People v. Allen

2017 NY Slip Op 5501, 152 A.D.3d 401, 59 N.Y.S.3d 14

Opinions

Judgment, Supreme Court, Bronx County (Peter J. Benitez and Efrain Alvarado, JJ., at grand jury-related applications; Ralph Fabrizio, J., at jury trial and sentencing), rendered January 10, 2014, convicting defendant Allen of manslaughter in the first degree, and sentencing him to a term of 25 years, reversed, on the law, and the matter remanded for a new trial. Judgment (same court and Justices), rendered January 17, 2014, convicting defendant Burgan of manslaughter in the first degree and sentencing him to a term of 20 years, unanimously affirmed.

Both verdicts were supported by legally sufficient evidence, and were not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Initially, we find no basis for disturbing the jury’s credibility determinations, and we find that the accomplice corroboration requirement set forth in CPL 60.22 (1) was amply satisfied. The evidence, viewed in totality, supports the conclusion that both defendants intentionally aided the commission of the homicide and shared a community of purpose with the persons who actually shot the victim (see generally Penal Law § 20.00; People v Scott, 25 NY3d 1107 [2015]). In addition to evidence about events leading up to the incident, there was testimony that immediately before the homicide, there was a conversation among the par ticipants in which one of the gunmen specifically referred to a plan to “hit” or “kill” the victim and other persons who might be accompanying him. The evidence also demonstrated that Burgan intentionally participated in the crime by remaining nearby with a drawn, loaded pistol, even though others did all the firing, and that Allen intentionally participated by acting as a driver and by pointing out the victim.

The People re-presented, or commenced a re-presentation, of defendants’ cases to the grand jury without first obtaining leave from the court, in violation of CPL 190.75 (3) (see People v Credle, 17 NY3d 556 [2011]; People v Wilkins, 68 NY2d 269, 274-276 [1986]).

As to Burgan, the defect was cured when, although the representation was in progress, the People sought and obtained leave, at a time when the safeguards of CPL 190.75 (3) could still be implemented, and Burgan was not prejudiced (see Wilkins at 277).

The circumstances are different as to Allen, since the presence of the unlawful murder charge “loomfed]” over the trial and influenced the verdict (see People v Mayo, 48 NY2d 245, 251 [1979]). We accordingly reverse Allen’s conviction and remand for a new trial on the manslaughter count.

The murder charge lacked jurisdictional legitimacy (see People v McCoy, 109 AD3d 708 [1st Dept 2013]), violating Allen’s constitutional right to be tried for a felony only upon a valid indictment (see People v Hansen, 95 NY2d 227, 231 [2000]). While the trial for murder did not violate double jeopardy, it cannot be doubted that the presence of the charge “impugn [ed] the very integrity of the criminal proceeding” (Mayo, 48 NY2d at 252). There is nothing to suggest that Mayo is limited to double jeopardy cases in the manner suggested by the dissent; indeed, the Mayo court recognized that errors of “constitutional magnitude . . . are so fundamental that their commission serves to invalidate the entire trial,” and are not susceptible to a traditional spillover analysis, which has its “most convincing application in the area of trial errors concerning the admissibility of evidence” (id. at 252).

The dissent maintains that the right to an indictment by a grand jury is not a right “so basic to a fair trial that their infraction can never be treated as harmless error” (internal quotation marks omitted). However, the New York State Constitution holds that no person shall be held to answer for an infamous crime unless upon indictment of the grand jury (NY Const, art I, § 6), and the right to indictment by grand jury has been recognized “as not merely a personal privilege of the de fendant but a public fundamental right, which is the basis of jurisdiction to try and punish an individual” (People v Boston, 75 NY2d 585, 587 [1990] [internal quotation marks omitted]).

Although defendant Allen was ultimately acquitted of the murder charge, the charge’s presence loomed over the trial, and in some way influenced the verdict. Rather than continuing to deliberate concerning Allen’s innocence — including evidence suggesting that he was surprised by the shooting, and may have intended that the victim receive no more than a “clipping” — the jury may have concluded that it had sufficiently grappled with the proof by acquitting him of the most serious charge.

In Mayo, the Court held that a retrial was necessary even though the unlawful charge had been dismissed prior to the jury retiring to deliberate. Allen’s jury was allowed to deliberate on the illegal charge, increasing the likelihood that its presence influenced the verdict and “induced the jury to find him guilty of the less serious offense” (id. at 251).

The People’s argument that Allen suffered no constitutional violation because he had previously been indicted by a grand jury for murder ignores the jurisdictional nature of the defect and is nothing more than an attempt to circumvent the Credle violation.

Even under the dissent’s spillover analysis, it cannot be concluded beyond a reasonable doubt that Allen did not suffer prejudice as a result of the constitutionally infirm charge. Defense counsel’s strategy was no doubt affected by the need to present an effective defense to the more serious charge.

For the reasons stated in the dissent, we reject defendant Burgan’s other arguments.

Concur — Acosta, P.J., Manzanet-Daniels, Mazzarelli and Gische, JJ.