The People, Appellant,v.Dwight R. DeLee, Respondent.BriefN.Y.October 15, 2014To Be Argued By: JAMES P. MAXWELL, ESQ. (TIME REQUESTED: 15 MINUTES) ============================================================== COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs. DWIGHT DELEE, Defendant-Respondent. ============================================================== APPELLANT'S BRIEF ============================================================== JAMES P. MAXWELL, ESQ Chief Assistant District Attorney Of Counsel WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney Attorney for Appellant Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470 Fax: (315) 435-3969 DATE COMPLETED: January 27, 2014 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................................................ . QUESTION PRESENTED ........................................................... " . .. . . . . . . . .. .. 1 JUDICIAL STATEMENT ............................................................................ 2 PRELIMINARY STATEMENT ..................................................................... 2 STATEMENT OF FACTS ........................................................................... 3 Trial Proof. ..................................................................................... 3 J my Instructions, Verdict and Sentencing .................................... , . .. . . . . . . . .. 7 POINT I THIS COURT SHOULD REINSTATE DEFENDANT'S CONVICTION OF MANSLAUGHTER IN THE FIRST DEGREE AS A HATE CRIME ............................................................ 10 A. The People presented overwhelming proof that defendant committed a hate crime under the Hate Crimes Act of 2000.. .. .... .. . ... .. .... ... .. .... .. ..... 10 B. The Tucker/Muhammed rule does not require reversal of the hate crime conviction in this case .......................................................... 12 C. What happened during and after deliberations supports the conclusion that the guilty verdict should be reinstated .............................. , ............ 16 D. This Court, as it reinstates the verdict, should use this 0pp0l1unity to infoml lower cOUl1s on the proper instructing of juries on hate crimes ........... 20 E. J[this Court finds that the verdict finding defendant guilty of manslaughter in the first degree as a hate crime violates the Tucker/Muhammed rule, this Court should abandon that rule ..................... 22 F. Defendant should not benefit from his killing the victim as a hate crime ........ 23 CONC:LUSION ............................................ , ........... " .............................. 24 TABLE OF AUTHORITIES PAGE CASES Dunn v United States, 284 US 390 (1932)..................................................... ... 23 People v Abraham, 22 NY3d 140 (2013)......................................................... 15 People v Carbonell, 40 NY2d 948 (1976) ......................................................... 23 People v DeLee, 108 AD3d 1145 (4th Dept 2013)....................................... 3, 14, 17 People v DeLee, 21 NY3d 1047 (2013) ............................................................. 3 People v Gallagher, 69 NY2d 525 (1987) ......................................................... 20 People v Hampton, 61 NY2d 963 (1984) ......................................................... 14 People v Muhammad, 17NY3d532 .................................................. 12,13,14,23 People v Tucker, 55 NY2d 1 (1981) ....................................................... 12, 14,21 United States v Powell, 469 US 57 (1984) .......................................... "'........... 23 STATUTES Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 39, Penal Law § 485.00 ....................................................................... 11 Penal Law § 70.06 (6) (a)........................................................................... 10 Penal Law § 485.00 ............................................................................. 10,11 Penal Law § 485.05 .................................................................................. 11 Penal Law § 485.05 (1) (a).......................................................................... 10 Penal Law § 485.05 (1) (b) ....................................................................... ". 1 0 Penal Law § 485.05 (3) .............................................................................. 10 Penal Law § 485.]0 (1) .............................................................................. 10 Penal Law § 485.10 (3) (e) .......................................................................... 10 OTHER AUTHORITY Judge and Jury - Inconsistent Verdicts in Federal Courts, 63 Harv L Rev 649 (1950) .... 23 New York Court of Appeals Modifies Doctrine of Inconsistent Verdicts, 11 New York Criminal Law Newsletter 2 (Spring 2013)..................................................... ... 23 11 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs. DWIGHT DELEE, Defendant-Respondent. Indictment No. 2009-0348-1 Index No. 2009-0376 APPELLANT'S BRIEF QUESTION PRESENTED 1. SHOULD THIS COURT REINSTATE DEFENDANT'S CONVICTION OF MANSLAUGHTER IN THE FIRST DEGREE AS A HATE CRIME WHERE THE TRIAL COURT INSTRUCTED THE JURY THAT IT HAD TO REACH SEPARATE VERDICTS ON THE HOMICIDE CHARGES AS A HATE CRIME AND AS A NON- HATE CRIME, AND THE JlJRY FOUND DEFENDANT GUILTY OF KILLING THE VICTIM AS A HATE CRIME AND NOT GUILTY OF KILLING THE VICTIM AS A NON-HATE CRIME? The trial court accepted the jury's verdict and denied defendant's CPL 330.30 (1) motion to set aside the verdict. The Appellate Division, Fourth Department, in a 4 to 1 ruling, modified by reversing the part of the judgment convicting defendant of manslaughter in the first degree as a hate crime and dismissing the first count of the indictment, while affimling the part of the judgment convicting defendant of criminal possession of a weapon in the third degree. Associate Appellate Division Justice Erin M. Peradotto dissented fl'om the modification. JURISDICTIONAL STATEMENT This appeal is taken by the People from a Memorandum and Order of the Appellate Division, Fourth Department, which modified a judgment of conviction, and is undertaken by permission of a justice of the Appellate Division pursuant to Criminal Procedure Law § 460.20 (2) (a) (ii). This Court has jurisdiction to review the issue raised herein pursuant to Criminal Procedure Law § 450.90 (1) and (2), because it arises from an adverse order of an intermediate appellate court. Specifically, this Court has jurisdiction to review the order of the Appellate Division, Fourth Department, which modified a judgment of conviction entered after a jury trial in Onondaga County Court (Walsh, J.). PRELIMINARY STATEMENT On April 3, 