People v. TerryPeople v. Terry
Appeal from a judgment of the Supreme Court (Teresi, J.), rendered November 29, 2001 in Albany County, upon a verdict convicting defendant of the crime of robbery in the third degree.
On February 8, 2001, at approximately 10:45 p.m., Yelda Watts was driving home when she saw an acquaintance, Sandra Williams, and gave her a ride to a market in the City of Albany. At the market, Watts bought beer and also a $50 piece of crack cocaine from an unknown seller. Watts saw defendant at the store but did not converse with him. She and Williams went to Williams’s home, which Watts knew to be a crack house. There, they drank beer and smoked the crack cocaine. Defendant was in and out of Williams’s home, but Watts did not interаct with him. At approximately 2:30 a.m., Watts decided to leave. Watts testified that after she descended the front steps of Williams’s house, defendant “showed up from nowhere,” grabbing her around her neck with both hands, demanding money, threаtening, “[D]on’t you know I can snap your f* * *ing neck.” After a brief struggle, Watts gave defendant $140 and drove home. Three days later, Watts signed a criminal complaint against defendant who was thereafter arrested.
At the three-witness trial, Watts and the arresting officer testified for the People. Watts, among other things, recounted the facts related above. The arresting officer testified to defendant’s flight prior to his arrest. Williams testified for the defense. While Williams confirmed certain aspects of Watts’s story, she also testified that Watts was angry at defendant for selling her fаke cocaine earlier that evening. Williams stated that after Watts left, she watched Watts safely cross the street to her car and did not see defendant in the vicinity.
The defense rested without calling defendant as a witnеss and the proof was closed. At the charge conference the next day, out of the jury’s presence and prior to closing arguments and Supreme Court’s charge, defendant addressed the court. He specifically requested to testify, indicating that his attorney would not discuss the issue with him. The court advised defendant to speak to his attorney and noted that the proof was closed. Thereafter, defendant’s attorney delivered his clоs
The jury convicted defendant of robbery in the third degree. Defendant’s attorney moved, posttrial, to sеt aside the verdict based'in part upon his failure to make a timely application to reopen the proof to permit defendant to testify. Supreme Court denied the motion, noting defense counsel’s failure to move to reopen the proof and further noting that, based upon its earlier Sandoval ruling which admitted much of defendant’s extensive criminal record, it considered the fact that defendant did not testify to be a trial tactic.
The primary issue before us is whether defendant was deprived of his due process right to testify. “One of the fundamental precepts of due process is that a defendant in a criminal proceeding has the right to testify, which right is guaranteed under both the Federal and New York State Constitutions” (People v Mason,
The Pеople argue that Supreme Court’s determination not to reopen the proof prior to the commencement of summations was a proper exercise of discretion to follow the order of trial set forth under CPL 260.30, particularly in light of defendant’s waiver of his right to testify by choosing not to take the stand before the end of his proof. However, the order of a criminal trial, fixed by statute (see CPL 260.30), “ ‘is not a rigid one and the common-law pow.еr of the trial court to alter the order of
We need not address defendant’s remaining contentions.
Mercure, Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the Supreme Court for a new trial.