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People v. Farez

Supreme Court of New York, First Department

May 18, 2017

The People of the State of New York, Respondent,
v.
Joel Farez, Defendant-Appellant.

          Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Peter John Davis counsel), for appellant.

          Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge of counsel), for respondent.

          Sweeny, J.P., Andrias, Moskowitz, Kahn, Gesmer, JJ.

         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 N.Y.2d 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 U.S. 513');">529 U.S. 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cross-examination of police witnesses is "highly relevant" (People v Rios, 223 A.D.2d 390, 392 [1st Dept 1996], appeal withdrawn 87 N.Y.2d 1024');">87 N.Y.2d 1024 [1996]). Thus, Supreme Court's errors deprived defendant of his right to present a defense (see Hudy, 73 N.Y.2d at 56; Rios, 223 A.D.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 A.D.2d 748, 748 [2d Dept 1992]). Additionally, harmless error analysis is inapplicable (see Mehmedi, 69 N.Y.2d at 760).

         All concur except Andrias and Kahn, JJ. who concur in a separate memorandum by Andrias, J. as follows:

          ANDRIAS, J. (concurring)

         I agree with the majority that the judgment convicting defendant of criminal possession of a controlled substance in the fifth degree should be reversed, and the matter remanded for a new trial, on the grounds that the trial court improperly limited both defense counsel's discovery of Rosario material and his ability to cross-examine the police witnesses at trial. However, I write separately because, under the particular circumstances of this case, I disagree with the majority's alternative holding that the court committed a mode of proceedings error, requiring reversal without preservation, when, upon the jurors' return to the courthouse on the morning of November 18, 2014, it communicated to them, off the record and outside the presence of defendant and counsel, that they should continue deliberations.

         Contrary to the majority's view, there was no mode of proceedings error because the record establishes that when the court received the jury's deadlock note on the previous afternoon, it complied with its core responsibilities under CPL 310.30 by (i) reading the note to defendant and counsel verbatim, (ii) affording counsel an opportunity to participate in formulating a response, (iii) advising defendant and counsel that the jury would have one more day to deliberate, possibly with another Allen charge, and (iv) instructing the jurors to cease deliberations until they reassembled the next day. Preservation is required under these circumstances, where counsel and defendant were apprised of the procedure the court intended to employ and, upon defendant's production the next morning, were immediately informed that the court had given a brief directive to the jury to resume deliberations. However, not only did defense counsel fail to raise an objection, he in fact agreed with the procedure employed by the court. Moreover, even if there was a mode of proceedings error, it was cured when, later in the day, the court, afer consulting with the parties, subsequently gave the Allen charge in defendant's presence, after which the jury reached its verdict.

         Defendant allegedly sold 10 strips of Suboxone to an undercover police officer. His defense was that the police confused him with another man, who was arrested five minutes later for selling the same amount of Suboxone to the same undercover at the same location, and then lied about defendant to cover up their mistake.

         On November 12, 2014, the jury began deliberating. On November 13, an Allen charge was given after the jury indicated varying degrees of deadlock. On November 17, the court took a partial verdict acquitting defendant of criminal sale of a controlled substance in the fourth and fifth degrees. Later that day, the court received another note stating: "We, the [j]ury, cannot come to an agreement on Charge 3 [the criminal possession count], 10 to 2." The court read the note on the record, in the presence of defendant and his counsel, and stated:

"It sounds to me like a deadlock. After concensus [sic] off the record between the parties, I'll probably end the day and have them ...

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