The People, Appellant,v.Dwight R. DeLee, Respondent.BriefN.Y.October 15, 2014ORIGINAL TO BE ARGUED BY: PIDLIP ROTHSCIDLD, ESQ. ATTORNEY FOR APPELLANT TIME REQUESTED: 15 MINUTES COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs DWIGHT R. DELEE, Respondent. RESPONDENT'S BRIEF DATE COMPLETED: March 12,2014 PHILIP ROTHSCHILD, ESQ. Attorney for Respondent Hiscock Legal Aid Society 351 South Warren Street Syracuse, New York 13202 Tel: (315) 218-0179 Fax: (315) 422-5296 -, TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................ i TABLE OF AUTHORlTIES ......................................................................... .ii QUESTION PRESENTED ............................................................................ 1 PRELIMINARY STATEMENT ..................................................................... 2 STATEMENT OF FACTS ............................................................................. 4 POINT I: THE APPELLATE DIVISION CORRECTLY REVERSED MR. DELEE'S CONVICTION FOR MANSLAUGHTER IN THE FIRST DEGREE AS AHA TE CRJME, AS IT WAS LEGALLY REPUGNANT TO HIS ACQUITTAL FOR MANSLAUGHTER IN THE FIRST DEGREE ............................................ 7 A. INTRODUCTION ............................................................................ 7 B. THE PEOPLE'S CONTENTIONS ARE NOT PRESERVED FOR THIS COURT'S REVIEW ........................................................ 1 0 C. LEGAL REPUGNANCY'S DEFINITION AND HISTORY .................. 1 0 D. THE TEST FOR TRUE REPUGNANCY .......................................... 15 E. THE APPELLATE DIVISION CORRECTLY REVERSED THE CONVICTION .................................................................................. 18 F. THE DISSENT'S CONCLUSION IS NOT SUPPORTED BY THE LAW OR PUBLIC POLICY ....................................................... 20 G. THE PEOPLE'S ARGUMENTS ARE NOT SUPPORTED BY THELAW ........................................................................................ 22 H. THE TUCKER/MUHAMMAD RULE REPRESENTS GOOD PUBLIC POLICY ............................................................................... 24 I. CONCLUSION ............................................................................... 26 CONCLUSION ......................................................................................... 27 TABLE OF AUTHORITIES Cases Brown v State, 959 So 2d 218 [Florida 2007] ................................................... 11, 14 Dunn v United States, 284 US 390 [1932] .............................................................. 13 Matter of Suarez v Byrne, 10 NY3d 523 [2008] ............................................... 21, 23 People v Abraham, 22 NY3d 140 [2013] ................................................................ 10 People v Bullis, 30 AD2d 470 [4th Dept 1968]. ..................................................... 15 People v Carbonell, 40 NY2d 948 [1976] ........................................................ 15, 22 People v Carter, 7 NY3d 875 [2006] ...................................................................... 26 People v DeLee, 108 AD 3d 1145 [4th Dept 20 13] ................................................... 3 People v Goodfriend, 64 NY2d 695 [1984] ...................................................... 11, 17 People v Gray, 86 NY2d 10 [1995] ........................................................................ 10 People v Hunter, 17 NY3d 725 [2011] ................................................................... 10 People v Klingenberg, 172 Ill2d 270, 665 NE2d 1370 [1996] ............. 11, 12, 15,24 People v Morris, 21 NY3d 588 [2013] ....................................................................... 20 PeoplevMuhammad, 17NY3d532 [2011] .............................. 11, 13,15,20,24-26 PeoplevRosario, 17NY3d501 [2011] .................................................................. 10 People v Tucker, 55 NY2d 1 [1981]. .......................................... 11, 15, 16, 17, 19-24 Price v State, 405 Md 10, 949 A2d 619 [2008] ...................................................... 14 State v Halstead, 791 NW2d 805 [Iowa 201 OJ ....................................................... 11 United States v Powell, 469 US 57 [1984] .................................................. 13, 14, 20 Statutes CPL 300.30(5) ................................................................................................. 21,23 CPL 310.50(2) ................................................................................................. 20,26 CPL 470.05 (2) ....................................................................................................... 10 Treatises Bickel, Judge and Jury- Inconsistent Verdicts in the Federal Courts, 63 Harv L Rev 649 [1950] ...................................................................................... 24 New York Court of Appeals Modifies Doctrine of Inconsistent Verdicts, 11 NY Crim L Newsletter 2 [Spring 2013]. .................................................... 12, 25 Websters, New World Dictionary (1979) ............................................................... 11 Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24NYLSchLRev713 [1979] ...................................................... 