People v. Cruz

927 N.E.2d 542, 14 N.Y.3d 814, 901 N.Y.S.2d 122

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant was charged with two counts of assault in the first degree for allegedly stabbing two men during a brawl outside a bar. At trial, defendant interposed the defense of misidentification. During deliberations, the jury submitted a note requesting to see the written statement prepared by a police officer and signed by defendant in which he made certain admissions. Although the exhibit was ostensibly only to be used to refresh the police officer’s recollection, Supreme Court received and marked this exhibit in evidence over the objection of defense counsel. Later, Supreme Court, outside the presence of the jury, reversed its ruling and determined that this written statement was not evidence, re-marking it as a court exhibit. Supreme Court failed to instruct the jury accordingly, however. The jury retired to deliberate and first requested certain exhibits that had been marked in evidence, which were provided.

Footnotes

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* Later, the jury requested to see the written statement signed by defendant, which it also believed was in evidence. Nothing in the record suggests that the judge received the jury note or discussed its contents with the parties.

Defendant appealed from the judgment convicting him of two counts of first-degree assault citing a violation of CPL 310.30 and People v O’Rama (78 NY2d 270 [1991]). The Appellate Division initially reserved decision on defendant’s appeal and remitted the case to Supreme Court for a reconstruction hearing to determine “whether there was a jury note and, if so, what action was taken with regard to the jury note” (People v Cruz, 42 AD3d 901 [4th Dept 2007] [internal quotation marks, brackets and citations omitted]).

At the reconstruction hearing, the trial judge stated that he had no independent recollection of receiving the particular jury note at issue. He discussed his standard practice with the parties and noted that he generally allows juries to review exhibits admitted in evidence upon their request without reconvening, provided that the parties are in agreement as they were here. Significantly, he stated that, had he been told that the jury in this case requested a court exhibit not in evidence, he would have reconvened the proceeding in the presence of defendant. The Appellate Division, applying the presumption of regularity, affirmed the judgment (People v Cruz, 57 AD3d 1453 [4th Dept 2008]).

Typically, “[a] presumption of regularity attaches to judicial proceedings” (People v Velasquez, 1 NY3d 44, 48 [2003]; see also People v Harrison, 85 NY2d 794, 796 [1995]). Here, the Appellate Division erred in holding that the presumption had not been overcome. The record shows that there was a significant, unexplained irregularity in the proceedings in that defendant established that the jury requested an exhibit not in evidence; it was reasonable for the jury to believe the exhibit to be in evidence, since it heard the trial court receive the item, but was not privy to the court’s subsequent reversal of that ruling; and the request was never brought to the judge’s attention. Thus, there is no basis in the record to conclude that the jury was informed by anyone that the item was not in evidence, and the jury may have received the exhibit in error.

We conclude that defendant met his burden of rebutting the presumption of regularity by substantial evidence. That evidence includes the trial judge’s statement at the reconstruction hearing that he never saw the note, that he did not reconvene with counsel, and that he did not know if the exhibit was ever shown to the jury. Nor can we agree with the Appellate Division’s determination that, even if the jury received this unadmitted exhibit in error, such error was harmless, since the exhibit contradicted defendant’s misidentification defense at trial "(cf. People v Bouton, 50 NY2d 130, 137 [1980]).

We need not reach defendant’s remaining arguments.

Indeed, the record in this case reflects that, prior to the commencement of deliberations, the parties agreed to allow the jury to review exhibits admitted in evidence upon its request.