to convict on the other counts did not influence itsguilty verdict on the weapon possession count (see People v Brockett, 74 AD3d 1218, 1220 [2010];People v Tabb, 180 AD2d 770, 771 [1992]; cf. People v Walston, 23NY3d at 990). Consequently, the defendant is entitled to vacatur of the weaponpossession conviction.
The defendant's contention that the Supreme Court erred by allowing the videotapedstatement of an unsworn witness to be played for the jury is without merit. In a criminalcase, the out-of-court statements of a witness may be admitted as direct evidence at trialwhere, inter alia, the witness is unavailable to testify and proof establishes that thewitness's unavailability was procured by intentional misconduct on the part of thedefendant (see People v Geraci, 85 NY2d 359, 366 [1995]; see also Giles vCalifornia, 554 US 353 [2008]; People v Smart, 23 NY3d 213, 220 [2014]). Circumstantialevidence may be used to establish that a witness's unavailability was procured by thedefendant (see People v Geraci, 85 NY2d at 369). However, the cumulativeevidence and the inferences that logically flow therefrom must be sufficient to support adetermination, under the clear and convincing evidence standard, that the defendanteither was responsible for, or acquiesced in, the conduct that rendered [*3]the witness unavailable for trial (see id. at370).
Here, the Supreme Court properly determined, after a Sirois hearing (seeMatter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]), that the People presentedclear and convincing evidence that the defendant's intentional misconduct caused thesubject witness to be unavailable to testify at the trial. Accordingly, the People wereproperly allowed to use the witness's statement as part of their direct case at trial (seePeople v Geraci, 85 NY2d at 362). The statement was also not so devoid ofreliability as to offend due process (see People v Cotto, 92 NY2d 68, 78 [1998];People v Wilson, 115 AD3d891 [2014]).
The defendant's remaining contentions either are without merit or have beenrendered academic in light of our determination. Dillon, J.P., Hall, Hinds-Radix andBrathwaite Nelson, JJ., concur.