10, 14, 16,17,25 ii QUESTION PRESENTED 1) Whether the Appellate Division correctly reversed Mr. DeLee's conviction for manslaughter in the first degree as a hate crime, as it was legally repugnant to his acquittal for manslaughter in the first degree? The trial court, without objection, charged the jury that manslaughter in the first degree as a hate crime and manslaughter in the first degree were to be considered separately. The court, using identical language, defined manslaughter in the first degree as an essential element to be proven to establish manslaughter in the first degree as a hate crime (R. 1247, 1253). The trial court summarily denied defense counsel's legal inconsistency challenge made prior to the jury's discharge (R. 1298). The Fourth Department, by a four to one majority, reversed that conviction, finding the verdict legally repugnant under the Tucker/lvfuhammad test. PRELIMINARY STATEMENT On September 25, 2008, the Onondaga County Grand Jury returned a three count indictment charging Dwight R. DeLee, the Respondent herein, 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. Those charges arose out of an incident that occurred on November 14, 2008 in the city of Syracuse (R. 26). Mr. DeLee was tried in Onondaga County Court in June of2009 and was acquitted of murder in the second degree as a hate crime, murder in the second degree, and the lesser included offenses of manslaughter in the first and second degrees. The jury found Mr. DeLee guilty of manslaughter in the first degree as a hate crime (as a lesser included offense of murder in the second degree as a hate crime) and criminal possession of a weapon in the third degree (R. 1291-1292). The trial court denied defense counsel's challenge to the verdict as repugnant that was made prior to jury discharge (R. 1294-1296), and defense counsel's subsequent CPL 330 motion (R. 1311 ). Mr. DeLee was sentenced on August 18, 2009 as a predicate felon to an aggregate term of 25 years in prison with 5 years of post-release supervision and a concurrent sentence of 3 Yz to 7 years in prison for criminal possession of a weapon in the third degree (R. 1316). 2 The Appellate Division, Fourth Department, modified the trial court's ruling by reversing the conviction for manslaughter in the first degree as a hate crime, finding it inconsistent with and legally repugnant to the jury's acquittal for manslaughter in the first degree (R. 4-7; People v DeLee, 108 AD 3d 1145 [4th Dept 2013]). Justice Erin M. Peradotto dissented (R. 7-12) and granted the People pennission 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 14, 2013, that this appeal would be reviewed pursuant to 22 NYCRR 500.11. After receipt of letter briefs from the parties and amici curiae, this Court directed on December 6, 2013, that such review be terminated and this appeal proceed in the normal course of briefing and argument. Appellant's brief was filed and served on or about January 27, 2013, and amici curiae have not filed a separate brief but have asked this Court to consider their prior submission made under 22 NYCRR 500.11. This brief is submitted in opposition. 3 STATEMENT OF FACTS On November 14, 2008, there was a social gathering at 411 Seymour Street in the City of Syracuse. The house was a duplex. David Junious (a/lda Doughboy), and Carlisha Junious lived upstairs with their family and Erica Allison lived downstairs with her children and boyfriend Nico Lemon. Also present were Lynn Lemon (Nico's mom) and Alyssa Davis (Erica's friend). Later that afternoon Johnny Gaston arrived in his Chevy Venture Van with his sister Jasmine Gaston (a/lda Nicole) and her boyfriend Dwight R. DeLee (the Respondent herein) (R. 892). There was heavy drinking going on before and at the party (R. 765, 791, 896, 1020, 1042, 1052, 1 067). There were, all in all, about fifteen people in the area, most of them teenagers (R. 764). After 8 p.m. Mark Cannon drove up to the house in his father's Pontiac. His younger brother Moses Cannon (the decedent herein a/lda Lateisha Green) was in the front passenger seat and their friend Daquon Shawndell Hopper (a/lda Star) was in the back seat (R. 736). All three were homosexuals (R. 758). Star and decedent often dressed in women's clothes (R. 737). That night, however, decedent wore jeans, a tee shirt, a leather jacket and Timberland boots, and the bra and panties he had on underneath were not visible (R. 760-762). The car was parked with the driver side facing the curb, and everyone stayed in the car the whole time while Erica and Alyssa came up to the car to talk (R. 738). 4 Doughboy and Nico loudly commented from the porch that they did not like "faggots" and discussed getting a gun from Nico's closet (R. 794). A black male went into the house and came out wearing a dark hooded sweatshirt covering his face and carrying a long, wide brown-backed gun by his side (R. 796). He walked directly over to the car, set the gun on the car window and shot it. After that, the car suddenly pulled out and everyone started screaming (R. 798). Mark Cannon said Mr. DeLee was the shooter (R. 739), as did Carlisha Junious (R. 1099), while Alyssa Davis only said the shooter had Mr. DeLee's voice and skin tone (R. 1121 ). Nico came into the house with the gun and gave it to Doughboy who took it upstairs to hide (R. 807). Police later found the gun underneath a mattress (R. 942). Mr. DeLee went to work later that evening and spent the weekend with his girlfriend Jasmine at her cousin's apartment in Clay (R. 1107, 1111). The next clay police stormed into the apartment at 1 a.m. with guns drawn and took Mr. DeLee out of his bed to CID for interrogation (R. 930). After ostensibly waiving his rights, he repeatedly denied participating in the crime (R. 1000). He repeatedly fell asleep during questioning (R. 1007-1 008), and said that he was not going to tell on himself no matter how many cops he spoke to, and would put his faith in God even though he could not beat the case (R. 1001). He was allowed to sleep upright in the hard chair for about two hours (R. 1137). 