2009, an Onondaga County Grand Jury returned Indictment No. 2009-0348-1 charging defendant with murder in the second degree as a hate crime, murder in the second degree, and criminal possession of a weapon in the third degree (R. 26). The charges arose from an incident that occurred in the city of Syracuse on November 14,2008, when defendant shot and killed his victim based upon defendant's belief regarding the sexual orientation of his intended victim. Defendant was tried before a jury in Onondaga County Court in July 2009. The jury found defendant guilty of manslaughter in the first degree as a hate crime, which the court told the jury to consider as a lesser-included offense of the first count of the indictment charging murder in the second degree as a hate crime, and criminal possession of a weapon in the third degree as charged in the third count of the indictment. The jury found defendant not guilty of manslaughter in the first degree as a non-hate crime, which the court told the jury to consider as a lesser-included offense of the second count of the indictment, which charged defendant with 2 murder in the second degree as a non-hate crime. On August 18,2009, the court sentenced defendant to a determinate term of 25 years in prison and five years postrelease supervision for manslaughter in the first degree as a hate crime and to a concurrent indeterminate term of 3 Y2 to 7 years in prison for criminal possession of a weapon in the third degree (R. 1308-1317). The Appellate Division, Fourth Department, modified defendant's conviction, with Associate Appellate Division Justice Erin M. Peradotto dissenting from that modification (Record on Appeal [R. 4-13]; People v DeLee, 108 AD3d 1145 [4th Dept 2013]). The Appellate Division affirmed defendant's conviction of criminal possession of a weapon in the third degree. Defendant reached his conditional release date for his sentence of 3 Yz to 7 years in prison for the weapons conviction one week before the Appellate Division's decision, and he has now been released from prison and is under parole supervision. Justice Peradotto granted the People permission to appeal to this Court on August 14,2013 (R. 2; People v DeLee, 21 NY3d 1047 [2013]). This Court, on its own motion, directed on September 4,2013, that this appeal would be reviewed pursuant to 22 NYCRR 500.11. After receiving letter briefs from the parties and amici curiae, this Court, on December 6,2013, terminated its review under 22 NYCRR 500.11 and directed that this appeal proceed in the normal course of briefing and argument. STATEMENT OF FACTS Trial Proof On November 14,2008, at approximately 8:30 p.m., the victim! arrived at a party that was taking place in the front yard of a residence in the 400 block of Seymour Street in Syracuse. 1 Defendant killed Moses Cannon, who defendant and others perceived as a gay man; Cannon identified and lived as a trans gender woman and was known by the name LaTeisha ("Teish") Green (R. 735-738, 758, 1027-1028). 3 The victim was in a car with the victim's brother, Mark Cannon, and Daquan Hopper, who was known as "Star" (R. 736-738). They had been invited over by their friend, Alyssa Davis (R. 737, 765). The victim sat in the front passenger seat (R. 752). The victim's brother was driving, with Daquan Hopper in the back seat (R. 736, 752). Mark Cannon described his and Daquan Hopper's sexual orientation as gay, and testified that the victim was also gay (R. 758). It was well known that they were gay (R. 758, 1027-1028). The victim was wearing a black leather coat, a yellow scarfworn as a head wrap, tight-fitting jeans, a T-shirt, panties, Timberland boots and a bra (R. 747-748, 758, 760-761). The victim, Mark Cannon and Daquan Hopper remained in the car, which Mark Cannon parked along the curb on Seymour Street, a one-way street, with the driver's side next to the curb (R. 738-739). After they visited for about five minutes with Alyssa Davis, who stood outside the car, defendant came up to the car with a gun and fired a shot into the car (R. 739, 742). Mark Cannon could see defendant's face (R. 744). The blue hooded sweatshirt that defendant wore did not cover his whole face (R. 744). Although Mark Cannon did not learn defendant's name until later, he had seen defendant on two previous occasions (R. 745). Mark Cannon identified defendant in court as the shooter (R. 746). Mark Cannon suffered a graze wound to his shoulder (R. 751). Mark Cannon thought that the victim had been shot in the arm, but the victim complained of chest pain as Mark Cannon drove to their home (R. 742). From there, an ambulance took them to the hospital, where the victim was pronounced dead (R. 743, 751). Alyssa Davis was among a group of people who had gathered outside of her residence on Seymour Street on November 14, 2008. Many of the people gathered there were drinking. Defendant, his girlfriend Jasmine Gaston, and her brother Johnny Gaston, traveling in Johnny 4 Gaston's van, joined this gathering at around 7 p.m. (R. 890-891,894). Nico Lemon, a cousin of Jasmine and Johnny Gaston, who lived with Alyssa Davis in the downstairs part of the Seymour Street residence with their two children, and Alyssa Davis's brother, David Junious (a/k/a "Doughboy,"), who also lived there, were already drunk when defendant and the Gastons arrived (R. 918-919). Also present were three sisters of Alyssa Davis and David Junious (R. 1023). Their mother, Pam Fletcher, who lived upstairs at the Seymour Street residence, was also present (R. 1016), as was Cassandra Williams, who had just that day met David Junious, who invited her to the get-together at Seymour Street (R. 788-789). After the victim, Mark Cannon, and Daquan Hopper pulled up in front of the house, Jasmine Gaston heard Nico Lemon say, "There was some faggots" and "[G]et them faggots from front of my house" (R. 921). Jasmine Gaston saw someone run out of the house with a gun and she heard a pop (R. 921-922, 938). Erica Allison had been visiting with the victim, Mark Cannon and Daquan Hopper at the car (R. 1027). As she walked away from the car, defendant, wearing a dark hoodie, passed her (R. 1032). As he did, she heard him say, "We don't play that faggot shit" (R. 1033). As Erica approached the house, she heard a noise she described as a "pooh" (R. 1033). People then ran off, and a few minutes later, defendant left with Johnny and Jasmine Gaston in Johnny's van (R. 1035). David Junious met Cassandra Williams while on his way home from work on November 14, 2008, and brought her to the gathering at Seymour Street (R. 1050). When the victim, Mark Cannon and Daquan Hopper arrived that evening, David Junious, who knew that Mark Cannon and the victim were gay and that the victim dressed like a woman, got loud, as did Nico Lemon and defendant (R. 1052-1053). David Junious said to defendant, "Get them out of here" and told defendant that there was a gun in a closet in the house (R. 1054). Defendant then 5 said something about "shooting them faggots" (R. 1055). David Junious recalled that Nico Lemon and defendant were "going on about not liking [the victim] and Mark Cannon being around" (R. 1062). Defendant went into the house, and when he came back out, he went up to the car (R. 1055-1056). David Junious did not hear a noise, but after people started running and the car sped off, defendant handed David Junious the rifle (R. 1055-1057). David Junious gave the rifle to Nico Lemon, who hid it in the basement (R. 1055-1058). David Junious then hid the rifle under his mother's mattress in the upper apartment (R. 1058). The police recovered it from that location (R. 941). Cassandra Williams recalled that when the car arrived, a group of men that included David Junious and Nico Lemon said that they did not like "faggots" (R. 792-793). She heard David Junious tell another man to get a gun from his closet (R. 794). Shortly afterwards, she saw that a black male with a hooded sweatshirt went into the house and came out carrying a long gun along his side (R. 794-795). She saw the man walk up to the car, set the gun in the driver's side window and fire (R. 797). Cassandra watched the car take off and three people leave in a van (R. 798-799). C.J., the sister of Alyssa Davis and David Junious, spoke to the victim, Mark Cannon and Daquan Hopper at the car (R. 1097). She saw defendant walk up to the car, point the gun in the car, and say that he was "not done with this faggot," "he's not done with this faggot shit," and that they needed to get out of there (R. 1098). Defendant then pulled the trigger and returned to the house with the gun as the car sped off (R. 1099). Alyssa Davis had known the victim and Mark Cannon for 9 or 10 years (R. 1099). She invited them to the get-together at Seymour Street on November 14,2008, and went up to the car when they arrived (R. 1118). Alyssa heard a male voice tell her to "get these faggots out of 6 here" CR. 1119). Then, a dark-skinned male wearing a hoodie came up to the car with a gun; he put the gun in the window of the car and said, "Get you faggots, get out of here ... get the fuck out of here" (R. 1120). Alyssa then heard a click and the car sped away (R. 1116). Defendant was the only man at the get-together with the dark skin that Alyssa saw on the shooter's hands, and she also recognized defendant's voice (R. 1117). The police found defendant two days after the shooting, shortly after midnight on November 16,2008, at the apartment of Lashea Smith, who was a cousin of the Gastons (R. 929- 932, 1106-] 107). Defendant told the police that he and the Gastons had left Seymour Street at 3 or 4 p.m. on November 14,2008, and he denied being present when the victim was shot (R. 1000-1001, 1135). Defendant later said that he was not going to tell on himself and that he knew he could not beat the case (R. 1001, 1] 36). During part of the interview, defendant repeatedly said, "[t's over," which the officers took to mean that defendant understood that he thought that his life was over or that he knew he would spend his life in jail CR. 1002, 1136). Defendant also said that he did not mean for this to happen and he denied hating homosexuals (R. 1003, 1137). Jury Instructions, Verdict and Sentencing The court instructed the jury to consider murder in the second degree as a hate crime, and if the verdict on that charge was gui Ity, not to consider manslaughter in the first degree as a hate crime or manslaughter in the second degree as a hate crime (R. 1249-1250). The court also instructed the jury that if the verdict on murder in the second degree as a hate crime was not gui Ity, to then consider the lesser offense of manslaughter in the first degree as a hate crime, and if that verdict was guilty, not to consider the charge of manslaughter in the second degree as a hate crime (R. 1251). The court told the jury that if the verdict on manslaughter in the first degree was not guilty, the jury was to then consider manslaughter in the second degree as a hate 7 crime (R. 1251). The court further instructed the jury that regardless of the verdict on the hate crimes, the jury was to consider murder in the second degree, manslaughter in the first degree and manslaughter in the second degree, reaching the lesser of these counts only if the verdict was not guilty ofthe higher counts (R. 1251-1254). The court told the jury to then consider the count of criminal possession of a weapon in the third degree (R. 1255-1256). Jury deliberations began at 12:18 p.m. (R. 1270), and at approximately 1 :29 p.m., the jury asked for the definition of manslaughter, murder and hate crime (R. 1272, 1279). The court reinstructed the jury regarding how a hate crime is committed, how the jury was to consider the homicide charges, the elements of the homicide charges, and the difference between the hate crime and a non-hate crime (R. 1279-1285). The court explained that the difference between the homicide charges as a hate crime and a non-hate crime is the selection of the intended victim based on a perception regarding the victim's sexual orientation, "That added element is not included in murder in the second degree, manslaughter in the first degree or manslaughter in the second degree. It is only included in murder in the second degree as a hate crime, manslaughter in the first degree as a hate crime, and manslaughter in the second degree as a hate crime. There lies the difference between the two. That element." (R. 1279-1280). The court instructed the jury that the non-hate homicide charges were exactly the same as the hate crimes "without the added element that the accused selected the person against whom the offense was committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the sexual orientation of a person" (R. 1283-1284). At 3 p.m., the trial court received three more notes from the jury (R. 1286). One of these notes asked the court to explain the difference between manslaughter in the first degree and manslaughter in the second degree "as a hate crime only" (R. 1286). 