| People v Kluge |
| 2020 NY Slip Op 00878 [180 AD3d 705] |
| February 5, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Kluge, Appellant. |
Thomas Theophilos, Buffalo, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo and GlennGreen of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Barbara Kahn, J.), rendered December 14, 2011, convicting him of rape in the firstdegree, criminal sexual act in the first degree, and burglary in the first degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress DNAevidence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
In May 2010, the defendant was arrested and charged with, inter alia, burglary in thefirst degree, rape in the first degree, and criminal sexual act in the first degree. DNAtesting matched his DNA to DNA collected from a complainant who was attacked andraped in her garage in October 2009. After a trial, the jury convicted the defendant ofthose charges.
The defendant failed to preserve for appellate review his contention that count 3 ofthe indictment was duplicitous, and we decline to review this contention in the exerciseof our interest of justice jurisdiction (see People v Bonilla, 151 AD3d 735, 737 [2017];cf. People v Kaye,137 AD3d 938, 940 [2016]).
The defendant's contention that count 3 of the indictment is jurisdictionally defectiveis without merit. The defendant contends that while count 3 of the indictment chargeshim with violating Penal Law § 130.50 (1), which proscribes, inter alia,engaging in "oral sexual conduct" with another person by forcible compulsion, theindictment alleged that the defendant engaged in oral sexual "contact" with thecomplainant, rather than oral sexual "conduct." However, the statutory definition of"sexual contact" (Penal Law § 130.00 [3]) is broad enough to include "oralsexual conduct" (Penal Law § 130.00 [2] [a]; see People v Colsrud, 144AD3d 1639, 1640 [2016]). Thus, as the indictment charged acts that encompassedthe act of oral sexual conduct, it cannot be said that the defendant lacked fair notice ofthe charges against him.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of burglary in the first degree beyond a reasonable doubt. Contraryto the defendant's contention, the evidence was legally sufficient to prove that he caused"physical injury" to the complainant within the meaning of Penal Law§ 10.00 (9) (seePeople v Webster, 140 AD3d 1196, 1197 [2016]). The evidence presented attrial established that the complainant experienced bruising on her inner and outer cheeksand her inner and outer lips, abrasions on her throat, and bleeding and bruising behindher left ear that caused the examining nurse to suspect a basilar skull fracture. Thecomplainant described her ear drum as having been punctured and testified that it hurt forweeks. Additionally, the medications that the complainant was given to preventpregnancy and sexually-transmitted diseases, some of which she took for two months,made her nauseated.
There is no merit to the defendant's contention that he was arrested on an unrelatedassault charge without probable cause, and that the subsequently acquired evidenceagainst him should therefore have been suppressed. A boyfriend of the defendant's sisterhad complained to the police that the defendant had assaulted him. The boyfriend waspersonally acquainted with the defendant, whom he identified to the police as theindividual who assaulted him (see People v Anderson, 146 AD2d 638, 639[1989]). Therefore, when a police officer observed the defendant as a passenger in avehicle that had been stopped for a traffic infraction, and the defendant confirmed hisname to the officer, there was probable cause to arrest him (see id. at 639).Moreover, contrary to the defendant's contention, the vehicle in which he was apassenger was properly stopped by the police. "[A]s a general matter, the decision to stopan automobile is reasonable where the police have probable cause to believe that a trafficviolation has occurred, even if the underlying reason for the stop was to investigateanother matter unrelated to the traffic violation" (People v Davis, 103 AD3d 810, 811 [2013] [internalquotation marks omitted]; seePeople v Sluszka, 15 AD3d 421, 423 [2005]). Here, the record supports thehearing court's determination to credit a police officer's testimony that he observed thevehicle in which the defendant was a passenger run a stop sign, and that he radioed thatinformation to a fellow officer (see People v Rosario, 78 NY2d 583, 588 [1991])who then stopped the vehicle (see People v Davis, 103 AD3d at 811).