5 When police woke Mr. DeLee they told him that he did not mean for it to happen, and he repeated verbatim that he did not mean for it to happen. Mr. DeLee specifically denied hating homosexuals and police interpreted his repeated statements that "it's over" to mean his life was over, and not as a request for questioning to cease. Nevertheless police did stop the interview and arrested Mr. DeLee (R. 1137-1138). 6 POINT I THE APPELLATE DIVISION CORRECTLY REVERSED MR. DELEE'S CONVICTION FOR MANSLAUGHTER IN THE FIRST DEGREE AS A HATE CRIME, AS IT WAS LEGALLY REPUGNANT TO IDS ACQUITTAL FOR MANSLAUGHTER IN THE FIRST DEGREE. A. INTRODUCTION The trial court charged murder in the second degree as a hate crime and murder in the second degree as separate counts and under separate tracks: On one track was murder in the second as a hate crime with the lesser included offenses of manslaughter in the first and second degree as hate crimes. On the second track was murder in the second degree with the lesser included offenses of manslaughter in the first and second degree. The lower court made it clear that murder in the second degree was not an alternative or lesser included offense of murder in the second degree as a hate crime, as the panel was told to consider murder in the second degree "irrespective" of its verdict on the hate crime offenses (R. 1252). In contrast, manslaughter in the first degree as a hate crime could be considered only if the jury acquitted Mr. DeLee of the greater offense of murder in the second degree as a hate crime. If guilt was found on the greater offense the panel had to skip the remaining charges and consider murder in the second degree (R. 1249-1250). Manslaughter in the first and second degrees were similarly charged as lesser included offenses of murder in the second degree (R. 1253-1254), 7 to be considered only if the jury acquitted on the greater charge. If guilt were found on the greater they were to go on to consider the count of criminal possession of a weapon in the third degree (R. 1256-1257). The jury was instructed that, "Under our law, a person is guilty of manslaughter in the first degree, as a hate crime, when that person commits manslaughter in the first degree, and intentionally selects the person against whom the offense is committed, or intended to be committed, in whole or in substantial part, because of a belief or a perception regarding the sexual orientation of a person, again, regardless of whether the perception or belief is correct." (R. 1247 [emphasis supplied]). The trial court charged that, "Under our law a person is guilty of manslaughter in the first degree, when with the intent to cause serious physical injury to another person, he causes the death of such person or a third person." (R. 1247). The same language was used to define manslaughter in the first degree as an element of the hate crime (R. 1250), as a separate offense (R. 1253), and in response to a jury note asking for a definition ofthe charges (R. 1281). The lower court made it clear that the crimes were identical, with the hate crime requiring the additional element that the defendant intentionally selected the victim against whom the offense is committed, or intended to be committed in whole or in substantial part because of a belief or a perception regarding the victim's sexual orientation 8 (R. 1279-1280). There were no objections to the lower court's charge (R. 1269, 1285). The jury found Mr. DeLee guilty of manslaughter in the first degree as a hate crime and criminal possession of a weapon in the third degree, but acquitted him of all other counts, including manslaughter in the first degree (R. 1295-1296). Defense counsel challenged the verdict before the jury was discharged, noting the conviction of manslaughter in the first degree as a hate crime was inconsistent with the not guilty verdict on the charge of manslaughter in the first degree. The trial court discharged the jury without ruling on that motion (R 1298-1300). Defense counsel subsequently brought a CPL 330.30 (1) motion to set aside the verdict based on repugnancy (R. 298-302), and the People's response included an affidavit from the foreperson explaining that, because guilt had already been found on the hate crime, a guilty verdict on the non-hate crimes would have been "overkill" (R. 312). The trial court denied the CPL 330.30 (1) motion and sentenced Mr. DeLee (R. 1316) . The Appellate Division, Fourth Department, by a 4-1 majority modified the judgment by reversing Mr. Delee's conviction for manslaughter in the first degree as a hate crime, finding it legally repugnant to the acquittal for manslaughter in the first degree (R. 4-7). Justice Erin M. Peradotto dissented and granted leave