People v. Sotomayer

Appeal by defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered February 27, 1987, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence. — 501 — Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered. The trial court committed reversible error when, over the objection of both the defendant and the prosecution, it submitted the following "verdict sheet” to the jury: "verdict sheet "people V DAVID SOTOMAYER IND. NO. 5673/85 "COUNT 1 NOT GUILTY GUILTY "MURDER IN THE SECOND DEGREE _ _ (intentional murder) "—If you find the defendant guilty of murder in the second degree (intentional murder), do not consider any lesser included offense under this count of the indictment, but go directly to consideration of Count 2 of the indictment. "—If you find the defendant not guilty of murder in the second degree (intentional murder) because the People, despite having proven all elements of the crime, have failed to disprove justification, then you will also return not guilty verdicts as to all lesser included offenses under this count of the indictment. "—If you find the defendant not guilty of murder in the second degree (intentional murder) because the People have failed to prove the elements of the crime, you will, without considering the issue of justification with regard to the crime, turn your consideration to the lesser included offense of manslaughter in the first degree. "MANSLAUGHTER IN THE FIRST DEGREE _ _ "—If your find the defendant guilty of manslaughter in the first degree, do not consider any further lesser included offense under this count of the indictment. "—If you find the defendant not guilty of manslaughter in the first degree because the People, despite having proven all of the elements of the crime, have failed to disprove justification, then you will also return a not guilty verdict as to any further lesser included offense under this count of the indictment. "—If you find the defendant not guilty of manslaughter in — 502 — the first degree because the People have failed to prove the elements of the crime, you will, without considering the issue of justification as to such crime, turn your consideration to the lesser included offense of manslaughter in the second degree. "manslaughter in the second degree _ _ "count 2 "murder in the second degree (felony murder)”. _ _ For the following reasons, it must be concluded that the submission of this verdict sheet constituted error, that this error has been preserved for appellate review as a matter of law, and that application of the harmless error doctrine is precluded, so that the presence of this error requires reversal. Pursuant to the terms of the Criminal Procedure Law, a deliberating jury may be provided with trial exhibits (see, CPL 310.20 [1]) or with "[a] written list prepared by the court containing the offenses submitted * * * and the possible verdicts thereon” (CPL 310.20 [2]). A deliberating jury may also be provided with the "text of any statute” (CPL 310.30), provided that the defendant consents. In a series of cases, the Court of Appeals has held that the error committed when a trial court allows a deliberating jury to review written documents not specifically encompassed by these statutes (see, CPL 310.20, 310.30) can never be considered harmless, irrespective of the quantity of the evidence (see, People v Taylor, 76 NY2d 873; People v Nimmons, 72 NY2d 830; People v Sanders, 70 NY2d 837; People v Brooks, 70 NY2d 896; People v Owens, 69 NY2d 585; cf., People v Moore, 71 NY2d 684). The only exception to this rule is reflected in People v Moore (supra,), where it was held to be harmless error for a trial court to submit a portion of the indictment to the jury in response to a specific request (cf., People v Durant, 153 AD2d 757). In the few years since the Court of Appeals announced a rule of automatic reversal in People v Nimmons (supra) and its immediate predecessors, this court has been compelled to overturn at least 15 convictions (see, People v Hedge, 162 AD2d 467; People v Rodriguez, 159 AD2d 736; People v Livingston, 157 AD2d 859; People v Bollander, 156 AD2d 456; People v Taylor, 154 AD2d 634, affd 76 NY2d 873, supra; People v Durant, 153 AD2d 757, supra; People v Ashlay, 152 AD2d 675; People v Alexander, 152 AD2d 587; People v Pugh, 150 AD2d — 503 — 734; People v Crosby, 150 AD2d 478; People v King, 150 AD2d 497; People v Conners, 149 AD2d 722; People v Jackson, 148 AD2d 750; People v Gillispie, 144 AD2d 482; People v Valle, 143 AD2d 160). The First Department has also deemed it to be "well established that a violation of this rule * * * requires reversal irrespective of prejudice” (People v Ocasio, 161 AD2d 526; see also, People v Pridgen, 159 AD2d 330). But for the rule of "automatic reversal” announced in cases such as Nimmons (supra), Sanders (supra), and Owens (supra), many of these convictions would certainly have been affirmed on the basis of the harmless error doctrine. We cannot conclude, as do our dissenting colleagues, that the harmless error doctrine which was ruled inapplicable by the Court of Appeals in cases such as Nimmons (supra) may nevertheless be applied here. This argument rests on the premise that certain violations of CPL 310.20 may be considered harmless, while other violations of CPL 310.20 (e.g., those under review by the Court of Appeals in Nimmons [supra], Sanders [supra] Brooks [supra] and Owens, [supra]) may not be considered harmless. This premise is itself of dubious validity, since the Court of Appeals has recognized only one, narrow exception to the rule of automatic reversal announced in cases such as Nimmons (supra), and this exception (see, People v Moore, 71 NY2d 684, supra) is clearly inapplicable here. On the contrary, the Court of Appeals, in Nimmons (supra), Sanders (supra), and Brooks (supra), has consistently adhered to its earlier declaration in People v Owens that "the distribution of written instructions to the jury is not expressly authorized by law, and the error in such submissions cannot be deemed harmless” (People v Owens, 69 NY2d 585, 591-592, supra [emphasis supplied]). The document submitted to the jury in the present case indubitably contained "written instructions”, the submission of which was, in the language of the Court of Appeals, "not expressly authorized by law” (People v Owens, supra, at 591-592). The Court of Appeals has unequivocally ruled that the error inherent in the submission of such a document "cannot be deemed harmless” (People v Owens, supra, at 592). We are thus bound to apply the holding of the Court of Appeals to the facts of this case. Our dissenting colleagues rely on People v Melendez (160 AD2d 739) in order to support the view that some violations of CPL 310.20 may be considered harmless. We do not consider Melendez to be controlling. The document submitted by the trial court in Melendez was, in the words of this court, a — 504 — "neutral list’ of exhibits” (People v Melendez, supra, at 740). There is an obvious distinction which can be drawn between a list of exhibits, on the one hand, and "written instructions”, on the other. The present case clearly involves the latter type of verdict sheet, and we are compelled to respect the unequivocal language of the Court of Appeals in the Owens case (supra), and to conclude that this error, unlike the error in the Melendez case, cannot be considered harmless. It must also be emphasized that the "written instructions” given to the jury in this case were not entirely "neutral” (cf., People v Melendez, supra). The text of the verdict sheet mentions only one defense: justification. Any juror who might have employed this verdict sheet as his sole, or even as his principal source of guidance during deliberations might well have concluded that the defendant’s other defenses (e.g., intoxication) were invalid or unworthy of consideration. The potential for prejudice is thus clear, even if its likelihood is not. It must be remembered that the rule of automatic reversal has been applied even in cases where nothing more innocuous than the text of the relevant statute was given to the jury without the defendant’s consent (see, CPL 310.30; People v Sanders, 70 NY2d 837, supra; People v Owens, 69 NY2d 585, supra). In the present case, the verdict sheet mentioned one defense to the exclusion of others, and actually instructed the jurors on how to proceed from one count to the next—a process that is often critical in a jury’s resolution of a case (see generally, People v Boettcher, 69 NY2d 174). Thus, even if we were to accept the view, propounded by our dissenting colleagues, that certain CPL 310.20 violations may, consistent with Court of Appeals precedent, be treated as "harmless”, we would nevertheless consider the present case to be ill-suited to that sort of harmless error analysis. The verdict sheet used in this case was, in fact, potentially if not actually prejudicial. To say that the submission of this potentially prejudicial verdict sheet may be viewed as harmless, because there is little probability that it was actually prejudicial, would be to apply the harmless error doctrine in an area where the Court of Appeals has precluded its application. This we are not free to do. We are aware that the Fourth Department has recently reached a contrary result (see, People v Campbell, 170 AD2d 982). For the reasons outlined above, we decline to follow that decision. We have reviewed the defendant’s remaining contentions and find them to be without merit. — 505 — The judgment appealed from is reversed, on the law, and a new trial is ordered. Bracken, Harwood and Balletta, JJ., concur.