We agree with the County Court's determination declining to suppress the DNAevidence obtained from a piece of gum that the defendant discarded while he was incustody on the assault charge. A defendant seeking suppression of evidence mustestablish standing by demonstrating a legitimate expectation of privacy in the place oritem searched (see People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v McCullum, 159AD3d 8, 12 [2018], affd 34 NY3d 1022 [2019]). "This burden is satisfied ifthe [defendant] subjectively manifested an expectation of privacy with respect to the. . . item searched that society recognizes to be objectively reasonable underthe circumstances" (People vBurton, 6 NY3d 584, 588 [2006]; see People v Ramirez-Portoreal, 88NY2d at 108; People v McCullum, 159 AD3d at 12). "Where a defendantabandons property, there is no search or seizure" (People v Hogya, 80 AD2d 621,621 [1981]; see People vBurkett, 98 AD3d 746, 748 [2012]). However, "if the abandonment is coercedor precipitated by unlawful police activity, then the seized property may be suppressedbecause it constitutes 'fruit' of the poisonous tree" (People v Ramirez-Portoreal,88 NY2d at 110). Moreover, "[t]he police may engage in a ruse with respect to adefendant as long as it is 'not coercive or so fundamentally unfair as to deny dueprocess' " (People vLaGuerre, 29 AD3d 820, 822 [2006], quoting People v Amador, 11 AD3d473, 474 [2004]). Here, the defendant, who was in custody on the assault charge,had no reasonable expectation of privacy in the piece of chewed gum that he freelydiscarded into a trash can upon being told by a police officer that he had to get rid of itbefore being searched (seePeople v White, 153 AD3d 1369, 1370 [2017]). The defendant was not forcedor coerced into discarding the gum as there were other options he could have exercised inorder to remove it before the search. Moreover, once the defendant "abandoned" thechewed gum by voluntarily discarding it into the trash can, there was no search or seizure(see People v Burkett, 98 AD3d at 748; People v Hogya, 80 AD2d at621).
We also agree with the County Court's determination declining to suppress the DNAevidence derived from a buccal swab. The record demonstrates that the defendantvoluntarily agreed to give a buccal sample (see People v Dail, 69 AD3d 873, 874 [2010]). Thetestimony presented at the suppression hearing established that the defendant was only incustody for approximately 2
At the suppression hearing, the People established that the lineup identificationprocedures were not improper, and the defendant failed to establish that they were undulysuggestive (see People vGregory, 160 AD3d 894, 895 [2018]). While the defendant claims that adetective may have advised the complainant that the defendant's counsel would bepresent at the lineup, even if the complainant was so advised, the lineup identificationwould not have been tainted (see People v Brown, 17 NY3d 742, 744 [2011]; Peoplev Ashby, 289 AD2d 588, 588 [2001]). Moreover, contrary to the defendant'scontention, under the circumstances of this case, the facts that the complainant may haveseen a photograph of the defendant that had been released to the media (see People vHamilton, 186 AD2d 581, 582 [1992]), and that the lineup procedure was conducted14 months after the incident, did not render the procedure unduly suggestive. Further, thefailure to employ a double-blind sequential procedure is not a basis for suppression of thelineup, as there is no mandate to use any specific procedure (see People v Johnson, 10NY3d 875, 878 [2008]; People v Thomas, 131 AD3d 551, 552 [2015]; People v McLaughlin, 8 AD3d146, 147 [2004]).
The defendant's contention that he is entitled to reversal because the People'smotions pursuant to former CPL 240.40 (2) (b) for orders directing him to provide abuccal swab for DNA testing and to appear in a lineup failed to comply with the timelimits set forth in former CPL 240.90 (1) is unpreserved for appellate review and, in anyevent, without merit. Although the People failed to show good cause for their delay, theerror does not implicate the defendant's constitutional rights (see People v Walters, 172AD3d 916, 917 [2019]; People v Cox, 161 AD3d 1100, 1101 [2018]), nor does therecord demonstrate that the defendant was prejudiced by the delay (see People v Roland, 167AD3d 942, 943 [2018]; People v Lewis, 44 AD3d 422, 422-423 [2007]).
