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People v. Telesford

Supreme Court of New York, First Department

March 15, 2017

The People of the State of New York, Respondent,
Travis Telesford, Defendant-Appellant. The People of the State of New York, Respondent,
Bernie Celestine, Defendant-Appellant.

         Defendant 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.

          Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick and Sharmeen Mazumder of counsel), for Travis Telesford, appellant.

          Seymour W. James, Jr., The Legal Aid Society, New York (Andrea L. Bible of counsel), for Bernie Celestine, appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.

          Peter Tom, J.P., Dianne T. Renwick, Sallie Manzanet-Daniels, Judith J. Gische, Troy K. Webber, JJ.


          RENWICK J.

         In this 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.

         Factual and Procedural Background Evidence Adduced at Trial

         The 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.

         Li 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.

         Li 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 ring.

         When 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.

         Li told 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.

         Meanwhile, 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.

         Li, who 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 week."

         At 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."

         Jury Charge, Notes and Deliberations

         Initially, 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.

         After 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 present.

         The 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.

         After 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.

         Shortly 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.

         Shortly 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 to Celestine.

         Later, 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.

         The 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.


         Both 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 ...

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