People v. HarperPeople v. Harper
Allen Harper, pro se, and Lynn W.L. Fahey, New York City (DeNice Powell of counsel), for Allen Harper, appellant.
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove, Adam S. Charnoff, Joyce Slevin, Thоmas S. Burka and Thomas M. Ross of counsel), for respondent.
OPINION OF THE COURT
SPOLZINO, J.
The principal issue presented on this appeal is whether the Supreme Cоurt erred in explaining to the jury, in the course of giving preliminary instructions, the elements of each of the three robbery counts with which the defendаnt was charged. The defendant argues, on the basis of People v Mollica (267 AD2d 479 [1999]), that giving such instructions constitutes reversible error. For the reasons that follow, however, we decline to adhere to the rule enunciated in People v Mollica (supra) and, because the remaining issues raised by the defendant on this appeal presеnt no basis for reversing his conviction, we affirm.
In People v Mollica (supra), we held that it is reversible error to instruct the jury before summations with respect to the elements of thе crime with which the defendant is charged. Our holding was predicated on People v Townsend (67 NY2d 815 [1986]), in which the Court of Appeals held that it was reversible error to providе the jury, before opening statements, with a written statement of the elements of the crime in issue. The logic of the Court of Appeals’ decision was that the written outline “invited piecemeal, premature analysis of the evidence” and “in effect served as a checklist аgainst which jurors could measure the evidence as it came in, with the attendant danger that jurors would conclude [the] defendant was guilty even bеfore he could present evidence or argument” (People v Townsend, supra at 817; see Preiser, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 11A,
In the nearly 20 years that have passed since Townsend was decided, the Court of Appeals has adhered to its holding (see People v Owens, 69 NY2d 585, 590 [1987]; People v Vincenty, 68 NY2d 899 [1986]), but has never extended that holding beyond the issue of written instructions. We have similarly continued to adhere to our position with respect to oral preliminary instructions (see People v Davis, 12 AD3d 456, 457 [2004]; People v Soto, 285 AD2d 618 [2001]). However, with the exception of the Appellate Term, Ninth аnd Tenth Judicial Districts (see People v Santos-Jackson, 2003 NY Slip Op 50678[U] [2003]; People v Morris, 162 Misc 2d 742 [1994]), we have done so alone. In fact, in the only other Appellate Division decision on the issue, the Appellаte Division, Third Department, rejected the principle (see People v Morris, 153 AD2d 984 [1989]).
Since our holding in People v Mollica (supra), moreover, there has been “an enormous amount of research and innovation, nationwide . . . focused on jury improvement” (Kaye, 2005: A Banner Year for Juries, 77 NY St BJ 20 [May 2005]). Preliminary jury instructions are now viewed as a way “to prоvide an introduction to the parties and their claims, and to provide guidance on contested issues and the governing legal principles” (ABA, Principles for Juries and Jury Trials, Commentary, at 33, quoting from National Center for State Courts, Jury Trial Innovations § V-9 [Munsterman et al. eds 1997]). Consistent with this, substantive preliminary instructions allow the jury to “understand in advance the context in which they will be required to evaluate or analyze” the evidence (ABA, Principlеs for Juries and Jury Trials, Commentary, at 33; see 5 LaFave, Israel and King, Criminal Procedure § 24.8 [2d ed]; Schwarzer, Reforming Jury Trials, 132 FRD 575, 584 [1991]; Cohen, The Timing of Jury Instructions, 67 Tenn L Rev 681, 688-692). As a rеsult, such instructions are now recommended by the Principles for Juries and Jury Trials, recently endorsed by the American Bar Association (see ABA, Principles for Juries and Jury Trials, principle 6 [C] [1] [2005]).
Current studies, particularly those conducted as part of the Jury Trial Project of the New York State Unified Cоurt System, have demonstrated the benefits of substantive preliminary instructions. As the committee found, “substantive preliminary
The now-prevailing view that substantive preliminary instructions are not objectionable does not, however, eliminate any concern about their use in criminal cases. It would be problematic, for example, to give preliminary instructions with respect to the elements of the crimes charged without at the same time instructing the jury as to the presumption of innocence, the burden of proof, and the manner in which the jury should assess the credibility of witnesses (see People v Morris, 162 Misc 2d at 742, supra) and providing an admonition against forming any conclusion until all of the evidence has been heard (id.). In the interest of fairness and balance, moreover, it may be appropriate, in the discretion of the trial court, tо provide a “nonargumentative impartial theory-of-defense instruction” (United States v Tucker, 1991 WL 33644, *1, 1991 US Dist LEXIS 2790, *3 [ND Ill, Feb. 12, 1991]), where requested (see State v Vowell, 25 Ariz App 404, 405, 544 P2d 228, 229 [1976]). Critically, substantive preliminary instructions are not a substitute for complete final instructions (see
Nevertheless, as the Chief Judge has admonished, “[w]e cannot, and should not, ignore the lessons learned” with respect to the best manner in which to assist the jury in performing its function (Kaye, 2005: A Banner Year for Juries, 77 NY St BJ 20, supra). Therefore, presented today with the issue of the propriety of preliminary instructions with respect to the
The defendant‘s claim that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress the contents of a black plastic bag that he dropped when approached by police officers is also without merit. The fаcts adduced at the suppression hearing support the Supreme Court‘s conclusion that the defendant‘s conduct evidenced a calculated strategy to rid himself of incriminating evidence. The Supreme Court, therefore, correctly declined to suppress the contents of the bag (see People v Murray, 247 AD2d 410 [1998]; People v Yizar, 196 AD2d 517, 518 [1993]).
The defendant‘s remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review.
Accordingly, the judgment should be affirmed.
SCHMIDT, J.P., SANTUCCI and LUCIANO, JJ., concur.
Ordered that the judgment is affirmed.