People v. Farez

2017 NY Slip Op 4041, 150 A.D.3d 528, 55 N.Y.S.3d 177

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2017
• Docket: 3662 359/14
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Eugene Oliver, Jr., J.), rendered February 6, 2015, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of 3 years, reversed, on the law, and the matter remanded for a new trial.

Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party (see People v Hudy, 73 NY2d 40, 56 [1988] [“extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground”], overruled in part on unrelated grounds by Carmell v Texas, 529 US 513 [2000]). Furthermore, as we have stated, where there is evidence raising the possibility of a “police motive to fabricate,” cross-examination of police witnesses is “highly relevant” (People v Rios, 223 AD2d 390, 392 [1st Dept 1996], appeal withdrawn 87 NY2d 1024 [1996]). Thus, Supreme Court’s errors deprived defendant of his right to present a defense (see Hudy, 73 NY2d at 56; Rios, 223 AD2d at 392). As there was “a reasonable possibility that the non-disclosure materially contributed to the result of the trial” (CPL 240.75), Supreme Court’s errors were not “harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237 [1975]).

Were we not reversing on the basis of error regarding the Rosario material and the related cross-examination, we would reverse on another ground—namely, Supreme Court’s communication with the jury off the record and outside the presence of defendant and his counsel. After the jurors had been deliberating for four days, they sent a note to the court stating they were deadlocked on the third count of the indictment and asking for guidance. The court discharged the jury for the day in contemplation of taking further actions, possibly including the delivery of an Allen charge, in the morning. The next morning, in defendant’s and his counsel’s absence, the court instructed the jury, off the record, to resume deliberations. The same afternoon, the court informed defendant and his counsel of this instruction, and counsel did not object.

“[T]he presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given, and failure to notify them is a fundamental error” (People v Ciaccio, 47 NY2d 431, 436-437 [1979]). Moreover, “CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal” (People v Mehmedi, 69 NY2d 759, 760 [1987]). Here, the absence of defendant and his counsel during the court’s undisputedly substantive instruction to resume deliberating notwithstanding the reported deadlock was a mode of proceedings error, requiring reversal despite the lack of any objection (id. at 760; see also People v Bonilla, 186 AD2d 748, 748 [2d Dept 1992]). Additionally, harmless error analysis is inapplicable (see Mehmedi, 69 NY2d at 760).

Concur—Sweeny, J.P., Moskowitz and Gesmer, JJ.