The People, Appellant,v.Dwight R. DeLee, Respondent.BriefN.Y.October 15, 2014To Be Argued By: JAMESP. MAXWELL, ESQ. (TIME REQUESTED: 15 M1NUTES) ~===~~=~====================================================== COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, VS. DWIGHT DELEE, Defendant-Respondent. APPELLANT'S REPLY BRIEF =====================================================~~======= JAMES P. 1l1AXWELL, ESQ Chief Assistant District Attorney Of COlillsel WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attoruey Attoruey for Appellant Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470 Fax: (315) 435-3969 DATE COMPLETED: April 2, 20] 4 ~====~======~============================================~========= TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ....................................................................... . POINT I THE COURT SHOULD REINSTATE DEFENDANT'S CONVICTION OF MANSLAUGHTER IN THE FIRST DEGREE AS A HATE CRIME............................................................ 2 CONCLUSION.... . ..... ......... ... . ...... .. ... .... ..... . .. . .. ......... ......... ... . .......... . . .. . .. 9 TABLE OF AUTHORITIES PAGE CASES Bumet v Coronado Oil & Gas Co., 285 US 393 (Brandeis, J.) .................................. 4 People v Bartolomeo, 53 NY2d 225 (1981) ........................................................ 4 People v Bin£, 76 NY2d 331 (1990)................................................................ 4 People v Hudson, 51 NY2d 233 (1980)............................................................ 4 People v Reome, 15 NY3d 188 (2010) .............................................................. 4 COlJRT OF APPEALS STATE OF NE\V YORK THE PEOPLE OF THE STATE OF NE\V YORK, Appellant, vs. D\VfCHT DELEE, Defendant-Respondent. Indictment No. 2009-0348-] Index No. 2009-0376 APPELLANT'S REPLY BRIEF Appellant, the People of the State of New York, received Respondent's Brief from defendant's appellate counsel on March 17,2014. The People submit this reply briefin further support of its appeal from a Memorandum and Order of the Appellate Division, Fourth Depm1ment, entered on July 19, 2013 (108 AD3d 1 ] 45), modi fying a judgment of conviction entered after a jury trial in Onondaga County Court (Walsh, J .), rendered August 18, 2009. 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 guilty verdict on that charge, 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. Defendant contends in his brief (at 10) that the People failed to preserve for appellate review the claim that the jury instruction could have been understood as an invitation to choose between the hate crime and non-hate crime. Additionally, defendant contends that the People's argument regarding the abandonment of the Tucker/Muhammad rule against repugnancy is unpreserved because it is being made for the first time to this Court. Defendant's contentions are without merit. This Court should review the People's claim and reinstate defendant's conviction of manslaughter in the first degree as a hate crime. On July 17, 2009, 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 (defendant's brief incorrectly states that defendant was found not guilty of this charge), and found defendant not guilty of the other charges (R. 1291-1292) (see Verdict Sheet, reproduced at R. 305 and as Attachment A to Appellant's Briefpreviously filed with this Court). 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). The People did 2 not make any objection when the trial court did not grant defendant any relief, accepted the verdict, and discharged the jury. On August 10,2009, defendant brought a CPL 330.30 (1) motion asking the cOUli to set aside the verdict of guilty on the charge of manslaughter in the first degree as a hate crime, claiming thai 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 determined 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 Appellant's Brief). The court denied defendant's CPL 330.30 (1) motion (R. 1311). The People did not object to the trial court's denial of defendant's CPL 330.30 (1) motion. This Court should find that the People were not required to object when the trial court properly declined to give defendant any relief. Defendant's argument, if accepted that the People should have objected when the trial court did not give defendant any relief·- would turn the concept of preservation into an absurd exercise. It would require that the People complain when, in the People's view, the court was accepting a proper verdict. As defendant points out, neither party objected to the trial court's jury instructions. Those instructions required a separate consideration of the allegation that defendant committed a hate-crime homicide from the allegation that defendant committed a non-hate-crime homicide (R. 1252). The trial court invited the jury to reach a guilty verdict on the homicide as a hate- crime and not guilty of the homicide as a non-hate-crime. The court told the jury that the 3 selection ofthe intended victim based upon a perception regarding the victim's sexual orientation constituted the difference between the hate-crime homicide charge and the non-hate- crime homicide charge CR. 1279-1280). Defendant fai led to object to those instructions. Thus, the trial court properly accepted the verdict, which was not repugnant in light of those instmctions. In addition, defendant's contention that it would be improper to consider the juror foreperson's post-verdict statement is unpreserved because defendant did not move to strike it from the People's response to his CPL 330.30 (1) motion. Nor did defendant, in the trial court, question the accuracy of this statement. Defendant also claims that the People's argument asking this Court to abandon the Tucker/Muhammad repugnancy test is unpreserved because it is being argued for the first time in this Court. This Court has overruled its own prior decisions in the past (see People v Bing, 76 NY2d 331 [1990J, overruling People v Bartolomeo, 53 NY2d 225 [1981] ["Although a court should be slow to overrule its precedents, there is little reason to avoid doing so when persuaded by the lessons of expelience and force of better reasoning" (id. at 338, quoting Bumet v Coronado Oil & Cras Co., 285 US 393, 407-408 [Brandeis, .T.] [additional citations omitted]); see also People v Reome, 15 NY3d 188, 193-194 [2010], oven'uling People v Hudson, 51 NY2d 233 [1980) and holding that the statute requiring corroborative evidence to support a conviction based upon an accompJ1ce's testimony does not require that all of the corroboration that depends to any degree on the accomplice's testimony be ignored)). The trial court and Appellate Division do not have the power to abandon or modify this Court's repugnancy test. This Court established the Tucker/Muhammad mlc, and therefore, this Court is the proper place to ask for the rule to be abandoned or modified. 