Contrary to the defendant's contention, the People demonstrated their entitlement tothe orders issued pursuant to former CPL 240.40 (2) (b) authorizing the taking of abuccal swab from him and directing him to appear in a lineup. The defendant had beenindicted by a grand jury, reports establishing that the defendant's DNA matched the DNArecovered from the complainant during an examination conducted after the attack gave aclear indication that material evidence could be expected to result from collection of hisDNA and from his participation in a lineup, and the orders were authorized by statute(see former CPL 240.40 [2] [b] [i], [v]; People v Roshia, 28 NY3d 989, 990 [2016]; People v Fields, 160 AD3d1116, 1118 [2018]; Peoplev Brown, 70 AD3d 1302 [2010], affd 17 NY3d 742 [2011]).
However, we agree with the defendant that the County Court should have granted hisfor-cause challenges to prospective jurors C.M. and D.A. on the ground that they eachevinced "a state of mind that [was] likely to preclude [each of them] from rendering animpartial verdict based upon the evidence adduced at the trial" (CPL 270.20 [1] [b]).
"[A] prospective juror whose statements raise a serious doubt regarding the ability tobe impartial must be excused unless the juror states unequivocally on the record that heor she can be fair and impartial" (People v Warrington, 28 NY3d 1116, 1119-1120 [2016][internal quotation marks omitted]; see CPL 270.20 [1] [b]; People v Harris, 19 NY3d679, 685 [2012]; People vJohnson, 17 NY3d 752, 753 [2011]). To satisfy the requirement for a clearassurance of impartiality, "a prospective juror must, first and foremost, in unequivocalterms, 'expressly state that his [or her] prior state of mind concerning either the case oreither of the parties will not influence [the] verdict' " (People vWarrington, 28 NY3d at 1120, quoting People v Biondo, 41 NY2d 483, 485[1977]; see People v Arnold, 96 NY2d 358, 362 [2001]; People vJohnson, 94 NY2d 600, 612 [2000]).
Taken as a whole, the responses given by C.M. and D.A. "raise[d] a serious doubtregarding [their] ability to be impartial" (People v Warrington, 28 NY3d at 1119[internal quotation marks omitted]; see CPL 270.20 [1] [b]; People vHarris, 19 NY3d at 685; People v Johnson, 17 NY3d at 753). Theirsubsequent responses fell far short of providing "unequivocal assurances of impartiality"(People v Warrington, 28 NY3d at 1120; see People v Gross, 172 AD3d 741, 743 [2019]) or"demonstrat[ing] an absolute belief that [their] opinion[s] [would] not influence[their] verdict" (People vReyes, 125 AD3d 892, 892 [2015] [internal quotation marks omitted]; see People v Garcia, 125 AD3d882, 883 [2015]; People vMacFarlane, 87 AD3d 700, 701 [2011]).
In addition to improperly denying these for-cause challenges, the County Court erredin its management of concerns expressed by sworn jurors regarding their deliberations.At the commencement of the second day of deliberations, the court met with counsel anddeliberating juror C.H., who had left the court a telephone message expressing concernsabout deliberations. This conversation took place outside the defendant's presence.Although the court properly attempted to keep its communication with C.H. ministerialby simply directing her to put her concerns in writing, C.H. refused to accept the court'sdirections, expressing concerns about the course of deliberations, including a concernthat someone was "stirring the jury" and that other jurors had been "influenced." Thecourt eventually directed a court officer to return C.H. to the jury room and provide herwith writing materials.
