Travis Telesford appeals from the judgments of the Supreme
Court, New York County (A. Kirke Bartley, Jr., J.), rendered
September 22, 2014, convicting him, after a jury trial, of
robbery in the second degree, and imposing sentence.
Defendant Bernie Celestine appeals from the judgment of the
same court and Justice, rendered September 16, 2014,
convicting him, after a jury trial, of robbery in the second
degree, and imposing sentence.
S. Dean, Center for Appellate Litigation, New York (Katharine
Skolnick and Sharmeen Mazumder of counsel), for Travis
Seymour W. James, Jr., The Legal Aid Society, New York
(Andrea L. Bible of counsel), for Bernie Celestine,
R. Vance, Jr., District Attorney, New York (Patricia Curran
of counsel), for respondent.
Tom, J.P., Dianne T. Renwick, Sallie Manzanet-Daniels, Judith
J. Gische, Troy K. Webber, JJ.
case, we must determine what supplemental instructions are
required when a jury repeatedly expresses confusion, during
deliberations, about the concept of intent in a robbery
prosecution of two defendants charged under an accessorial
liability theory. Under the circumstances here, we find that
defendants were deprived of a fair trial when the court erred
by merely rereading robbery and accessorial liability charges
to the jury.
and Procedural Background Evidence Adduced at Trial
robbery charges stem from defendants' alleged forcible
taking or retaining of three rings from a small store in
Chinatown that sold scarves, jewelry, bags and souvenir hats.
At about noon on August 7, 2013, Yu Ying Li, who spoke only
limited English, was watching her husband's store while
he went to the basement to retrieve some items. Li's
friend, Ms. Zheng, was at the store as well. Li was 60 years
old, stood about five feet one inch, and weighed about 87
pounds. Zheng was 53 years old, about the same height, but
heavier. About a minute after Li's husband had gone to
the basement, defendants Telesford and Celestine entered the
otherwise empty store. Li greeted them and asked if she could
help them. The men told her that they were "just
looking." The men approached the jewelry case, and
although Li did not see them trying on men's rings, Zheng
did. A short time later, as defendants were about to leave,
Li noticed that three men's rings were missing from the
display tray. Zheng told Li about the three missing rings,
and Li asked her to try to get them back from the two men.
approached Celestine, and asked, "Why my ring?" or
"Why my ring no more?" while pointing to the empty
slots in the display case. Celestine said, "No, I
don't know." Telesford "inserted" himself
between Li and Celestine, and they both denied that Celestine
had taken any rings. Li tried to tell Telesford to ask
Celestine to return the rings. Telesford then hit or patted
Li on her left shoulder with his right hand. When Li hit
Telesford back, Telesford responded, "How dare you hit
me, " and hit Li a second time.
repeatedly told Telesford, "You no good man, " and
(because she did not know how to say "rude, ") that
he was a "bad man" and that he had hurt her. He
responded, "You said I am no good man?" and hit her
with both hands. Li then used both her hands to push
Telesford away. At that point, Celestine said, "Stop,
" opened his hand, and offered to return the rings. He
either handed two rings to Li or threw them in the case. Li
said, "One more, " because three rings had been
missing, but Celestine said, "No. No, " then
hesitated for a moment and moved his hand slightly in his
pocket. Telesford said "Go. Go. Go, " and gestured
to Celestine in a manner that Li thought meant that the men
should go and that Celestine should not return the third
Celestine moved to leave, Li said she was calling the police.
Telesford replied that if Li called the police, he would also
call the police because Li "can't speak English,
" and said something about "illegal, "
"immigration, " and "family together, "
though Li did not understand what he said. Both men then
tried to leave the store. Telesford raised his arm as if he
were going to hit Li. Celestine said something to Telesford,
who then looked at his cell phone and said something like,
"No problem." Telesford looked "so
fierce" at that point that Li grew afraid that he was
going to hit her again. At one point, one of the men also
spat at Li.
Telesford that she would "like to dare" him to hit
her, but she covered her head with her arm and
"pray[ed]" to God for "help." She then
realized that her right arm was being "tightly
held" just as Telesford punched her in the right side of
her mouth, causing her mouth to bleed. Zheng saw contact
between Telesford's hand and Li's mouth and saw blood
on the right side of Li's mouth.
Officers Lamour and Watson were in the vicinity, and heard a
woman yell, "Officer, look" or "help
police." Lamour looked up and saw Celestine holding a
woman while Telesford punched her. Watson also saw Telesford
strike an Asian woman in the lip. The officers apprehended
defendants. Lamour then frisked both defendants and recovered
a ring from Celestine's left front pants pocket. Li
identified the ring, which was valued at $25.
also suffered a bruise to her arm where Celestine had grabbed
her, felt dizzy and faint. The police took her to a hospital,
where a doctor examined her, treated her for a mild abrasion
to her lip with "no active bleeding" and "no
loose teeth, " and advised her to treat the wound with
bacitracin. Later that day, Li felt ill and vomited. Li was
not able to go to work the next day and did not return to the
store until the following Monday. Two days after the robbery,
Li saw a doctor because her mouth was "still not
good" and she was dizzy and had headaches. Li's
mouth hurt for "[s]everal days, " "almost like
over a week, " and her head hurt for "about one
trial, both defendants testified. Celestine and Telesford,
who were college roommates, denied that they entered Yu Ying
Li's store with any intent to steal jewelry or anything
else. Instead, they claimed that they entered the store
because Celestine wanted to purchase a key chain. As
Celestine looked at key chains, Telesford stood nearby using
the Internet on his cell phone. About five seconds after they
entered the store, Li approached Celestine and asked him why
he had stolen something. Celestine told Li he had not taken
anything. Li then asked Telesford if he had stolen anything,
and he denied having done so. Then, another woman in the
store hit Celestine in the shoulder. In response, Celestine
asked the woman, "What are you doing, Miss?" and
denied that he had taken anything. Li then tried to go into
Telesford's pockets, and he brushed off her hand. Li then
spat in Telesford's face, and as a "reflex" or
a "reaction, " his hand "just went up"
and he "backhand[ed]" Li to stop her from spitting
on him or doing "anything else."
