Opinion
No. N10397/13.
04-18-2014
The PEOPLE of the State of New York v. Aubrey ARMSTRONG, Defendant.
Assistant District Attorney Harold Rosengarten, Queens District Attorney's Office, for the People. Dietrich P. Epperson, Esq., for defendant.
Assistant District Attorney Harold Rosengarten, Queens District Attorney's Office, for the People.
Dietrich P. Epperson, Esq., for defendant.
Opinion
STEPHEN A. KNOPF, J.
The defendant has filed a motion with this Court seeking an order setting aside the verdict pursuant to Criminal Procedure Law § 330.30. In this application, the defendant alleges that the misconduct of a court officer violated the defendant's Sixth Amendment rights and that this violation cannot be waived under New York's “mode of proceedings doctrine”. The People oppose the application arguing that the defendant's claims are not cognizable in a motion to set aside the verdict and in any event were validly waived.
Procedural History
The defendant was indicted for the crimes of criminal sale of a controlled substance in the third degree (PL 220.39(1) and criminal possession of a controlled substance in the seventh degree (PL 220.03(1). The People presented evidence at the jury trial conducted before this Court as to a narcotics sale on September 20, 2013 in the county of Queens; that on that date, Undercover Officer (hereinafter U.C.) 121 was introduced to the defendant, the U.C. gave the defendant $60 and, in exchange, the defendant handed the U.C. a quantity of crack cocaine and that the defendant then gave the U.C. his telephone number. The defendant was arrested on September 21, 2013 when a different U.C. met with him after contacting him at the telephone number provided the day before.
On February 14, 2014, during jury deliberations, this Court was alerted to an unauthorized communication between a court officer and juror number two. After an in-court inquiry of all of the relevant parties, the jury was allowed to continue its deliberations. The defendant was convicted of both counts of the indictment on February 14, 2014.
Findings of Fact
On February 13, 2014, after a day of deliberations, juror number two, juror number ten, and juror number one, were the last ones to leave the jury room. They exited the jury room and headed to the elevator along with the bridge officer (the officer in charge of the jury). Juror number two was walking behind the court officer when he said to her in sum and substance: how else would the officers have the defendant's cell phone number if it was not from the defendant himself.
The bridge officer, admitted that he made the aforementioned comments to juror number two but claimed that he did so in response to a question asked by the juror. (This statement is contradictory to juror number two's version of events. She maintained that she did not initiate contact with nor did she ever ask the court officer any questions preceding the statement in question). He admitted that he should not have spoken to the juror and agreed with the statement of the Court that he knows better.The bridge officer was immediately removed from this trial and ordered by this Court not to have any further contact with the jury.
This Court also informed both the prosecution and the defense that it intended to declare a mistrial. Defense counsel, for admitted “strategic reasons”, refused the offer of a mistrial and asked that the jury be allowed to continue its deliberations.
This Court then proceeded to conduct an in-court inquiry of the three jurors.
Juror number two assured this Court that she could continue deliberating and that she could remain fair and impartial. This Court advised juror number two that the court officer's comments to her were inappropriate and unauthorized and should not have occurred. Juror number two further stated that she was concerned that the court officer was attempting to intimidate her and that he may retaliate against her. After the assurances of this Court, juror number two again stated that she could remain a fair juror.
Juror number ten indicated that on February 13, 2014, she observed the court officer in question speaking with juror number two and heard the words “phone number”. She admitted that she and juror number two discussed the matter after the incident. This Court advised juror number ten that such contact with the court officer never should have happened and was strictly prohibited. Juror number ten assured this Court that this incident would not interfere with her ability to be a fair juror.
Juror number one said that she heard nothing and did not have any discussions regarding the interaction of the court officer and juror number two. She also assured this Court that she could remain a fair juror.
All three jurors indicated that they had not discussed the incident in question with the remaining members of the jury.
The jury was permitted to continue deliberations after an admonishment by this Court regarding the strict prohibition as to jurors discussing the case with anyone but themselves.
Conclusions of Law
Criminal Procedure Law § 330.30 mandates under what circumstances a verdict of guilty may be set aside. In relevant part:
At any time after rendition of the a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgement of conviction, would require a reversal or modification of the judgement as a matter of law by an appellate court.