8 The jury found defendant guilty of manslaughter in the first degree as a hate crime and criminal possession of a weapon in the third degree, did not render a verdict on the charge of manslaughter in the second degree as a hate crime, and found defendant not guilty of the other counts (R. 1291-1292) (see Verdict Sheet, reproduced at R. 305 and as Attachment A to this brief). Before the court discharged the jury, defense counsel moved to vacate the conviction of manslaughter in the first degree as a hate crime as inconsistent with the not guilty verdict on the charge of manslaughter in the first degree (R. 1294). The court accepted the verdict and discharged the jury (R. 1295-1296). On August 10,2009, defendant brought a CPL 330.30 (1) motion asking the court to set aside the verdict of guilty on the charge of manslaughter in the first degree as a hate crime, claiming that manslaughter in the first degree, upon which the jury reached a not guilty verdict, was an element of manslaughter in the first degree as a hate crime (R. 297-302). The People responded in opposition to that motion (R. 306-311), and attached to that response a sworn written statement from the foreperson of the jury in which the foreperson explained that the jury found defendant not guilty of the non-hate crimes because the jury detennined that this was a hate crime and that finding "defendant guilty of the homicide charges that were not hate crimes would have been unnecessary or even 'overkill'" (R. 312) (Foreperson Statement, reproduced at R. 312 and as Attachment B to this brief). The court denied defendant's CPL 330.30 (1) motion (R. 13] 1). Defendant did not contest the predicate felony statement (R. 1309). The court sentenced defendant to 25 years in prison for manslaughter in the first degree as a hate crime and a concurrem tenn of 312 to 7 years in prison for criminal possession of a weapon in the third degree (R. 1316). 9 POINT I THIS COURT SHOULD REINSTATE DEFENDANT'S CONVICTION OF MANSLAUGHTER IN THE FIRST DEGREE AS A HATE CRIME The People ask this Court to reinstate the guilty verdict and conviction against defendant for manslaughter in the first degree as a hate crime. The jury's verdict, when viewed in light of the trial court's instructions to the jury, was not repugnant to the jury's verdict of not guilty of manslaughter in the first degree as a non-hate crime. A. The People presented overwhelming proof that defendant committed a hate crime under the Hate Crimes Act of 2000. When the Hate Crime Act of 2000 became the law of this State as Article 485 of the Penal Law, this State recognized that crimes motivated by bias and prejudice "send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs" (Penal Law § 485.00). A person commits a hate crime when he or she selects the victim or intentionally commits a specified offense against a victim "in whole or in substantial part because of a belief or perception regarding the victim's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation" (Penal Law § 485.05 [1] [a] and [b D. Manslaughter in the first degree is one of the specified offenses that qualify as a hate crime (Penal Law § 485.05 [3D. Manslaughter in the first degree committed as a hate crime is classified as a class B violent felony offense (Penal Law § 485.10 [1 D, as is manslaughter in the first degree committed as a non-hate crime. Penal Law § 485.10 provides for greater punishment where a defendant is convicted of a hate crime. For a second felony offender such as defendant, the minimum permissible sentence is a determinate sentence of 10 years in prison (Penal Law § 485.10 [3] [eD, while as a non-hate crime the minimum permissible sentence is a determinate sentence of eight years in prison (Penal Law § 70.06 [6] [aD. 10 In enacting the Hate Crimes Act of 2000, the Legislature found that "hate crimes should be prosecuted and punished with appropriate severity" (Penal Law § 485.00). If the decision of the majority of the Appellate Division is upheld in this case, however, defendant will have no conviction for manslaughter in the first degree despite the jury's verdict finding him guilty of that charge, and defendant will go virtually unpunished for killing his victim, despite the overwhelming proof that defendant killed the victim because of defendant's belief that the victim was gay. The People urge this Court to reinstate defendant's conviction of manslaughter in the first degree as a hate crime. A person is guilty of a hate crime under Penal Law § 485.05 when that person commits any of the offenses specified in Penal Law § 485.05(3), including manslaughter in the first degree, because of a belief or perception regarding, among other things, the sexual orientation of the victim, regardless of whether the belief is correct (Penal Law § 485.05) (see Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 39, Penal Law § 485.00). The People presented overwhelming proof that when defendant shot and killed the victim, defendant acted because of defendant's belief or perception of the victim's sexual orientation. The victim, the victim's brother, and their friend accepted an invitation to come to a gathering in the front yard of a residence on Seymour Street in Syracuse on November 14, 2008. It was well known by people already at this party that these three individuals were gay. As soon as they drove up to the curb and started to visit with others as they sat in their car, comments filled the air about getting "them faggots" to leave (see R. 792-793, 921, 1033, 1055, 1098, 1120). Defendant went inside a house, got a ritle, walked up to the car, and fired a shot, killing the victim. As defendant did this, Alyssa Davis, the woman who had invited the victim to the party, heard the shooter say, "Get you faggots, get out of here ... get the fuck out of here" (R. 1120). Another witness, c.J., 11 heard defendant say, as he pointed the gun into the car, that he was "not done with this faggot shit," just before defendant fired the gun (R. 1098), B. The Tucker/Muhammad rule does not require reversal of the hate crime conviction in this case. The trial court instructed the jury to consider the homicide charges that were classified as hate crimes separately from the homicide charges that were not classified as hate crimes (R. 1252). The court told the jury it must first decide whether to find defendant guilty of murder in the second degree as a hate crime, and if it found defendant guilty, the jury was not to consider the lesser included charges of manslaughter in the first degree as a hate crime and manslaughter in the second degree as a hate crime. If the jury found defendant not guilty of murder in the second degree as a hate crime, it was to then consider manslaughter in the first degree as a hate crime. If that verdict was guilty, the jury was not to consider manslaughter in the second degree as a hate crime. Tfthat verdict was not guilty, then the jury was to consider manslaughter in the second degree as a hate crime (R. 125]). But regardless ofthe jury's decision regarding these hate crimes, the court instructed the jury that the jury had to consider murder in the second degree as a non-hate crime, and if the verdict was not guilty, to consider manslaughter in the first degree as a non-hate crime, and again, if a not guilty verdict was reached, to consider manslaughter