The People of the State of New York, respondent, v John Kluge, appellant.
Index No. 1410-10; 2011-11921
Appellate Division of the Supreme Court of the State of New York, Second Department
February 5, 2020
2020 NY Slip Op 00878
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
Published by New York State Law Reporting Bureau pursuant to
Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo and Glenn Green of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered December 14, 2011, convicting him of rape in the first degree, criminal sexual act in the first degree, and burglary in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant‘s omnibus motion which was to suppress DNA evidence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
In May 2010, the defendant was arrested and charged with, inter alia, burglary in the first degree, rape in the first degree, and criminal sexual act in the first degree. DNA testing matched his DNA to DNA collected from a complainant who was attacked and raped in her garage in October 2009. After a trial, the jury convicted the defendant of those charges.
The defendant failed to preserve for appellate review his contention that count 3 of the indictment was duplicitous, and we decline to review this contention in the exercise of our interest of justice jurisdiction (see People v Bonilla, 151 AD3d 735, 737; cf. People v Kaye, 137 AD3d 938, 940).
The defendant‘s contention that count 3 of the indictment is jurisdictionally defective is without merit. The defendant contends that while count 3 of the indictment charges him with violating
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant‘s guilt of burglary in the first degree beyond a reasonable doubt. Contrary to the defendant‘s contention,
There is no merit to the defendant‘s contention that he was arrested on an unrelated assault charge without probable cause, and that the subsequently acquired evidence against him should therefore have been suppressed. A boyfriend of the defendant‘s sister had complained to the police that the defendant had assaulted him. The boyfriend was personally acquainted with the defendant, whom he identified to the police as the individual who assaulted him (see People v Anderson, 146 AD2d 638, 639). Therefore, when a police officer observed the defendant as a passenger in a vehicle that had been stopped for a traffic infraction, and the defendant confirmed his name to the officer, there was probable cause to arrest him (see id. at 639). Moreover, contrary to the defendant‘s contention, the vehicle in which he was a passenger was properly stopped by the police. “[A]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred, even if the underlying reason for the stop was to investigate another matter unrelated to the traffic violation” (People v Davis, 103 AD3d 810, 811 [internal quotation marks omitted]; see People v Sluszka, 15 AD3d 421, 423). Here, the record supports the hearing court‘s determination to credit a police officer‘s testimony that he observed the vehicle in which the defendant was a passenger run a stop sign, and that he radioed that information to a fellow officer (see People v Rosario, 78 NY2d 583, 588) who then stopped the vehicle (see People v Davis, 103 AD3d at 811).
We agree with the County Court‘s determination declining to suppress the DNA evidence obtained from a piece of gum that the defendant discarded while he was in custody on the assault charge. A defendant seeking suppression of evidence must establish standing by demonstrating a legitimate expectation of privacy in the place or item searched (see People v Ramirez-Portoreal, 88 NY2d 99, 108; People v McCullum, 159 AD3d 8, 12, affd 34 NY3d 1022). “This burden is satisfied if the [defendant] subjectively manifested an expectation of privacy with respect to the . . . item searched that society recognizes to be objectively reasonable under the circumstances” (People v Burton, 6 NY3d 584, 588; see People v Ramirez-Portoreal, 88 NY2d at 108; People v McCullum, 159 AD3d at 12). “Where a defendant abandons property, there is no search or seizure” (People v Hogya, 80 AD2d 621, 621; see People v Burkett, 98 AD3d 746, 748). However, “if the abandonment is coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes ‘fruit’ of the poisonous tree” (People v Ramirez-Portoreal, 88 NY2d at 110). Moreover, “[t]he police may engage in a ruse with respect to a defendant as long as it is ‘not coercive or so fundamentally unfair as to deny due process‘” (People v LaGuerre, 29 AD3d 820, 822, quoting People v Amador, 11 AD3d 473, 474). Here, the defendant, who was in custody on the assault charge, had no reasonable expectation of privacy in the piece of chewed gum that he freely discarded into a trash can upon being told by a police officer that he had to get rid of it before being searched (see People v White, 153 AD3d 1369, 1370). The defendant was not forced or coerced into discarding the gum as there were other options he could have exercised in order to remove it before the search. Moreover, once the defendant “abandoned” the chewed gum by voluntarily discarding it into the trash can, there was no search or seizure (see People v Burkett, 98 AD3d at 748; People v Hogya, 80 AD2d at 621).
