People v. ArmstrongPeople v. Armstrong
Appeal by the People from an order of the Supreme Court, Queens County (Knopf, J.), dated April 18, 2014, which granted the defendant‘s motion pursuant to
Ordered that the order is reversed, on the law, the defendant‘s motion to set aside the jury verdict is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Queens County, for sentencing.
The defendant was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. He was tried before a jury over several days in February 2014.
On February 13, 2014, after jury deliberations ceased for the day, three of the jurors were escorted to an elevator bank by a court officer. The court officer spoke to one of the jurors, commenting on the evidence of the case and the logical inference of the defendant‘s guilt. The juror brought this interaction to the Supreme Court‘s attention the following morning, before the attorneys and the defendant.
After questioning the court officer and confirming the basic details of the interaction with the juror, the Supreme Court intimated that a mistrial was necessary, and then dismissed the court officer from the courtroom and directed that he have no further interaction with the jury. Defense counsel interceded
The defendant moved pursuant to
In an order dated April 18, 2014, the Supreme Court granted the defendant‘s motion. The court held that the egregious violation of the prohibition against communications between deliberating jurors and court personnel found in
Except when authorized by the court or when performing administerial duties with respect to the jurors, court officers may not communicate with jurors or permit any other person to do so (see
Waiver and preservation are separate concepts (see People v Iannone, 45 NY2d 589, 600 [1978]), although they are often “inextricably intertwined” (People v Michael, 48 NY2d 1, 5 n 1 [1979]). Waiver connotes the intentional relinquishment or
Here, the defendant waived his contention that the court officer‘s misconduct deprived him of his right to a fair trial. Defense counsel affirmatively opposed the Supreme Court‘s suggestion that a mistrial be declared by requesting that the jury continue deliberations.
Nevertheless, there is a limited class of errors that “go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted” (People v Kelly, 5 NY3d 116, 119-120 [2005]; see People v Agramonte, 87 NY2d 765, 770 [1996]; People v Patterson, 39 NY2d 288, 294-296 [1976]). As such, these “mode of proceedings” errors are “immune from the requirement of preservation” (People v Kelly, 5 NY3d at 120; see People v Rivera, 23 NY3d 827, 831 [2014]), and a defendant “cannot waive, or even consent to,” such errors (People v Patterson, 39 NY2d at 295).
Here, the Supreme Court erred in concluding that the court officer‘s misconduct constituted a mode of proceedings error. In People v Kelly (5 NY3d 116 [2005]), the Court of Appeals was tasked with determining whether a court officer‘s unauthorized weapons demonstration in a jury room constituted a mode of proceedings error that could be raised on appeal, even if unpreserved. In that case, the defendant was charged with murder for a fatal stabbing with a 12-inch-long bayonet. The parties, at the start of deliberations, had consented to allow the trial exhibits to be given to the jurors whenever they requested them. On the third day of deliberations, a court officer brought the bayonet and sheath, which were trial exhibits, into the jury room in response to a written jury request to see them. When the jurors sought to handle the exhibits, the court officer, concerned for the safety of the jury, refused, but agreed to place the bayonet at his waistband and draw it from its sheath while the jurors watched. The officer then answered a few questions from the jurors about the demonstration. This conduct occurred without the court‘s knowledge or permission. Indeed, after the court officer notified the court of what had happened, the court promptly advised both sides and, after consulting with the defendant, defense counsel agreed that the
Since the error here did not rise to the level of a mode of proceedings error, the defendant‘s motion to set aside the verdict on that basis was subject to the normal rules of preservation and waiver. On the facts of this case, the defendant clearly waived these arguments by explicitly rejecting the Supreme Court‘s offer to declare a mistrial, and, instead, requesting that the jury be permitted to continue deliberating. Here, defense counsel specifically opposed the court‘s offer to declare a mistrial and also opposed the court‘s offer to conduct additional inquiries of the jurors, thereby waiving the merits of the defendant‘s contentions (cf. People v Bannerman, 59 AD2d 719 [1977]). Defense counsel‘s opposition to a mistrial placed the court in the position of declaring a mistrial against the wishes of the defendant, thereby placing a further prosecution in doubt. This could have led to a violation of the prohibition against double jeopardy, as a mistrial may have been declared in the absence of manifest necessity (see Matter of Cohen v Lotto, 19 AD3d 485, 486 [2005]).
Accordingly, the Supreme Court should have denied the defendant‘s motion to set aside the verdict.
Leventhal, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.