The People, Appellant,v.Dwight R. DeLee, Respondent.BriefN.Y.October 15, 2014HISCOCK LEGAL AID SOCIETY Bon. Andrew W. Klein Clerk ofthe Cmni New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 PROMOTING JUSTICE FOR ALL SINCE 1949 October 11, 2013 Re: People v Dwight Delee 22 NYCRR 500.11 letter of Respondent Dear Mr. Klein: Please accept this letter in response to the People's letter submission pursuant to 22 NYCRR 500.11 that was received by our office on September 26, 2013. OVERVIEW The jury convicted Mr. Delee on manslaughter in the first degree as a hate crime while also acquitting him of manslaughter in the first degree. The Appellate Division, Fourth Department, reversed and dismissed that conviction on the basis oflegal repugnancy, under this Court's well-settled law. It is theoretically impossible to committhe manslaughter first as a hate crime without also committing manslaughter in the first degree, as it is an essential element of the fom1er. Mr. Delee was indicted for murder in the second degree, murder in the second degree as a hate crime, and criminal possession of a weapon in the third degree. After the close of proof, the trial court charged manslaughter as a hate crime in the first and second degree as lesser included charges of murder in the second degree as a hate crime (T. 698-705). The jury was then told that, "irrespective of your verdicts regarding [those crimes], whether it be guilty or not guilty, you must next go on to consider the second count ofthe indictment, murder 351 South Warren Street I Syracuse, New York 13202.2057 lei: 315.422.8191 fcv: 315.472.2819 i www.hisu;ckii:'g;.1JalcLv1 in the second degree, and the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree" (T. 705 [emphasis supplied]). The lower court charged that manslaughter in the first degree was a necessary element of manslaughter in the first degree as a hate crime, and said that, "a person is guilty of manslaughter in the first degree, when with intent to cause se1ious physical injury to another person, he cause the death of such person or of a third person." (p. 700). That same instruction was read verbatim to the panel when it later defined manslaughter in the first degree (T. 706). A jury note, marked as court exhibit 6, asked for the definitions of manslaughter, murder and hate crime (T. 727). The trial court correctly charged that the hate crimes required proof that the accused intentionally selected the person against whom the offense was conm1itted (T. 728-733), while the non-hate crimes required no proof that the accused selected the person against whom the offense was committed due to perceived sexual orientation (T. 737-738). A later jury note, marked as court exhibit 10, asked for only the difference between manslaughter in the first and second degree as a hate crime (T. 739), and the lower court reread the applicable charges (T. 741-742). The next day the jury returned its verdicts, finding Mr. Delee guilty of criminal possession of a weapon in the third degree and manslaughter in the first degree as a hate crime, and not guilty of manslaughter in the first degree (T. 7 48- 749). Before the panel was discharged, defense counsel asked to preserve the record and moved to vacate the conviction for manslaughter in the first degree as a bate crime, as it was inconsistent with the acquittal of manslaughter in the first degree (T. 7 51). The trial court merely said that it was going to dismiss the panel and then did so (T. 751-753). Defense counsel brought a written motion prior to sentencing to set aside the verdict (A. 280-288), and the prosecution responded, attaching an affidavit fi"om the jury foreperson, who essentially said that finding defendant guilty of the manslaughter would have been overkill (A. 295). The Appellate Division, Fourth Department, with one Justice dissenting, reversed Mr. Delee's conviction for manslaughter in the first degree as a hate crime and dismissed that count of the indictment (People v Delee, 108 AD3d 1145 [4th Dept 2013]). Dissenting Associate Justice Erin M. Peradotto granted the People's application to this Court. ARGUMENT A. THE MATTER WAS NOT PRESERVED FOR TI-llS COURT'S REVIEW First, the People argued below that the matter was not properly preserved for appellate review, as defense counsel never directed the court to have the jury resume its deliberations under CPL 310.50 (2). That would have enabled the lower court to point out the defect in the verdict so the jury could either remedy or explained it as the jury foreperson later did. According to the People, because that was not done, the defendant should not receive any relief (People's Brief at 9). The People here similarly imply a failure to preserve, noting that, "The trial court indicated (in response to defense counsel's repugnancy motion) 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'" (T. 751 ). The court then discharged the jury." (People's Letter Submission at 5). Failure to properly register a protest under CPL 470.05 (2) can preclude appellate review (People v Hunter, 17 NY3d 725, 728 [20 11 ]), and this Court has repeatedly held that it lacks appellate jurisdiction under such circumstances, as they fails to present a question oflaw (People v Padro, 75 NY2d 820 [1990]; People v Robinson, 36 NY2d 224 [1975]; People v De Tore, 34 NY2d 199 [1974]). While the Fourth Department below found that the issue was preserved and reversal was based on the law, its determination is not binding on this Court (see People v Hinton, 81 NY2d 867 [1993]). If, as the People claim, the matter was not preserved, the Fourth Department must have reached the repugnancy issue in the interests of justice under CPL 4 70.15 (3). This Court has no such jurisdiction and may only review questions of law (CPL 470.35 (I); People v Concepcion, 17 NY3d 192, 195 [2011]). Thus there is no question oflaw presented for this Court's review and this appeal must be dismissed. Second, the People's claim that the verdict should still stand was untimely because it was first raised in a response to the motion to set aside the verdict. The People claimed that the verdict was still proper because the jury may have interpreted the instructions as giving them a choice of convicting Mr. Delee of the manslaughter first or manslaughter first as a hate crime (Delee, 108 AD 3d at 1 146- 114 7). That argument