4 Defendant argues in his brief (at 10-23) that the verdict was repugnant, and the People's argument, as well as Appellate Division Justice Perradotto's dissent, fails to provide a legal and policy basis to reconcile a guilty finding on one count with a not guilty finding on another count. Defendant fails to persuasively counter the People's arguments. The trial court instructed the jury to consider murder in the second degree as a hate crime, and if necessary the lesser offenses as a hate crime, and then to separately consider murder in the second degree and, if necessary the lesser charges, as a non-hate crime (R. 1252). The court told the jury that the only difference between a hate crime and a non-hate crime was the selection of the victim based on defendant's perception ofthe victim's sexual orientation (R. 1278-1280). 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 once it made this finding it did not need to find, and should not find, that defendant committed this homicide as a non-hate crime. 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. Although defendant throughout his brief accuses the People and the dissent in the Appellate Division of speculating into the jury's thought process, the verdict on its face, convicting of the hate crime but acquitting of the non-hate crime was reasonable based on the jury instruction. This Court's repugnancy test does not require rejection of the guilty verdict in this case. As argued in the Appellant's Brief previously filed with this Court and pointed out in Justice Peradotto's dissent, the Tucker/Muhammad rule should only be used by appellate courts to change a guilty verdict into an acquittal where the only logical conclusion is that the jury 5 found that a defendant did not commit one or more elements of an offense, and yet, inexplicably, the jury found the defendant guilty. The jury's verdict, viewed in light of the court's instructions, demonstrated that the jury believed it faced a choice between the hate crime and non-hate crime. Defendant suggests that in light of the jury charge, "the acquittal on the plain manslaughter was conclusive as to an element of the hate-crime manslaughter and there is no possible way that the verdicts can be reconciled" (defendant's brief at 18). But there is a way to reconcile the verdict. With the court insisting that the jury consider "hate" and "non-hate" separately, it was logical for the jury to find that guilt of one excluded guilt of the other. The jury charge did not mandate an inconsistent verdict, but rather, it invited and permitted the jury to choose between finding that this homicide was motivated by a belief as to the victim's sexual orientation, and thus was a hate crime, or was committed without that motivation, and thus was a non-hate crime. Defendant would like this Court to assume that the jury believed one of the elements of manslaughter in the first degree was not satisfied in finding defendant not guilty. However, it is evident from the trial court's instructions, the jury's questions, and the verdict that the jury believed manslaughter in the first degree as a non-hate crime did not apply under the facts of the case. Thus, the jury decided that this was not a non-hate crime because it was a hate crime. In light of the court's instruction that the hate-crime homicide was different from the non-hate- crime homicide, this Court should reinstate the guilty verdict on the hate crime of manslaughter in the first degree. Defendant claims in his brief that the statement of the jury foreperson does not give credence to the People's argument regarding the validity and rationality of the verdict. While it is the People's position that this Court should reinstate the conviction of manslaughter in the first 6 degree even without considering the jury foreperson's statement, it is also the People's position that this statement supports the People's argument. 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 the Appellant's Briefpreviously filed with this Court). 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). The People are not asking for the jury's verdict to be impeached. And the People are not improperly questioning the jury's verdict by speculating into the thought process of the jurors. Rather, the People are asking this Court to view the foreperson's statement as support for its verdict. That statement shows that there is no danger in this case that the jury convicted defendant of a crime while concomitantly believing that defendant did not commit an element of that crime. Defendant argues, citing a law review article written by Steven T. Wax, that courts cannot assume that an inconsistent verdict is a "benign act on the jury's part." Here, the jury foreperson's statement explaining the reasoning for the verdict removes any need for this Court to make assumptions about the jury's thought process. Defendant repeatedly argues that the People cannot speculate into the jury thought process, but defendant wants this Court to reject the jury's actual conclusion as shown in the foreperson's statement, and substitute a surmise that the jury's verdict is somehow infirm. Defendant's in his brief (at 23) misconstrues the People's argument regarding the third count of the indictment. By finding defendant guilty of the third count of the indictment, 7 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 repugnant for the jury to find that defendant possessed the gun at the time of this incident and used it unlawfully against the victim, and also to find defendant not guilty of killing the victim. Lastly, defendant in his brief (at 23-26) argues that the TuckerlMuhammad rule presents good public policy, and that this Court should continue to apply that rule. Defendant suggests that the repugnancy rule was adopted by this Court "out of concern that defendants not be convicted for a crime on which the jury has actually found that they did not commit an essential element," and suggests that trial court's failure to ask the jury to reconsider the verdict "should not be used to punished [defendant]" (defendant's brief at 23 and 26). But, in this case, defendant seeks the benefit of an application of the repugnancy rule in order to vacate a homicide conviction that is supported by overwhelming evidence. This case does not present a risk of a wrongful conviction. There is a risk, however, of allowing a killer to go free through an application (or, in light of the jury instructions, a misapplication) of this Court rule. The People ask this Court to find that the jury reached a proper verdict under an application of this Court's Tucker/Muhammad rule. Additionally, this case illustrates that this Court should abandon or modify its repugnancy rule. This Court should reinstate defendant's conviction for manslaughter in the first degree as a hate crime. 8 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: April 2, 2014 9 Respectfully submitted, WILLIAM J. FITZPATRICK, ESQ. Onon aga Co~ty pistrict Attorney By: ' "<,,/7 • , )1/1:? ~re;2J? James P. Maxwell Chief Assistant District Attorney Attorney for Appellant Criminal Courthouse 505 South State Street, 4th Floor Syracuse, NY 13202 Tel: (315) 435-2470