to appeal to this Court. Mr. DeLee submits that the verdict was legally repugnant and 9 the Fourth Department's determination should be affinned as a proper application of the law. B. THE PEOPLE'S CONTENTIONS ARE NOT PRESERVED FOR THIS COURT'S REVIEW The People are required, just like the defense, to timely object in order to preserve an issue for appellate review (see People v Hunter, 17 NY3d 725, 727 [2011]). Their present claims that the jury instructions could have reasonably been understood as an invitation to choose between the hate crime and non-hate crime, and/or that it was the result of mistake, compromise or mercy were not raised until well after the jury had been discharged. Given such untimely notice the trial court had no opportunity to correct its error (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20 [1995]). In that regard the post-verdict affidavit submitted by the jury foreperson was not only immaterial but untimely as well. Similarly unpreserved is the People's claim, raised for the first time in this Court, that the Tucker/Muhammad rule against repugnancy should be abandoned (see People v Rosario, 17 NY3d 501,515 [2011]). C. LEGAL REPUGNANCY DEFINED While the tenus repugnancy and inconsistency are used interchangeably, factual inconsistency and legal inconsistency are analytically distinct (People v Abraham, 22 NY3d 140, 146 [2013]). Only the latter warrants reversal as a matter of law, and the focus is on whether the defendant's acquittal on one or more counts 10 necessarily negates an essential element of another count of which the defendant was convicted (see People v Goodfriend, 64 NY2d 695, 697 [1984]). Legally repugnant verdicts are prohibited in New York (People v Tucker, 55 NY2d 1, 6 [1981]; see Steven T. Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 NY L Sch L Rev 713, 732 [1979])(hereinafter "Wax"). Other states, using different nomenclature, have reached the same conclusion1• This Court's critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant2 to it (Tucker, 55 NY2d at 6). This Court recently reiterated that holding in People v Muhammad (17 NY2d 532,539 [2011]). The Illinois Supreme Court prohibits such legally inconsistent verdicts based on simple common sense and sound logic: "Legally inconsistent verdicts cannot stand because they are umeliable. At a minimum, such verdicts suggest 1 People v Klingenberg, 172 Il12d 270,274,665 NE2d 1370 (1996) (Special scrutiny is required where proof that the defendant committed one offense [i.e., predicate offense] is an essential element of another offense [i.e., compound offense]; State v Halstead, 791 NW2d 805 (Iowa 201 0) (conviction of a defendant of a compound crime when he or she is acquitted on all predicate offenses is said to be "legally inconsistent"); Brown v State, 959 So 2d 218 (Florida 2007) (This exception [to generally allowing inconsistent verdicts] comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent). 2 In addition to inconsistent and opposed, the dictionary also defines repugnant as distasteful or offensive (Webster's New World [1979]). 11 confusion or misunderstanding on the part of the jury. Legally inconsistent verdicts are particularly unreliable in cases such as this, where the jury acquits a defendant of a predicate offense and convicts of the compound offense. In such a case, the former verdict necessarily suggests that the evidence failed to establish an essential element of the compound offense. At the very least, the inconsistency constitutes evidence of arbitrariness that undermines confidence in the quality of the jury's conclusion. We can have no confidence in a judgment convicting the defendant of one crime when the jury, by its acquittal on another crime, has rejected an essential element needed to support the conviction." (Klingenberg, 172 Ill2d at 281-282). The People cite to a recent article3, in support oftheiF recent and unpreserved contention that the Tucker!Muhammad rule should be abandoned, as "the inconsistent verdict doctrine in New York is moribund, if not dead" and that "the (almost) death of the inconsistent verdict doctrine in New York should not be greatly mourned" (People's Brief at 23). However, even the authors of that article qualify their claim: "There is one caveat: a case like Powell would still come out differently in New York than in federal court. Compound felonies (using a telephone in course of cocaine conspiracy) and the predicate offense (cocaine conspiracy) stand in a greater/lesser offense relationship, and an acquittal on the greater is logically inconsistent with a conviction on the lesser (sic). 4 In such circumstances, even the most imaginative judge could 3 Paul Schechtman and Megan Quattlebaum, New York Court of Appeals Modifies Doctrine of Inconsistent Verdicts, I I New York Criminal Law Newsletter 2 [Spring 20 13]. 4 This is an apparent typographical error. 