Calendar Date: November 15, 2013
Matthew C. Hug, Troy, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: Peters, P.J., Lahtinen, Stein and Egan Jr., JJ.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 20, 2012 in Albany County, upon a verdict convicting defendant of the crimes of burglary in the first degree and robbery in the first degree.
Defendant was indicted for burglary in the first degree and robbery in the first degree in connection with a home invasion in the City of Albany. Following a jury trial, he was convicted as charged and sentenced to two concurrent prison terms of 18 years to be followed by five years of postrelease supervision. He now appeals.
We reject defendant's argument that the verdict was against the weight of the evidence. The sole substantive issue at trial was the identity of the perpetrator. The 91-year-old victim testified that a masked intruder entered her home with a knife, tied her hands together and ransacked her home searching for money and jewelry. She explained that the man ultimately discovered and stole over $30, 000 in cash that she had been saving for over 60 years. Testimony was presented that, shortly after the invasion, defendant was seen with bags containing an undetermined quantity of money that was described as looking "old, " purchased a plane ticket to Puerto Rico and wired $1, 000 to himself there. The People also introduced the testimony of Albert Surillo, a friend of defendant and his family, as well as a transcript of a police-arranged recorded telephone conversation that Surillo had with defendant approximately a month after the robbery. During this conversation, defendant stated that he had stolen a large sum of cash from an elderly woman during the course of a robbery and made several other inculpatory statements identifying himself as the perpetrator . While this conversation was not recorded in the presence of the police, and Surillo — who had pending charges against him reduced in exchange for his cooperation — was the only person to identify defendant's voice, these circumstances were fully explored during the trial and presented for the jury's consideration (see People v Estella, 107 A.D.3d 1029, 1031 , lv denied 21 N.Y.3d 1042 ; People v Heard, 92 A.D.3d 1142, 1144 , lv denied 18 N.Y.3d 994 ; People v Thaddies, 50 A.D.3d 1249, 1250 , lv denied 10 N.Y.3d 965 ). "Evaluating the evidence in a neutral light, weighing the probative force of the conflicting testimony and considering the relative strength of the inferences to be drawn therefrom, while giving due deference to the jury's credibility determinations" (People v Callicutt, 101 A.D.3d 1256, 1259 , lvs denied 20 N.Y.3d 1096, 1097 ; see People v Danielson, 9 N.Y.3d 342, 348-349 ; People v Bleakley, 69 N.Y.2d 490, 495 ), we find that the jury's verdict is supported by the weight of the evidence.
As defendant was being transported from the courtroom to the jail at the conclusion of the second day of trial, a deputy sheriff slipped a religious tract into defendant's pocket. The document acknowledged defendant's legal right to remain silent, but exhorted him to forgo that right and confess. "Yes, you have the right to remain silent, " it stated. "You have the right to remain in your sins. But please don't. Your conscience testifies against you. Confess your sins..." or "spend eternity in a prison called hell."  When the parties appeared before Supreme Court the following day, defense counsel moved for a mistrial, arguing that the deputy's actions constituted official interference with defendant's decision on whether to testify. Noting that the jury was not aware of the incident and concluding that the pamphlet should not "affect the defendant one iota, " Supreme Court denied the motion. Defendant ultimately elected not to testify. On appeal, defendant asserts that the deputy sheriff's attempt to tamper with and influence his decision to testify served to deprive him of a fair trial.
Our analysis begins with the fundamental precept that a criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions (see Rock v Arkansas, 483 U.S. 44, 51-53 ; Jones v Barnes, 463 U.S. 745, 751 ; Bennett v United States, 663 F.3d 71, 84 [2d Cir 2011]; People v Terry, 309 A.D.2d 973, 974 ). This fundamental "right to testify is 'personal' and... can be waived only by the defendant, " and any such waiver must be knowingly, voluntarily and intelligently made (Chang v United States, 250 F.3d 79, 82 [2d Cir 2001]; see United States v Leggett, 162 F.3d 237, 245-246 [3d Cir 1998], cert denied 528 U.S. 868 ; Brown v Artuz, 124 F.3d 73, 78-79 [2d Cir 1997], cert denied 522 U.S. 1128 ; United States v Pennycooke, 65 F.3d 9, 11 [3d Cir 1995]). To be sure, the "trial court does not have a general obligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligent waiver of his [or her] right" (People v Dolan, 2 A.D.3d 745, 746 , lv denied 2 N.Y.3d 798 ; see People v Cosby, 82 A.D.3d 63, 66 , lv denied 16 N.Y.3d 857 ). However, "in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant's right to testify is protected" (United States v Pennycooke, 65 F.3d at 12; see United States v Hung Thien Ly, 646 F.3d 1307, 1317 [11th Cir 2011]; United States v Leggett, 162 F.3d at 247; United States v Dryden, 141 F.3d 1186, 1186 [10th Cir 1998]; Ortega v O'Leary, 843 F.2d 258, 261 [7th Cir 1988], cert denied 488 U.S. 841 ; People v Dolan, 2 A.D.3d at 746).
We believe that such colloquy was critically necessary here. The privilege against self-incrimination — and, by extension, the decision whether to waive that privilege and testify — "is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion'" (Colorado v Connelly, 479 U.S. 157, 170 , quoting Oregon v Elstad, 470 U.S. 298, 305 ). But here the deputy's actions in foisting the religious tract upon defendant constituted an effort by law enforcement to "interfere with the free and unhampered decision of [defendant] to testify" (People v Webb, 195 A.D.2d 614, 615 , lv denied 82 N.Y.2d 808 ; see United States v Pinto, 850 F.2d 927, 932 [2d Cir 1988], certs denied 488 U.S. 867, 932 ; Andrews v State, 443 So.2d 78, 84 [Fla 1983]). Moreover, looking at "factors beyond the government's control to determine whether [defendant's] decision not to testify resulted from the government's conduct, " defendant allegedly knew "chapter and verse" the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made (United States v Pinto, 850 F.2d at 932).
Thus, while the mistrial requested by defendant was properly denied, the appalling conduct by the deputy "trigger[ed]... [the] court's duty to discuss with... defendant his decision of whether to testify" (United States v Hung Thien Ly, 646 F.3d at 1317; see Ortega v O'Leary, 843 F.2d at 263). We find that Supreme Court fulfilled that duty here. After the People rested their direct case on the third day of trial, defense counsel requested an adjournment to locate a defense witness and indicated that he did not anticipate that defendant would be testifying. At that point, the following colloquy took place between Supreme Court and defendant:
THE COURT: There's one other thing I'm going to cover, then, before I bring the jurors back in. I am going to address the defendant.... I'm going to address the issue as to the defendant having a right to testify and a right not to testify. So, Mr. Robles, do you understand that you ...