was made long after the jury was discharged and there was no opportunity by the trial court to conect the error (CPL 470.05 [2]; People v Gray, 86 NY2d I 0, 20 [1995]). As such it does not present a reviewable question of law (People v Hawkins, 1 1 NY3d 484 [2008]; see Karger "The Powers ofthe New York Court of Appeals" [Revised Third Edition § 20:1 6]; Hunter, 17 NY3d at 727). B. THE VERDICT HERE WAS LEGALLY REPUGNANT Conviction on the manslaughter first as a hate crime was theoretically impossible in this case, given the acquittal on the manslaughter first count. The crimes as charged were identical, except that the former also required that the defendant intentionally selected the victim due to his sexual orientation. Thus there was no way to reconcile the verdicts (People v Muhammad, 17 NY3d 532, 539-540 [2011]). The Fourth Department noted that the People conceded that the verdict was inconsistent, but argued that it should be upheld as reasonable and logical, as the jury may have interpreted the instructions as giving them a choice of convicting Mr. Delee of the manslaughter first or manslaughter first as a hate crime (Delee, 108 AD3d at 1 146-1147). The majority rejected that proposition, pointing out that not even the foreperson's affidavit supported that conclusion (Delee at 1 146). More importantly, the panel reiterated the long held proposition that courts should look only to the crimes as charged to detennine legal repugnancy (Muhammad, 17 NY3d at 539-540; People v Tucker, 55 NY2d I, 5 [1981 ]). Thus the forepersons affidavit claiming that conviction on the manslaughter first "would have been overkill" was not just irrelevant, but also improper for the Court to even consider. Moreover that conclusion was a mistake, and legally impossible verdicts cannot be upheld on the ground that the verdict was the result of mistake, compromise, or mercy (Muhammad at 539; Tucker at 8). C. THE CHARGE WAS PROPER IN ALL RESPECTS The panel was told, without objection by either counsel, to consider the non- hate crimes of murder and manslaughter irrespective of their verdicts on the hate crimes (T. 705). Defendants are regularly charged in such manner. For example assault or robbery cases often include a criminal possession of a weapon charge that also constitutes a necessary element of the other charges. The hate crime in this case merely presented another element for the panel to consider, namely whether Mr. Delee intentionally selected the victim due to his sexual orientation. Consideration of each charge separately did not necessitate the jury reaching an inherently self-contradictory verdict (Tucker, 55 NY2d at 8; see People v Johnson, 87 NY2d 357, 360 [1996]). Manslaughter in the first degree was neither charged as a lesser included of the manslaughter first as a hate crime, nor could it have been charged that way, as both crimes were class "B" violent felonies. The panel was not told to disregard the plain manslaughter first if it found Mr. Delee guilty of manslaughter in the first degree as a hate crime. Even if it were a lesser included, the verdict would still have been legally inconsistent, as the not guilty verdict on the manslaughter first degree charge meant that one of the elements was not proven beyond a reasonable doubt, making it theoretically impossible to convict Mr. Delee for manslaughter in the first degree as a hate. crime (Muhammad, 17 NY3d at 539). The charge was proper as it conveyed the conect standard to the jury. While the jury may have been confused and mistakenly believed that conviction on both counts was "overkill" that was neither suggested nor mandated by the instructions. Jurors are not legal experts and have made mistakes in the past and will continue to make them in the fc1ture, no matter how the crimes are charged. There is a simple and sure way to deal with such errors when they do crop up- namely to have the trial court, as the resident legal expert, inforrn the panel of the defect in their verdict and direct them to resume deliberations so as to render a proper verdict (CPL 310.50 [2]; People v Robinson, 45 NY2d 448, 452 [1978]). The lower court's failure to do so in this case constituted enor meriting reversal of the conviction. D. THIS CASE PRESENTS WELL SETTLED LAW This case is about legal repugnancy and that is not changed by the fact that a hate crime was involved. Opposing counsel insists that this case demonstrates the need for guidance and special verdicts. The reality is that the hate crime presented only one additional element for the panel's consideration, namely whether Mr. Delee selected the victim due to his sexual orientation. There was nothing particularly confusing about the crimes charged or the manner in which they were charged. The remedy for legally repugnant verdicts brought to the trial court's attention is well known and simply applied under the existing law (see CPL 310.50 [2]). Further guidance is mmecessary. The People claim that the rules should be changed to allow trial courts to weigh repugnancy by considering other evidence, like the foreperson's affidavit in the present case. That rule has served prosecutors well in the past, as relief is limited to true legal repugnancy based on the dements as charged, and illogical verdicts stand ifthere is any theoretical way to uphold them under the law (see Muhammad, 17 NY3d at 539-540; People v Mason, 101 AD3d 1659, 1661 [2012]). Contrary to Appellant's and Aniici's claims, the applicable procedure is not to scour the record or charge as a whole, but to analyze only the crimes as charged to deternrine repugnancy. This nauow focus ensures that there is no impermissible conjecture or intrusion upon the deliberative process of the jury (Muhammad, 17 NY3d at 544; Tucker, 55 NY2d at 7). The fact that this Court decided Muhammad in 2011 strongly suggests that the matter does not need to be revisited. Defendant respectfully asks this Court to deny the People's submission in all respects and dismiss the appeal as it does not present a question of law for this Court's review, has no merit, and deals with a well settled area of the law that does not merit reconsideration. PR/pr Very truly yours, /)' - {) _)_f----;;-~~ !l.bf1·~~ Philip Rothschild Supervising Attomey cc: James Maxwell, Esq. Onondaga County District Attomey's Office Thomas W. Ude, Esq. Lambda Legal Dwight Delee