Charge, Notes and Deliberations
the court instructed the jurors that it was their
"obligation" to "evaluate" the evidence
as it applied to "each defendant separately"; that
the jurors must consider "each instruction on the
law" as "referring to each defendant
separately"; that they must return a separate verdict
for each defendant; and that those verdicts "may be, but
need not be, the same." It reminded the jury that the
People had the burden of proving beyond a reasonable doubt
that "each defendant" acted with the same state of
mind required for the commission of the crime, and,
"either personally, or by acting in concert with the
other person, " committed each of the remaining elements
of the crime.
giving the standard CJI instruction on accessorial liability
and robbery (forcible stealing), the court instructed the
jury on second-degree robbery under count one, explaining
that a defendant is guilty under this count "when that
person forcibly steals property and when that person is aided
by another person actually present." Specifically, the
court charged that with respect to each defendant separately,
the People had to prove beyond a reasonable doubt both: (1)
that the defendant personally, or by acting in concert with
another person, forcibly stole property from Li; and (2) that
the person was aided in doing so by another person actually
court next instructed the jury on second-degree robbery under
count two, explaining that a defendant is guilty under this
count "when that person forcibly steals property and
when in the course of the commission of the crime, that
person or another participant in the crime, causes physical
injury [impairment of physical condition or substantial pain]
to any person who is not a participant in the crime."
Thus, the court charged again that with respect to each
defendant separately, the People had to prove beyond a
reasonable doubt both: (1) that defendant personally or by
acting in concert with another person forcibly stole property
from Li; and (2) that in the course of the commission of the
crime, defendant, or another participant in the crime, caused
physical injury to Li.
the charge concluded, Celestine's counsel objected to the
section of the charge regarding the theory of robbery aided
by another, arguing "that by charging them acting in
concert I don't think that's a correct statement of
the law." Rather, she submitted that a correct statement
of the law would be, as to each individual, that Celestine
stole property, and in the course of doing so, was aided by
Telesford, arguing that it requires forcible stealing by one
defendant and aid in that stealing by the other, and that
either defendant could have used the force in stealing where
they both shared the intent to commit the underlying theft.
Counsel also noted that it does not matter which one of them
inflicts the injury. The court asked if counsel was asking it
to re-read the elements without the accomplice liability
part, and counsel stated that particularly as to the robbery
(aided by another) charge, saying acting in concert makes it
"messy, " and it has "to be parsed out to the
jury for them to understand that they must first find a
forcible taking and then find the aiding by another."
The court indicated that it would not change its charge.
Celestine's lawyer took an exception and Telesford's
lawyer stated that she joined in everything Celestine's
counsel had said.
after deliberations began, the jury sent out a note
requesting the court's clarification of intent, as well
as a written definition of the charges for both defendants.
Celestine's lawyer asserted that the note indicated that
the jurors were "confused, " and argued that
"things need to be separated out, especially with
respect to the robbery." Telesford's lawyer agreed.
The court declined to charge the jury in a different manner,
and merely advised the jury that it could not provide a
written charge, but could read back any portion.
thereafter, the jury asked to "hear the full definition
of all the charges for both defendants, " and
Celestine's counsel said that she "repeat[ed her]
objection." The court then re-read its charge regarding
the separate consideration of each defendant; its accessorial
liability charge; its definitions of larceny and forcible
stealing; the elements of both counts of second-degree
robbery; and its charge on the elements of petit larceny as
the court followed Telesford's counsel's suggestion
that it respond to a jury note by advising that there was no
definition of "shared mind intent" and by
re-reading the definition of "working in concert."
Without an objection, the court also repeated its original
charge on accessorial liability and offered to provide an
expanded intent charge. When the jurors sent out a note
stating that they were deadlocked, the court asked them to
continue deliberating the following day. The next day, the
jurors requested to hear an "expanded definition of
intent, " and the court complied, without any objection
from defendants. A few minutes later, the jurors asked to
hear the "definition of intent again" and to
"hear the charges again." Without any objection
from either defendant, the court again repeated its original
charges. After the jurors resumed their deliberations,
Celestine's counsel noted that she "ha[d]n't
waived [her] objection to the charge, " while
Telesford's attorney said nothing.
jurors then returned their verdict. Defendants were convicted
of second-degree robbery for causing physical injury to Li in
the course of stealing a ring from her store. The jury did
not reach a decision as to the charge of robbery in the
second degree under an aided theory and did not consider the
petit larceny charge because it convicted defendants of a
robbery charge. The court declared a mistrial as to those
counts. After sentencing, the prosecutor moved to dismiss the
robbery count under the aided theory.
Telesford and Celestine initially argue that the verdict was
not supported by legally sufficient evidence and was against
the weight of the evidence. There is no basis for disturbing
the jury's credibility determinations. The evidence
supports reasonable inferences that Telesford knew that
Celestine had shoplifted merchandise and had only returned
part of it to the victim, that at least one of the reasons
that Telesford assaulted the victim was to help Celestine
retain the remaining stolen property, that Celestine shared
Telesford's intent and joined in Telesford's use of
force by restraining the victim, and that this violent attack
on the victim was not a mere response to insults by ...