12 not conjure up a hypothetical in which the counts are reconcilable ... Of course, cases in which the jury convicts on the greater and acquits on the lesser should be rare." (New York Court of Appeals Modifies Doctrine of Inconsistent Verdicts at 13). The present case involves conviction on a compound crime (manslaughter in the first degree as a hate crime) and acquittal on a predicate crime (manslaughter in the first degree). That alone demonstrates that legal repugnancy, though arguably rare, still exists and the rule prohibiting such verdicts is necessary for the proper implementation of justice, as this Court recently reiterated in Muhammad (17 NY3d at 539). In contrast to New York, the United States Supreme Court has held that the Federal Constitution does not prohibit a jury from rendering a verdict that is inherently inconsistent, and has refused to address it under its supervisory powers (United States v Powell, 469 US 57, 63 [1984], citing Dunn v United States, 284 us 390 [1932]). The Supreme Court's rationale for denying relief can be summarized as follows: (1) it is equally possible that the jury was convinced of guilt on the greater offense and acquitted on the lesser due to mistake, compromise or lenity. Given that fact, it would be improper to reverse because double jeopardy precludes only the government's appeal; (2) assessments of the reason for the inconsistency would be either based on pure speculation or would require improper invasion into the 13 jury's deliberative process; and (3) criminal defendants already have sufficient protection against jury irrationality or error by independent review of the sufficiency of the evidence by trial and appellate courts (Powell, 469 US at 65-67). Various authorities have condemned such reasoning.5 Wax, repeatedly cited to by this Court in Tucker in formulating the proper test for legal repugnancy, attacks the first prong (equal possibility and double jeopardy) by noting, "The assumption by the proponents of the Dunn position that most inconsistent verdicts are benign acts on the jury's part is just that- an assumption. It has never been tested. Reliance on such an assumption is a serious breach of the systematic protections designed to ensure a sound basis for conviction of criminal defendants." (Wax at 739). The Illinois Supreme Court also attacked the Dunn/Powell rationale, pointing to the fact that juror lenity was far more explicable when there is acquittal on the greater offense and conviction on the lesser, and not vice-versa. It rejected the idea that no action need be taken because it was unclear whose "ox had been 5 Brown v State, 959 So2d 218 (2007) (We do not permit truly inconsistent verdicts "because the possibility of a wrongful conviction in such cases outweighs the rationale for allowing verdicts to stand"); Price v State, 405 Md 10,949 A2d 619 (2008) (Inconsistent verdicts in civil jury trials are not tolerated and criminal defendants should not have less protection that civil litigants, as their liberty or even life is at stake). 14 gored" and that double jeopardy unfairly prejudiced the prosecution. Symmetry between the defense and the prosecution was not the aim of the framers of the double jeopardy clause, and the Illinois Supreme Court refused to disregard the risk of unfair conviction and permit legally inconsistent verdicts as a means of achieving "folic justice" (Klingenberg, 172 Ill2d at 278). The third prong of the Dunn/Powell rationale is that repugnancy is unnecessary because defendants have other means of protection, like weight of the evidence review. This Court has found such assurances insufficient in light of the real risk of wrongful conviction where the jury has already found that one of the elements has not been proven beyond a reasonable doubt (Tucker 55 NY2d at 6; Muhammad, 17 NY3d at 539). The remaining rationale under Dunn/Powell for denying repugnancy is the fear that courts would improperly speculate into or invade the fact-finding province of the jury. While that remains a concern, this Court has conclusively addressed it by establishing the proper test, as demonstrated below. D. THE TEST FOR TRUE REPUGNANCY New York has declined to follow the Supreme Court's blanket allowance of repugnancy for over forty-five years6. In People v Carbonell ( 40 NY2d 948 [1976]) the defendant was charged with stealing fifty dollars from the person of his 6 People v Bullis, 30 AD2d 470 (4th Dept 1968). 15 victim and was indicted on various counts of robbery and larceny, but the jury was not clearly instructed to consider the lesser charges in the alternative. This Court reversed the verdict finding defendant guilty of robbery but not the lesser offense of larceny as "self-contradictory" without defining what that term meant. In Tucker this Court, utilizing Wax, decided to address the lack of detailed analysis and proper methodology in determining legal repugnancy. It observed that there were two approaches for determining whether jury verdicts are repugnant. Under the first the court reviews the record in toto to discover the underlying basis of the jury's determination to determine its logic. Such a procedure invites improper speculation and improper inquiry into the jury's fact-finding province, which was precisely the danger warned of in Dunn/Powell. Opting to utilize a more limited approach, this Court held that an alternative discrete analysis was required. "Thus, the record should be reviewed only as to the jury charge. Even that review of the jury charge will be restricted in its scope. It does not contemplate a consideration of the accuracy of the charge."7 (Tucker, 55 NY2d at 7-8, citing Wax at 740-741). The instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict (Tucker at 7-8). The focus is on whether the defendant's acquittal on one or more 7 The sole exception would be if a party had timely objected to the court's charge (Wax at 740- 741). In the present case there were no objections or exceptions to the charge. 