People v. Davis

Nov 8, 2004
Versions:12 A.D.3d 456
783 N.Y.S.2d 850
2004 N.Y. App. Div. LEXIS 13308

*457Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.), rendered April 16, 2002, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the sentence is vacated, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

The Supreme Court erroneously instructed the jury on the charge of robbery by defining its elements prior to opening statements (see CPL 260.30, 270.40). The Supreme Court’s instructions created the possibility of premature deliberations by the jury (see People v Townsend, 67 NY2d 815 [1986]; People v Soto, 285 AD2d 618 [2001]; People v Mollica, 267 AD2d 479 [1999]; People v Fujah, 182 AD2d 774 [1992]). We review this issue despite the absence of an objection at trial because the error is one which affects the “mode of proceedings proscribed by law” (People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]; see People v Mehmedi, 69 NY2d 759, 760 [1987]; People v Ahmed, 66 NY2d 307, 310 [1985]; People v Fujah, supra) in violation of the statutorily proscribed order of trial proceedings (see CPL 260.30).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.