2. That during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict.
Criminal Procedure Law § 310.10(1) in dealing with supervision of a deliberating jury under the supervision of a court officer or court officers or public officer or officers, states in relevant part:
Except when so authorized by the court or when performing administerial duties with respect to the jurors, such court officers or public servants, as the case may be, may not speak to or communicate with them or permit any other person to do so.
In this case, this Court must decide whether the jury's verdict should be set aside because of the improper communication between a court officer and deliberating jurors. More specifically, this Court must decide whether the defendant waived his right to challenge the verdict on these grounds and whether the curative actions taken by this Court were sufficient to remedy any improper behavior by the court officer.Established case law is clear; only claims of error properly preserved serve as basis for a trial court to set aside the verdict. See, People v. Alfaro, 66 N.Y.2d 985 (1985) ; People v. James, 112 A.D.2d 380 (2nd Dept 1985). However, the Court of Appeals has found that an a error deemed a “mode of proceeding” error is immune from the requirement of preservation. See People v. Kelly, 5 NY3d 116 (2005). In Kelly, at 119 to 120, the Court of Appeals noted that mode of proceedings errors cannot be waived as these errors “... go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted ...”, citing People v. Agramonte, 87 N.Y.2d 765, 770 (1996).
This Court now turns to the issue of whether the curative actions taken by this Court were sufficient as a matter of law to correct the officer's misconduct. See People v. White, 79 AD3d 1460 (2010) (finding that reversal was not required where the Court inquired about an unspecified improper communication between a court officer and juror because such communication did not intimidate, influence or usurp judicial authority and the juror reassured the Court that he could remain fair and impartial). As noted above, once the improper communication was brought to the Court's attention, this Court took immediate action. The defendant should have accepted the Court's offer of a mistrial, rather than having to deal now with an unfavorable verdict.
However, this Court must now determine whether or not the conduct of the court officer here was so egregious that it affects the integrity of the entire proceedings and would require a reversal as a matter of law by an appellate Court. In Parker v. Gladden, 385 U.S. 363 (1966), the leading case cited by both the defendant and the People, the United States Supreme Court reviewed comments made by a bailiff assigned to monitor a sequestered jury. The bailiff in Gladden told jurors that the defendant was a wicked fellow who was guilty and the Supreme Court would correct any mistake in finding the defendant guilty. The United States Supreme Court, noting the official role held by the bailiff, found that “... the unauthorized conduct of the bailiff involves such as probability that prejudice will result that it is inherently lacking in due process.” See Gladden at 471 citing Estes v. Texas, 381 U.S. 532 at 542–543 (1965). In People v. Ciaccio, 47 N.Y.2d 431,(1979), the Court of Appeals citing Gladden, found that it was reversible error when the court clerk entered the jury room and told a deliberating jury that the judge had stated that a lot of time and money are invested in the case and that they should keep on deliberating. See Ciaccio, at 436. The People in their response argued that the court clerk's statements in Ciaccio, amounted to an “abbreviated Allen charge” and therefore was more egregious than the statements in this instant case. This Court disagrees. The statement of the court officer here, to wit: how else would the officers have the defendant's cell phone number if it was not from the defendant himself,(or words to that effect), is clearly a statement commenting on the guilt of the defendant. The statement addressed the merits of the People's case and spoke to facts that were being considered by the jury. It is therefore clearly prejudicial to the defendant.
Accordingly, this Court finds that the unauthorized and improper statements made by the court officer (indeed the bridge officer in charge of the jury) about the case to deliberating jurors amounts to a mode of proceedings error that cannot be waived, despite being unpreserved by the defendant. Furthermore, this Court finds that despite the curative actions taken by this Court and despite the assurances of the jurors, a mode of proceedings error such as the one here cannot be cured. See People v. Keizer, 100 N.Y.2d 114 (2003) (reiterating the rule that mode of proceedings errors are a type of procedural defect that cannot be waived or cured). As such, the defendant's motion to set aside the verdict is granted pursuant to CPL § 330.30 and a new trial is ordered.
The forgoing constitutes the order, opinion and decision of the this Court.