16 counts necessarily negated an essential element of another count of which the defendant was convicted (Goodfriend, 64 NY2d at 697). Under Tucker the determinant is legal rather than factual inconsistency and there is no distinction between inconsistencies on the counts in the indictment and those on lesser included offenses added by the court. The court's charge to the jury plays a major role in the analysis and the law/fact distinction accords considerable sanctity to jury verdicts. Avoiding factual analysis prevents improper speculation into juror understanding, motives and intent. Courts intervene only when a jury ignores the statutory language and sets statutory elements in irreconcilable juxtaposition (see Tucker at 7; Wax at 740-741). The theoretical test ensures that there is not improper speculation or invasion of the jury's fact-finding province, as the reviewing court may only look at the crimes as charged to the jury to ascertain the essential elements and determine legal repugnancy. Convictions will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element ofthe other crime, as charged, for which the guilty verdict was rendered. Merely illogical verdicts would be allowed to stand (see Tucker at 7; Wax at 740- 742). Applying the Tucker/Muhammad rule in the present case, the acquittal on the manslaughter in the first degree was legally repugnant to, and not just illogical 17 or inconsistent with the conviction for manslaughter in the first degree as a hate cnme. The trial court used identical language to define manslaughter in the first degree as an independent crime and as an element of manslaughter in the first degree as a hate crime, and it was clearly a necessary element of the hate crime and an independent crime. The panel was told, without objection, that they had to consider both counts separately and independently. Given the 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. E. THE APPELLATE DIVISION CORRECTLY REVERSED THE CONVICTION The Fourth Department majority held that the trial court's verdict was inherently inconsistent. All of the elements of manslaughter in the first degree were elements of manslaughter in the first degree as a hate crime, and the jury was properly told that the only difference was that the latter had an added element requiring the People to prove that defendant intentionally selected the victim due to his sexual orientation. Acquittal on the manslaughter in the first degree meant that the jury necessarily found that the People failed to prove beyond a reasonable doubt at least one element of manslaughter in the first degree (R. 5). The People did not even dispute that the verdict was inconsistent based upon the elements as charged to the jury. The majority discounted the prosecution's 18 claim that the inconsistent verdict should be allowed to stand as the jury's reasonable interpretation that the instructions gave them a "choice" of convicting defendant of manslaughter in the first degree as a hate crime or manslaughter in the first degree. It rejected that position because: (a) the jury foreperson's affidavit never claimed such an interpretation8; (b) there was no evidence in the record to support such a theory, and, most importantly; (c) courts may look at the record only to review the jury charge so as to ascertain what essential elements were described by the trial court (R. 6). Contrary to the dissent, the majority found that the "plain" manslaughter did not need to be charged as a lesser included of the hate crime manslaughter. Both were class B felonies9 and the charge given to the panel was not improper as it did not necessitate an inconsistent verdict. Even if it were a lesser, the verdict was still inconsistent as the jury necessarily decided that one of the essential elements of manslaughter in the first degree was not proven beyond a reasonable doubt (R. 6). The majority below also pointed out that, while jurors may have believed that they were complying with the letter and spirit of the law, it was the trial court's job to properly instruct them. Defense counsel's timely objection to the s Such affidavits, by definition, present a clear invasion of the jury's fact-finding domain and may not even be considered in determining legal repugnancy (Tucker, 55 NYZd at 7). 9 The dissent never cited to any authority for its determination that manslaughter in the first degree was a lesser included offense. The People never objected to the charge and do not seem to claim in their brief that it was a lesser offense or should have been charged as such. 19 verdict as inconsistent made it incumbent upon the lower court to inform the panel of the inconsistency and direct them to resume deliberations to render a proper verdict (see CPL 310.50 [2]). Failure to do so constituted reversible error. In sum, the majority decision below was based upon sound and logical precedent. E. THE DISSENT'S CONCLUSION IS NOT SUPPORTED BY THE LAW OR POLICY With all due respect, the dissent's conclusion that the jury's verdict was "logical and reasonable" does not stand up to close scrutiny. First, as noted above, "plain" manslaughter was not a lesser