in the second degree as a non-hate crime (R. 1252-1255). The jury based its verdict on its understanding of the court's jury instructions. The court properly accepted that verdict because it was not inconsistent, in light of the court's instructions, for the jury to find that defendant committed this homicide as a hate crime, and thus did not commit this homicide as a non-hate crime. This Court's rule derived from People v Tucker (55 NY2d 1,4 [1981]) and People v Muhammad (17 NY3d 532, 539) does not require reversal in this case. This Court should view 12 the Tucker/Muhammad rule, used by appellate courts to change a guilty verdict into an acquittal, only applicable where the only logical conclusion is that the jury- properly and clearly instructed by the court -- found that a defendant did not commit one or more elements of an offense, and yet, inexplicably, the jury found the defendant guilty. A factually inconsistent verdict "can be attributed to mistake, confusion, compromise or mercy" and "does not provide a reviewing court with the power to overturn a verdict" (People v Muhammed, 17 NY3d at 545). A trial court is not required to have a jury continue to deliberate when ajury arrives at a factually inconsistent verdict (id.). Also, a verdict will only be found legally repugnant where, based on the trial court's instructions to the jury, it is theoretically impossible to reconcile a guilty finding on one count with a not guilty finding on another count (id. at 538-542). Here, the court's instructions did not require that the jury find defendant guilty of the non-hate homicide charge upon a guilty verdict of the hate crime homicide charge. Nor did it instruct the jury that defendant's hate-based motive made a non-hate crime into a lesser-included offense of a hate crime. Instead, the court told the jury it must consider the hate crime category separately from the non-hate crime category_ It also told that the hate-crime homicide was different irom the non-hate crime homicide because of the hate-crime motive for a hate crime. In effect, the court's instructions permitted the jury to find defendant guilty under count one of the indictment if the jury found defendant was motivated to kill the victim by defendant's belief regarding the victim's sexual orientation, and, based on that finding, to find defendant not guilty under count t\vo because defendant's crime was not merely a non-hate homicide. The court's instruction and its verdict sheet even created the possibility that the jury could have found defendant guilty of manslaughter in the second degree as a hate crime, and then could have found defendant guilty of murder in the second degree as a non-hate crime. 13 In light ofthe court's instruction that the hate crimes were different from the non-hate crimes, this Court should reinstate the guilty verdict on the hate crime of manslaughter in the first degree. The court correctly instructed the jury to consider murder in the second degree as a hate crime, and to then consider manslaughter in the second degree as a hate crime only if it found defendant not guilty of murder in the second degree as a hate crime. The later part of the court's instructions, even if telling the jury that it must reach a verdict on the homicide as a non- hate crime regardless of the jury's verdict on the homicide as a hate crime, even if confusing and inaccurate, does not require that this Court disregard the guilty verdict that resulted from the clear and accurate instructions that resulted in the guilty verdict on the charge of manslaughter in the first degree as a hate crime. As Justice Peradotto's dissent recognized, in examining claims of repugnancy, this Court has looked to whether a jury's verdict is inherently inconsistent when viewed in the light of the trial court's instructions - without regard to the accuracy of those instructions - regarding the elements of each crime (People v DeLee, 108 AD3d at 1151, quoting People v Muhammad, 17 NY3d at 539 and People v Tucker, 55 NY2d at 4, and citing People v Hampton, 61 NY2d 963, 964 [1984]). Here, the verdict is not inherently inconsistent in light ofthe trial court's instructions. The trial court told the jury it had to consider the hate crimes and the non-hate crimes separately, and that the difference between a hate crime from a non-hate crime was the selection of the victim based on defendant's perception of the victim's sexual orientation. Consistent with the court's instructions, the jury decided that this was a hate crime. The jury, following the court's instructions, reasonably concluded that this finding negated a finding that it was a non-hate crime. 14 The majority decision by the Appellate Division in this case, in trying to reconcile the verdict, actually created a repugnancy with regard to the third count of the indictment. By finding defendant guilty of criminal possession of a weapon in the third degree, the jury demonstrated its belief that defendant was the person who brought the rifle to the car and fired the shot that killed the victim, acting with the intent to use the rifle unlawfully against another. It would have been inconsistent for the jury to find that defendant possessed the rifle with that intent, but did not commit this homicide. This is yet another reason for this Court to find that its Tucker/Muhammad mle does not require reversal of the hate crime conviction in this case. The jury's finding of guilty on manslaughter in the second degree as a hate crime (as a lesser included offense of count one of the indictment) was consistent with the guilty verdict on count three. The finding of not guilty on count two and its lesser included charges was the result of a jury charge that, while perhaps confusing and inaccurate, should not serve as the undoing of the jury's finding that defendant was guilty of manslaughter in the second degree as a hate crime and cnminaJ possession of a weapon in the third degree. This COUli does not conclude that its Tucker/Muhammad rule requires that a conviction be vacated in every instance of a jury reaching a guilty verdict on one charge and not guilty on another charge. Recently, in People v Abraham (22 NY3d 140 [2013]), this Court held that a factual inconsistency in a verdict that convicted the defendant in that case on one count but acquitted him of another count did not render the proof legally insufficient. Here, the proof that defendant killed his victim when acting under the hate-crime motivation of defendant's belief as to the victim's sexual orientation IS overwhelming. 