A defendant's right to be present "extends to all material stages of the trial, includingancillary proceedings in which defendants' presence could have 'a substantial effect ontheir ability to defend against the charges' " (People v Velasquez, 1 NY3d 44, 47 [2003], quotingPeople v Sloan, 79 NY2d 386, 392 [1992]). The defendant's right to be presentincludes " 'the court's charge, admonishments and instructions to thejury' " (People vBurton, 138 AD3d 882, 883 [2016], quoting People v Rivera, 23 NY3d 827, 831 [2014]). This rightincludes the defendant's right to be present during supplemental instructions to a lonejuror unless the communication is purely ministerial (see People v Rivera, 23NY3d at 832). Here, C.H.'s comments were in the nature of complaints that the jury wasbeing pressured. C.H.'s concerns regarding the integrity of the deliberation process andthe court's responses to them cannot be characterized as solely ministerial, despite thecourt's attempt to simply direct C.H. to put her concerns in writing rather than expressthem orally. Since the violation of a defendant's right to be present during the instructionof jurors is a mode of proceedings error, it need not be preserved for appellate reviewand presents an additional ground for reversal and a new trial (see id. at831-832).
After the colloquy with C.H. and following an off-the-record discussion, thedefendant was returned to the courtroom, and the court stated that it had received a notefrom the jury which had been marked as Court Exhibit X and "sealed with the consent ofall parties." No further discussion of Court Exhibit X appears on the record.
"CPL 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 v Parker, 32 NY3d 49, 58-59 [2018], quoting People v Mack, 27 NY3d534, 536 [2016]; see Peoplev Gedeon, 162 AD3d 1065 [2018]; People v Cotton, 127 AD3d 778 [2015]). The note at issuecomplained about jury deliberations. "[W]here the record does not establish that counselwas provided meaningful notice of the contents of a substantive jury note, 'the soleremedy is reversal and a new trial' " (People v Meyers, 33 NY3d 1018, 1020 [2019], quotingPeople v Parker, 32 NY3d at 62). Thus, counsel's awareness of a note does notdischarge the court's duty; the record must also demonstrate that counsel had notice ofthe contents of the note (see People v Parker, 32 NY3d at 59). A reviewing court" 'cannot assume that the omission was remedied at an off-the-record conference'to which 'the transcript does not refer' " (id. at 60, quoting People v Walston, 23 NY3d986, 990 [2014]; see Peoplev Silva, 24 NY3d 294, 300 [2014]; People v Brown, 129 AD3d 854, 858 [2015]).
"[A] trial court's failure to provide counsel with meaningful notice of a substantivejury note is a mode of proceedings error that requires reversal" (People v Morrison, 32 NY3d951, 952 [2018]; see People v Mack, 27 NY3d at 538; People v Nealon, 26 NY3d152, 157 [2015]; People v Silva, 24 NY3d at 299). "[A] trial court does notsatisfy its responsibility to provide counsel with meaningful notice of a substantive juryinquiry by summarizing the substance of the note" and must instead read the note into therecord " 'verbatim' " (People v Nealon, 26 NY3d at 156, 157,quoting People v Kisoon, 8NY3d 129, 135 [2007]; see People v Morrison, 32 NY3d at 960).Nevertheless, where the record demonstrates that counsel was given notice of the actualcontents of the note, the court's failure to respond to the jury is not a mode ofproceedings error and is subject to the preservation rule (see People v Clark, 28 NY3d556, 566 [2016]; People v Mack, 27 NY3d at 538, 544).
We cannot assume, from the County Court's statement that the parties agreed to sealthe note, that counsel was made aware of the exact contents of the note since "aninsufficient record cannot be overcome with speculation about what might haveoccurred. The presumption of regularity cannot salvage an O'Rama error of thisnature" (People v Parker, 32 NY3d at 60 [internal quotation marks omitted]).Moreover, since the failure to disclose a jury note to counsel is a mode of proceedingserror, it cannot be overlooked as harmless even where the evidence is otherwiseoverwhelming (see People v Mack, 27 NY3d at 540). Therefore, this errorprovides an additional basis upon which a new trial must be ordered.
Because the defendant must be retried, we need not reach the defendant's contentionthat his sentence was excessive.
The defendant's contentions that the People improperly obtained DNA evidence froman envelope is without merit, and his remaining contentions need not be reached. Dillon,J.P., Leventhal, Maltese and Christopher, JJ., concur.