included offense and did not need to be charged as such. Even if it were, repugnancy is reviewed upon the crimes as charged, regardless of the accuracy of that charge (Muhammad, 17 NY3d at 539). Given the state's lack of objection to the charge at trial and the People's decision not to raise it in their brief, this claim appears abandoned and not preserved. Second, it was far from "entirely reasonable" for the jury to find that guilt on the manslaughter as a hate crime allowed a not guilty verdict on the non-hate crime manslaughter (R. 11). The panel was specifically told to consider the non-hate crimes irrespective of their verdict on the hate crimes (R. 1252), and jurors are presumed to follow the court's instructions (People v Morris, 21 NY3d 588, 598 [2013]). Any interpretation to the contrary is based upon improper speculation (Tucker, 55 NY2d at 8; Powell, 469 US at 66). 20 Third, the charge did not mandate an inconsistent verdict (Tucker at 8). This case did not involve two mutually exclusive culpable mental states, like depraved indifference and intentional murder which must be submitted in the alternative (see Matter of Suarez v Byrne, I 0 NY3d 523, 534 [2008]). The jury was told without objection that the charges were identical, with the hate crimes requiring the additional element that defendant intentionally selected the victim based upon his sexual orientation (R. 1279-1280). The panel could have convicted or acquitted on either, and there was no showing that a finding of guilt on one necessarily negated guilt on the other (see CPL 300.30 [5]). Fourth, the dissent's reliance upon the affidavit of the jury foreperson was entirely improper. It was not dispositive, as she was but one of twelve jurors. More importantly, it was absolutely irrelevant. Under Tucker and Muhammad the court's analysis is limited solely to the crimes as charged, precisely to avoid improper invasion into the jury's fact finding province. The one juror's view that conviction on the plain manslaughter was "overkill" represents mistake or the possibility of lenity. Neither can make illogical verdicts legally repugnant, nor unambiguously legally repugnant verdicts somehow acceptable. Fifth, the fact that this involved a hate crime was not determinative or even relevant to the analysis. Other crimes, like robbery are also heinous and society has a desire to see that they do not recur. Society also has an overriding interest in 21 ensuring that each element of the crime is proven beyond a reasonable doubt. That cannot be the case when a jury convicts on the robbery while simultaneously acquitting on larceny, which also constitutes an essential element of the robbery (see Carbonell, 40 NY2d at 948). F. APPELLANT'S ARGUMENTS ARE NOT SUPPORTED BY THE LAW The People largely follow the dissent's rationale in their brief, with one caveat. Instead of insisting that the plain manslaughter was or should have been charged as a lesser included offense of manslaughter as a hate crime, they claim that the charge was "confusing and inaccurate" (People's Brief at 14). The People also registered no objection whatsoever to the charge when it was given. Those combined facts indicate that they have now abandoned any claim that the manslaughter in the first degree should have been charged as lesser. The People instead argue that the verdicts were not inconsistent because the jury found that it was a hate crime and reasonably concluded that this negated a finding that it was a non-hate crime (People's Brief at 14). Aside from being unpreserved (Point I [B], supra), this argument is wholly without merit. First, as noted above, the crimes were charged separately and the panel was specifically instructed that they had to consider the non-hate crimes of murder and manslaughter irrespective of their verdicts on the hate crimes (R. 1252). 22 Second, the charges were identical with manslaughter first as a hate crime only requiring the extra element that Mr. DeLee selected decedent based upon his perception of sexual orientation. This additional element was not mutually exclusive with the intent on the "plain" manslaughter as charged (contrast Suarez, 10 NY3d at 523; CPL 300.30 [5]), and did not require an inconsistent verdict (Tucker, 55 NY2d at 8). Similarly unpersuasive is the People's claim that the jury's finding of guilt on the criminal possession of a weapon in the third degree somehow showed the consistency ofthe other verdicts (People's Brief at 15). The crimes had differing elements, as possession of a weapon is not even required for manslaughter, and acquittal was theoretically possible (see Muhammad, 19 NY3d at 542 [the jury could have concluded that no gun was used at all]). Third, what happened during deliberations does not support the People's claim. It is not clear that the panel "must have" concluded that defendant committed the homicide only as a hate crime. Nor was it "logical" that they concluded they had no reason to deliberate, or the instructions had "some other meaning" (People's Brief at 18-19). More importantly, such claims smack of the improper speculation into the jury's thought processes warned of in Dunn and Powell that this Court intended to avoid (Tucker, 55 NY2d at 7). Similarly improper are references to the jury foreperson' s affidavit (People's Brief at 21 ). 