New York Court of Appeals – In People v. Rivera, No. 117 (June 10, 2014), the Court of Appeals determined that a brief colloquy in the robing room between the trial judge and a juror should not have taken place outside the presence of the defendant, even with the consent of counsel. Because it did, the Court of Appeals affirmed the Appellate Division’s reversal of defendant’s conviction for second-degree criminal possession of a weapon.
Anner Rivera shot and killed Andres Garcia after Garcia shot Rivera’s friend several times. Rivera was indicted for intentional murder and weapons possession, but claimed that he shot Garcia in self defense. The trial court instructed the jury on the defense of justification on each count of the indictment. After deliberating for more than a day, the jury sent a note seeking an explanation of certain terms defined in the jury instructions. The court advised the jury and directed it to continue deliberations.
Shortly thereafter, juror number 11 requested to speak with the court. The judge agreed to hear from the juror in his robing room on notice to the prosecutor and counsel, but outside their presence and on the record. It is not clear whether the defendant was aware that his counsel consented to this procedure. After a brief colloquy between the judge and juror, the court summarized the conversation in the presence of counsel and (after realizing the defendant was not present and returning him to the courtroom) the defendant. Rivera was acquitted of murder and manslaughter, but convicted of second-degree possession of a weapon. The Appellate Division reversed the conviction, finding that the colloquy was improper.
The Court of Appeals explained that a defendant’s constitutional right to be present at all material phases of a trial includes the right to be present during jury instructions. This right is derived from case law, see People v. Harris, 76 N.Y. 2d 810, 812 (1990); People v. Mehmedi, 69 N.Y. 2d 759, 760 (1987); and incorporated into the Criminal Procedure Law (CPL) at section 310.30. Under CPL 310.30, whenever a deliberating jury requests additional guidance or trial evidence, “or any other matter relevant to its consideration of the case,” the court should direct the jury to be brought back into the courtroom and, after notice to both sides, should give the information or instruction as it deems proper. In the eyes of the Court of Appeals, the fact that the trial court “cured” the initial defect of speaking with a juror outside the presence of the defendant was not sufficient to overcome the procedural error in the first instance.
The Court of Appeals relied on People v. Cain, 76 N.Y. 2d 119 (1990) to support its finding that the trial court committed procedural error. In Cain, a similar robing room conversation occurred, and the Court of Appeals reversed the defendant’s conviction because “the defendant had an absolute right to be present and therefore, the error ‘mandate[d] reversal’ without regard to whether any prejudice flowed and despite the presence and consent of defense counsel.” Decision p. 6 (citation omitted). The Court of Appeals rejected the dissent’s de mimimis argument, because CPL 310.30 is unequivocal about the defendant’s right to be present at crucial stages of the trial. Likewise, the Court of Appeals disagreed with the dissent that the conversation with juror number 11 was merely “ministerial” and therefore not prejudicial to the defendant. As a result, the Court of Appeals affirmed the Appellate Division and held that the defendant was entitled to a new trial.