15 C. What happened during and after deliberations supports the conclusion that the guilty verdict should be reinstated. The jury, early in its deliberations, determined that defendant committed a hate crime. Deliberations began at 12:18 p.m. (R. 1270), and at approximately 1:29 p.m., the jury asked for the definition of manslaughter, murder and hate crime (R. 1272, 1279). The court reinstructed the jury regarding how a hate crime is committed, how the jury was to consider the homicide charges, the elements of the homicide charges, and the difference between the hate crime and a non-hate crime (R. 1279-1283). The court explained that the difference between a hate crime and a non-hate crime is the selection of the intended victim based on a perception regarding the victim's sexual orientation, "That added element is not included in murder in the second degree, manslaughter in the first degree or manslaughter in the second degree. It is only included in murder in the second degree as a hate crime, manslaughter in the first degree as a hate crime, and manslaughter in the second degree as a hate crime. There lies the difference between the two. That element." (R. 1279-1280). The court instructed the jury that the non-hate homicide charges were exactly the same as the hate crimes "without the added element that the accused selected the person against whom the offense was committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the sexual orientation of a person" (R. 1283-1284). At 3 p.m., the trial court received three more notes from the jury. One of these notes asked the court to explain the difference between manslaughter in the first degree and manslaughter in the second degree "as a hate crime only" (R. 1286 [emphasis supplied]). From these jury notes, it can be concluded that at least by 3 p.m., and perhaps as early as 1 :29 p.m. on the afternoon when the jury began to deliberate, the jury had concluded that defendant committed this homicide as a hate crime, and that the jury wanted further instruction from the court in order to decide whether defendant committed murder in the second degree as a 16 hate crime, manslaughter in the first degree as a hate crime, or manslaughter in the second degree as a hate crime. The next day, the jury found defendant not guilty of murder in the second degree as a hate crime, guilty of manslaughter in the first degree as a hate crime, not guilty of murder in the second degree as a non-hate crime, not guilty of manslaughter in the first degree as a non-hate crime, not guilty of manslaughter in the second degree as a non-hate crime, and guilty of criminal possession of a weapon in the third degree (T. 1296; see also Verdict Sheet, reproduced at R. 305 and as Attachment A to this brief). Defense counsel stated that he needed to "raise a motion to vacate a conviction on the manslaughter in the first degree as a hate crime, as an inconsistent verdict with acquittal of manslaughter in the first degree" (R. 1298). The trial court indicated that it understood, but defense counsel made no further argument, did not ask the court to reinstruct the jury or have the jury continue to deliberate, and only stated that he needed "to preserve the record" (R. 1298). The court then discharged the jury. After the trial, defendant made a motion to set aside the verdict (see R. 297-302). In response to that motion, the People provided the court with a sworn statement taken from the foreperson of the jury one week after the verdict (reproduced at R. 312 and as Attachment B to this brief). The foreperson indicated that the jury decided "relatively quickly" that defendant committed a hate crime, and that the jury did not find defendant guilty of the non-hate crime because that "would have been unnecessary or even 'overkill' "(R. 312; Attachment B). Justice Peradotto's dissent correctly found that the jury's verdict was reasonable and logical based upon the instructions given by the trial court to the jury (People v DeLee, 108 AD3d at 1149). The jury was never told in this case that its verdict on any of the homicide charges for the "non-hate" counts had to be guilty if the jury found defendant guilty of the 17 corresponding homicide charge as a hate crime. Instead, the jury was repeatedly instructed that the "non-hate" homicide charges had to be considered separately from the hate-crime charges. Also, the verdict sheet indicated that manslaughter in the first degree as a hate crime was a "lesser included count" of murder in the second degree as a hate crime - only to be reached in the event ofa not guilty verdict of murder in the second degree as a hate crime (see R 305; Attachment A). This same "lesser included count" language appears again in the verdict sheet where it directed the jury to reach manslaughter in the second degree as a hate crime only if the jury found defendant not guilty of manslaughter in the first degree as a hate crime (R. 305; Attachment A). And the "lesser included count" language also appears on the verdict sheet with regard to murder in the second degree (as a non-hate crime) and manslaughter in the first degree (as a non-hate crime) (R. 305; Attachment A). That "lesser included count" language, however, does not appear on the verdict sheet where the jury was instructed to "go on to the second count" after considering the hate-crime homicide charged in the first count (R. 305; Attachment A). Thus, it was reasonable for the jury to conclude that it was permissible (and perhaps even required) that once the jury found that defendant killed his victim as a hate crime, the jury had to reject the theory that defendant killed the victim as a non-hate crime -- that is, that he killed the victim for some other reason or for no reason. Logically, the jury could have concluded that the trial court would have had no reason to have the jurors continue to deliberate on the homicide charges once they found defendant guilty of one of the homicide counts as a hate crime if the verdict on the hate crime somehow controlled or limited the jury's verdict on the non-hate crime. By instructing the jury that the non-hate crimes were the same as the hate crimes "without the added element that the accused selected the person against whom the offense was committed or intended to be committed in whole or in substantial part because of a belief or 18 perception regarding the sexual orientation of a person" (R. 1284-1285), the court gave the jury an "either/or" choice. If the jury concluded (as it did) that the People had established that this homicide was a hate crime, then, under this instruction, the verdict of not guilty on the non-hate crime homicide charges was proper. In light of the way that the trial court instructed the jury, it was reasonable and logical for the jurors to conclude that they should convict defendant of the non-hate crime homicide only if they found defendant committed this homicide without the added element of acting because of defendant's belief regarding the victim's