23 G. THE TUCKER/MUHAMMAD RULE PRESENTS GOOD PUBLIC POLICY The People, unhappy with the verdict, assert for the first time to this Court that the legal repugnancy rule adopted by this Court should be abandoned (People's Brief at 22-23). Aside from being unpreserved, this claim is without merit. This Court adopted the rule 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. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant or offensive to it (Tucker, 55 NY2d at 6; Muhammad, 17 NY2d at 539). Legally inconsistent verdicts cannot stand because they are unreliable and suggest at least confusion or misunderstanding by the jury. Acquittal here on the predicate offense of manslaughter in the first degree necessarily suggests that the evidence failed to establish an essential element of the compound offense of manslaughter in the first degree as a hate crime. At a minimum the inconsistency constitutes evidence of arbitrariness that undermines confidence in the quality of the jury's conclusion (see Klingenberg, 172 Ill2d at 281-282). One has a right to a jury verdict based upon proof beyond a reasonable doubt, and legally inconsistent verdicts strike at the very heart of that concept. A jury is free to make mistakes or extend mercy (see Bickel, Judge and Jury- 24 Inconsistent Verdicts in the Federal Courts, 63 Harv L Rev 649, 651-652 [1950]). That does not mean that patently inconsistent verdicts should be ignored or assumed to be benign acts. Such an assumption is unproven and a serious breach of the systematic protections designed to ensure a sound basis for conviction of criminal defendants (Wax at 739). The legal repugnancy test, adopted by this Court in Tucker and reaffirmed in Muhammad, looks only to the crimes as charged, isolating true repugnancy without improperly speculating about or invading the jury's fact-finding province. Even the recent study cited by Appellant (People's Brief at 23) admits that legal repugnancy is still applicable in cases like the one at bar (11 New York Criminal Law Newsletter at 13). Aside from calling for the outright abandonment of repugnancy, the People's arguments run afoul of the applicable true repugnancy test, as they include improper speculation and invasion into the jury's fact-finding process. The People have presented no viable rationale for abandoning the theoretical impossibility test other than the fact that they do not like the results in this case. The Tucker/Muhammad rule normally helps the prosecution, and not the defense, as any possible theory of legal consistency between the crimes as charged precludes a finding of repugnancy (Muhammad, 17 NY3d at 539). Given the jury instructions here, there was no possible legal theory to reconcile the two verdicts. 25 The rule is relatively straightforward and easy to apply, without analysis ofthe facts or speculation into the jury's mindset as the People seek to do in this case. Jurors are not expected to know the law, and if they make a mistake the trial court's remedy is also straightforward and easy to apply. Where there is a motion challenging the verdict as inconsistent prior to the jury being discharged (People v Carter, 7 NY3d 875, 876 [2006]), the trial court must act under CPL 310.50 (2). At bar, when defense counsel so moved, the trial court should not have discharged the panel (R. 1298), but should have explained the inconsistency and directed them to reconsider their verdict (Muhammad, 17 NY3d at 541). The trial court's failure to do so should not be used to punish Mr. DeLee. H. CONCLUSION Given the court's charge, acquittal on the manslaughter in the first degree was legally repugnant to the conviction on manslaughter in the first degree as a hate crime. Defense counsel preserved the issue for appeal by moving, prior to the jury's discharge, to set it aside as inconsistent. The trial court erred under CPL 310.50 (2) by not explaining the defect to the panel and directing them to reconsider and resume deliberations to return a proper verdict. The Appellate Division majority's decision was correct, both on the law and policy, and should be affirmed by this Court. 26 CONCLUSION For the reasons set out in Point I, the decision of the Appellate Division, Fourth Department was correct in all respects and should be affirmed. Dated: March 12, 2014 Respectfully submitted, Supervising Attorney- Appeals Program Hiscock Legal Aid Society 3 51 South Warren Street Syracuse, New York 13202 27 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, AFFIRMATION OF SERVICE Plaintiffs-Appellant, -vs- DWIGHT DELEE, Defendant-Respondent. Philip Rothschild, an attorney admitted to practice in the State of New York, affirms under penalty of perjury pursuant to CPLR 2106 that he is not a party to this action, and is a Supervising Attorney at Hiscock Legal Aid, with a business address of 351 South Warren Street, Syracuse, New York 14424. That on the 141h day of March, 2014, your affirmant served three copies of the Respondent's Brief upon the parties and/or their attorneys by depositing a true copy thereof enclosed in a post-paid wrapper under the care and custody of United States Postal Service, addressed to each at the following location: James Maxwell , Esq., Supervising ADA Onondaga County District Attorney's Office 505 South State Street Syracuse, New York 13202-2130 Affirmed March 14, 2014. £L.H~P Philip Rothschild, Esq.