We also agree with the County Court‘s determination declining to suppress the DNA evidence derived from a buccal swab. The record demonstrates that the defendant voluntarily agreed to give a buccal sample (see People v Dail, 69 AD3d 873, 874). The testimony presented at the suppression hearing established that the defendant was only in custody for approximately 2 1/2 hours when he consented to the buccal swab (see id. at 874). He was asked if he would consent and was not told that he would not be allowed to leave if he did not consent. The defendant read the consent form, which informed him of his right to refuse to provide a buccal sample, and signed it. The
At the suppression hearing, the People established that the lineup identification procedures were not improper, and the defendant failed to establish that they were unduly suggestive (see People v Gregory, 160 AD3d 894, 895). While the defendant claims that a detective may have advised the complainant that the defendant‘s counsel would be present at the lineup, even if the complainant was so advised, the lineup identification would not have been tainted (see People v Brown, 17 NY3d 742, 744; People v Ashby, 289 AD2d 588, 588). Moreover, contrary to the defendant‘s contention, under the circumstances of this case, the facts that the complainant may have seen a photograph of the defendant that had been released to the media (see People v Hamilton, 186 AD2d 581, 582), and that the lineup procedure was conducted 14 months after the incident, did not render the procedure unduly suggestive. Further, the failure to employ a double-blind sequential procedure is not a basis for suppression of the lineup, as there is no mandate to use any specific procedure (see People v Johnson, 10 NY3d 875, 878; People v Thomas, 131 AD3d 551, 552; People v McLaughlin, 8 AD3d 146, 147).
The defendant‘s contention that he is entitled to reversal because the People‘s motions pursuant to
Contrary to the defendant‘s contention, the People demonstrated their entitlement to the orders issued pursuant to
However, we agree with the defendant that the County Court should have granted his for-cause challenges to prospective jurors C.M. and D.A. on the ground that they each evinced “a state of mind that [was] likely to preclude [each of them] from rendering an impartial verdict based upon the evidence adduced at the trial” (
“[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” (People v Warrington, 28 NY3d 1116, 1119-1120 [internal quotation marks omitted]; see
Taken as a whole, the responses given by C.M. and D.A. “raise[d] a serious doubt regarding [their] ability to be impartial” (People v Warrington, 28 NY3d at 1119 [internal quotation marks omitted]; see
In addition to improperly denying these for-cause challenges, the County Court erred in its management of concerns expressed by sworn jurors regarding their deliberations. At the commencement of the second day of deliberations, the court met with counsel and deliberating juror C.H., who had left the court a telephone message expressing concerns about deliberations. This conversation took place outside the defendant‘s presence. Although the court properly attempted to keep its communication with C.H. ministerial by simply directing her to put her concerns in writing, C.H. refused to accept the court‘s directions, expressing concerns about the course of deliberations, including a concern that someone was “stirring the jury” and that other jurors had been “influenced.” The court eventually directed a court officer to return C.H. to the jury room and provide her with writing materials.
A defendant‘s right to be present “extends to all material stages of the trial, including ancillary proceedings in which defendants’ presence could have ‘a substantial effect on their ability to defend against the charges‘” (People v Velasquez, 1 NY3d 44, 47, quoting People v Sloan, 79 NY2d 386, 392). The defendant‘s right to be present includes “‘the court‘s charge, admonishments and instructions to the jury‘” (People v Burton, 138 AD3d 882, 883, quoting People v Rivera, 23 NY3d 827, 831). This right includes the defendant‘s right to be present during supplemental instructions to a lone juror unless the communication is purely ministerial (see People v Rivera, 23 NY3d at 832). Here, C.H.‘s comments were in the nature of complaints that the jury was being pressured. C.H.‘s concerns regarding the integrity of the deliberation process and the court‘s responses to them cannot be characterized as solely ministerial, despite the court‘s attempt to simply direct C.H. to put her concerns in writing rather than express them orally. Since the violation of a defendant‘s right to be present during the instruction of jurors is a mode of proceedings error, it need not be preserved for appellate review and presents an additional ground for reversal and a new trial (see id. at 831-832).
After the colloquy with C.H. and following an off-the-record discussion, the defendant was returned to the courtroom, and the court stated that it had received a note from the jury which had been marked as Court Exhibit X and “sealed with the consent of all parties.” No further discussion of Court Exhibit X appears on the record.
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“[A] trial court‘s failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal” (People v Morrison, 32 NY3d 951, 952; see People v Mack, 27 NY3d at 538; People v Nealon, 26 NY3d 152, 157; People v Silva, 24 NY3d at 299). “[A] trial court does not satisfy its responsibility to provide counsel with meaningful notice of a substantive jury inquiry by summarizing the substance of the note” and must instead read the note into the record “verbatim” (People v Nealon, 26 NY3d at 156, 157, quoting People v Kisoon, 8 NY3d 129, 135; see People v Morrison, 32 NY3d at 960). Nevertheless, where the record demonstrates that counsel was given notice of the actual contents of the note, the court‘s failure to
We cannot assume, from the County Court‘s statement that the parties agreed to seal the note, that counsel was made aware of the exact contents of the note since “an insufficient record cannot be overcome with speculation about what might have occurred. The presumption of regularity cannot salvage an O‘Rama error of this nature” (People v Parker, 32 NY3d at 60 [internal quotation marks omitted]). Moreover, since the failure to disclose a jury note to counsel is a mode of proceedings error, it cannot be overlooked as harmless even where the evidence is otherwise overwhelming (see People v Mack, 27 NY3d at 540). Therefore, this error provides an additional basis upon which a new trial must be ordered.
Because the defendant must be retried, we need not reach the defendant‘s contention that his sentence was excessive.
The defendant‘s contentions that the People improperly obtained DNA evidence from an envelope is without merit, and his remaining contentions need not be reached.
DILLON, J.P., LEVENTHAL, MALTESE and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court