sexual orientation. The court could have instructed the jury to first consider the homicide charges as a hate crime, and to cease its consideration of the homicide charges as a non-hate crime if the jury found defendant guilty of any of the three levels of homicide as a hate crime. Another possible instruction would have been for the court to instruct the jury that if it found defendant guilty of any of the three levels of homicide as a hate crime, the jury had to find defendant guilty of that same level of homicide as a non-hate crime. But the court did not take either of these approaches. Instead, it repeatedly told the jury that it had to consider the homicide as a hate crime separately from the homicide as a non-hate crime. It was only logical for the jury to decide that the court's instruction had some meaning other than requiring conformity between the verdict on the hate crime and the non-hate crime. That is, the jury could have logically concluded that if the verdict on the non-hate crime had to be guilty if the verdict on the hate crime was guilty, the court would have said so. By not telling the jury that a guilty verdict on a homicide charge as a hate crime required a guilty verdict on the same charge as a non-hate crime, the court invited the jury to conclude that a not guilty verdict was permissible after a finding of guilty on a hate crime charge. After all, once the jury concluded that this homicide was committed as a hate crime, it concomitantly concluded that it was not a non-hate crime - that it 19 fit the first, and more serious category of a hate crime, and thus did not fit the less serious category of a non-hate crime. Setting aside the jury's verdict on the hate crime homicide after the jury detemlined that this was a hate crime and not merely an ordinary or non-hate crime, unjustly rewards defendant for committing this homicide with a motive that the Legislature has sought to condemn by enacting hate crime legislation. D. This Court, as it reinstates the verdict, should use this opportunity to inform lower courts on the proper instructing of juries on hate crimes. As this Court decides this appeal, the Court may choose to use this case as an opportunity to provide trial courts with guidance regarding how to instruct a jury in cases such as the one here, where a dual-count indictment charges a crime as a hate crime in one count ofthe indictment and as a non-hate crime in another count in the indictment. The trial court here took the approach that the two theories must be considered separately and thus a guilty verdict on the hate crime does not dictate a guilty verdict on the non-hate crime. Based on the court's instructions, the jury here took an approach similar to the one taken where an indictment charges both intentional murder and depraved indifference murder (see People v Gallagher, 69 J\ry2d 525, 529-530 [1987) [holding that a count charging intentional murder and a count charging depraved indifference murder for the same killing had to be charged to the jury in the alternative because the defendant could not have acted both intentionally (with a conscious objective of bringmg about that result) and recklessly (with a conscious disregard of a substantial risk that such a result will occur)]). Here, defendant could not have simultaneously killed his victim in whole or in substantial part because of a belief or perception regarding the victim's sexual orientation, and concomitantly, killed his victim without that hateful motivation. This Court may direct that in future cases, a trial court should instruct the jury not to reach a verdict on a non-hate crime where the jury finds a defendant guilty of the same crime as 20 a hate crime. Or this Court may direct trial courts to instruct juries that a guilty verdict on a hate crime requires a guilty verdict on the companion non-hate crime. But even if this Court suggests a different approach for future cases, it should reinstate the guilty verdict for the hate crime in this case. This Court has previously held that it will not consider the accuracy of a jury charge in reviewing a claim of repugnancy, but rather, will review the jury instructions as given to the jury (People v Tucker, 55 NY2d at 7-8). "The instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict" (id. at 8 [footnote omitted; emphasis supplied]). That is not the case here because the jury was instructed that the hate crime was different from the non-hate crime, that the hate-based motivation distinguished one set of homicide charges from the other set of homicide charges, and that the two sets of charges had to be considered separately; that is, regardless of the verdict on the homicide as a hate crime, the jury had to consider and deliver a verdict on the homicide as a non-hate crime. Viewed in light of the jury charge, this case simply does not present a legitimate concern that the jury found that all of the elements of one crime were established, but at the same time, found that one or more of the same elements were not proven for another crime (see People v Tucker, 55 NY2d at 6, n 2). While this Court in Tucker cautioned against "speculating on how the jury perceived and weighed the evidence" (id. at 7), here, no speculation is needed to conclude that the jury quickly determined that this homicide was a hate crime. That fact was demonstrated by the jury notes requesting reinstruction on manslaughter in the first degree and manslaughter in the second degree only as a hate crime (T. 1286, 1287). The sworn statement of the jury foreperson confirmed this fact (R. 306; Attachment B). Only later in the deliberations did the jurors, as required by the trial court's instructions, separately consider the non-hate 21 homicide charges, rejecting them not because the jurors found the proof of any element lacking, but because the jurors found that this \vas a hate crime, not a non-hate crime. Even if this Court finds that the better practice would have been for the trial court to tell the jury to continue to deliberate before accepting the jury's verdict, this Court should reinstate the defendant's conviction. Had the Court, in response to defense counsel's statement that the verdict was inconsistent, told the jury to continue to deliberate, there is no reasonable possibility that the jury would have acquitted defendant of manslaughter in the first degree as a hate crime. The jury would have either explained in a note to the court, as the foreperson explained in her sworn statement a week later, that the jury found that this \vas a hate crime and for that reason did not find defendant guilty of the non-hate crime, or would have simply conformed the verdict on the non-hate crime with the verdict on the hate crime by finding defendant guilty of both counts. The error, if any, is an error of foml, not substance. Defendant has not claimed that in the week between the discharge of the jury and the sworn statement of the jury foreperson some outside influence tainted that sworn statement, or that the trial court should have conducted a hearing to review the validity ofthe sworn statement. Nor did defendant claim that reliance on the sworn statement a violation of the rule that a juror may not impeach a verdict after the fact. And here, the statement supports, rather than impeaches, the verdict. E. If this Court finds that the verdict finding defendant guilty of manslaughter in the first degree as a hate crime violates the Tucker/Muhammed rule, this Court should abandon that rule. The People urge this Court to find that a proper application of the Tucker/Mohammed mle supports reinstatement of the verdict finding defendant guilty of manslaughter in the first degree as a hate crime. But ifthis Court finds othervvise, this Court should abandon that mle. Instead, it should adopt a rule that permits a court to accept an inconsistent verdict. 22 In Judge and Jury - Inconsistent Verdicts in the Federal Courts (63 Harv L Rev 649, 651-652 [1950]), Professor Alexander Bickel defended the rule permitting jurors to return inconsistent verdicts, writing: "The law states duties and liabilities in black and white terms. Human actions are frequently not as clean-cut. Judges themselves sometimes undertake, in sentencing, the search for a middle ground between the absolutes of conviction and acquittal. To deny the jury a share in this endeavor is to deny the essence of the jury's function" (id. at 651-652, quoted in Paul Schechtman and Megan Quattlebaum, New York Court of Appeals Modifies Doctrine of Inconsistent Verdicts, 11 New York Criminal Law Newsletter 2 [Spring 2013] at 13). As pointed out in Paul Schechtman and Megan Quattlebaum's 2013 article, the United States Supreme Court does not prohibit inconsistent verdicts (id. at 11, citing United States v Powell, 469 US 57 [1984] and Dunn v United States, 284 US 390 [1932]), nor does this Court until 1976 (id. at 11-12, citing People v Carbonell, 40 NY2d 948 [1976]). That article also argues that after this Court's decision in People v Muhammed (17 NY3d 532), "the inconsistent verdict doctrine in N ew York is moribund, if not dead" and that "the (almost) death of the inconsistent verdict doctrine in New York should not be greatly mourned" (id. at 13). F. Defendant should not benefit from his killing the victim as a hate crime. The Appellate Division majority's application of the rule against inconsistent verdicts in this case, if allowed to stand, would result in a killer to go unconvicted and virtually unpunished. And this absurd result would be not only despite his hateful motivation based on his perception of his victim's sexual orientation, but because ofthat motivation. That motivation was so clearly evident to the jury that the jury convicted him of this homicide as a hate crime to the exclusion of the other, non-hate homicide choice that the trial court gave to the jury. 23 CONCLUSION The People respectfully ask this Court to reinstate the jury's verdict and defendant's conviction of manslaughter in the first degree, and direct that defendant surrender to the trial court to serve his sentence. JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney Of Counsel DATED: January 27, 2014 24 Respectfully submitted, WILLIAM J. FITZPATRICK, ESQ. Onon aga County District Attorney By: . -b:?/h1-?l , .... ,-cb( Ja Chief Assistant District Attorney Attorney for Appellant Criminal Courthouse 505 South State Street, 4th Floor Syracuse, NY 13202 Tel: (315) 435-2470 ATTACHMENT A POSSIBLE YER1HCTS PEOPLE V. DWIGHT DELEE Ihdictment # 2009·0348·1 Index # 09~0376 FIRST COUNT: =~.CQNDDEGREE. " R YOUR RDICf. IF IT IS GUILTY, THEN GO ONTO THE SECOND COUNT. IF IT IS NOT GUILTY, THEN" GO ONTO CONSIDER THE LESSER INCLUDED COUNT OF MANSLAUGIITER IN THE FIRST DEGREE, AS A HATE CRIME. n T· o . rrlS GUILTY, TImN GO ONTO THES.ECOND COUNT. IF IT IS NOT GUILTY 'IllBN GO ON TO CONSIDBRTIiE LESSER INCLUDED COUNT OF MANSLAUGHXER IN THE SECOND DEGREE, AS A HATE CRIME. o o ICI'ANP GO ONTO THE SECOND COUNT. SECOND COUNI' MP~~~~OWEGREE y Icr~1tIS GUILTY, THEN GO ON TO THE TIllRD COUNT. IF IT IS NOT GUILTY, THEN GO ONTO CONSIDER THE LESSER INCLUDED COUNT OF MANSLAUGHrER IN THE FIRST DEGREE. . . YOUR VERDICT. IF IT IS GUILTY, THEN GO ON TO THE nmm . COUNT. IF rr IS NOT GUILTY, THEN GO ONTO CONSIDER THE WSSER INCLUDED COUNI' OF MANSLAUGHrER.IN THE SECOND DEGREE. OUR VERDICT AND GO ON TO THE 1'HIRD COUNT. 'I'H1RP COUNT A288 GJJlLTY OR NOT GUU,TY GUILriOR~ ~RNOTGUILTY ATTACHMENT B STATE OF NEW YORK COUNTY OF. ONON.DAGA crrv OF SYRACUSE STATEMENT I, date of birth NY 13066. sworn, deposes. and sais: I am 54 years of age with a ••• I currently reside at .Clevoland Blvd. Fayetteville. I recently served as the forepersoll of the jury in the case of People v. Dwight DeLee, The jury reached its verdict on Friday, July 17. 2009. After we began. ou.r deliberations we first concluded that Dwight DeLee was the person who shot Moses Cannon. We went on to deliberate on whether the case was a hate crime as defmed by the judge. We'detennined that Dwight DeJ..ee>s motive and actions did meet the criteria a5 defmed by the: judge for a hate crime. We came to this decision relatively quickly, As we continued our deliberations we had a lot of discussion about the defendant's intent to kill. We discussoo aU the instructions that tho judge gave ~, We had a lot ofthe testimony and instructio1lB read back to us over two days. Eventtl.ally, we all agreed that the proof establisbed beyond a r~asonab1e doubt that the de:fendam was guilty of Ma.nslallghter First Degree. Sin.ce we had already detennlned that this was a hate crime, we found him guilty of Manslaughter in the First Degree as a hate crime. We discussed the other charges QfMurder Second Degree) MaMlaughter Fmt Degree and Man81aughter Second Degree that wore not hate criu::u:!s, but did tl,ot find him guilty of those charges once we had. determined that this was a hate crime, Finding tb.e defendant guilty of the homicide cbarges that were not hate crimes would have been unnecessary or even "overkill". Al[jo, we woot on and decided that Dwight DeLee was guilty of Criminal Possession of a Weapon as defined by the critoria that the judge gave us. At all times our deliberations were fait aUd open and everyone was given a chanoe to . speak and to listen to everyone else. No one put any ptessure on anyone else. NOTE1 FALSE STATEMENTS MADE llEREIN ARE PUNISHABLE ~ A CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW OFTljE STATE OF NEW YORK. AffU'Jned u.nder thl;: penalty ofperju.."Y. this 24th of July 2009. A295