by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

A judge must respond to a jury's questions in a way that meaningfully answers the question and does not add new principles of law to those they originally received.  (Some practice tips at the end.) 
  
In People v. Wood, 163 AD3d 1485, 2018 Slip Op 05422, (4th Dept July 25, 2018),  the Fourth Department considered whether the trial court adequately responded to the jury's questions about intent and knowledge.  Defendant was accused of brandishing a weapon in a restaurant.  He was arrested shortly after the incident and found in possession of a loaded firearm.  (Interestingly, and unfortunately, defendant's testimony and defense seem to have made out all of the elements of one of the charges in the indictment - CPW2 possession of a loaded firearm under Penal Law 265.03[3] But I digress...). 

During deliberations the jury sent the court a note requesting clarification of the terms "intent" and "unlawfully," and asked whether they applied to when the defendant emerged from the vehicle, when he pulled the weapon from his pants, or at any time he was in possession of the gun.  They also asked for a readback about the interaction in the restaurant.  The prosecutor then asked, for the first time, for an instruction on the presumption (or as Bradley would remind us, permissive inference) that one in unlawful possession of a loaded firearm is presumed to intend to use it unlawfully against another.  The defense objected, noting that the prosecutor had never previously requested the instruction, the Court should not be instructing on principles of law for the first time during deliberations, and that counsel did not have an opportunity to respond to the new instruction.  The Court overruled the objections and read the additional instruction.  Within two minutes the jury had a verdict. 

The Appellate Division in Wood wrote: 

The Criminal Procedure Law allows the jury to ask the court to clarify an instruction "[a]t any time during its deliberation" (CPL 310.30). Upon receiving such a request, the court must " perform the delicate operation of fashioning a response which meaningfully answer[s] the jury's inquiry while at the same time working no prejudice to the defendant' " (People v Brewer, 118 AD3d 1409, 1413 [4th Dept 2014], lv denied 24 NY3d 1082 [2014]; see People v Miller, 288 AD2d 698, 700 [3d Dept 2001]). "[T]he court has significant discretion in determining the proper scope and nature of the response" (People v Taylor, 26 NY3d 217, 224 [2015]). In determining whether the court's response constituted an abuse of discretion, " [t]he factors to be evaluated are the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant' " (id., quoting People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]).We conclude that the court failed in its duty to fashion a response that meaningfully answered the jury's question and to avoid prejudicing defendant. The jury notes demonstrate that the jury had thoughtful questions about intent and was carefully weighing the conflicting testimony of the witnesses to determine whether and when defendant in fact formed the intent to use the gun unlawfully against another. The court, however, instructed the jury that defendant's possession of the gun was presumptive evidence of intent to use it unlawfully, and that the jury may not need or want to consider additional evidence in light of that presumption. That answer was not responsive to either note. Moreover, the court's response prejudiced defendant by introducing new principles of law after summations, when defense counsel no longer had the opportunity to argue that, despite the presumption, the evidence established that defendant lacked the requisite intent (see Brewer, 118 AD3d at 1413; see generally People v Sierra, 231 AD2d 907, 908 [4th Dept 1996]).

So there are  several takeaways from this case.  First, don't have your client admit to all of the elements of one of the charges in an indictment if the charges are all at the same level of severity and relate to the same incident.  It may be a defense to admit to lower level charges, or charges relating to one non-transactional incident, but to admit to a C violent while fighting another subdivision of the charge may lead you to win the battle but lose the war, as happened here.

Second, if the jury asks a question, make sure you have the opportunity to read the note or have the entire note read to you.  Ask the Court to mark it and make it part of the record if the Court is not doing that.  Consider whether the Court's proposed response adequately addresses the question.  If it does not, object.  If the question involves readback, make sure the cross is included, and that all of the readback addressing the topic is provided to the jury - I have had many trials where the Court believed some of the testimony was responsive and was not intending to read the rest, or only asked the stenographer to read part.  Sometimes judges rely entirely on the stenographer's interpretation of what testimony is responsive.  Object if the cross or a part of the readback is left out (unless that part hurts you, in which case perhaps you rely on the Court's recollection and selection).  If there are new instructions or legal principles included in the Court's response, and they are harmful to your case, object, citing this case, and noting that the defense did not have an opportunity to respond to or address those instructions during the trial, and this deprives your client of the rights to due process and a fair trial as protected by the New York State and United States constitutions.  

As an aside - you do not have to assume that the Criminal Jury Instructions must be read verbatim.  They are suggestions, and you should consider offering your own instructions when your case warrants it.  If you do, and the Court rejects your  instruction, have it marked and made part of the record so it can be reviewed on appeal.  Or at least make sure your verbal request is on the record.

Jury instructions are an important part of the case, and much as we would like to take that time for a well deserved nap, we have to be vigilant and precise as we listen, object, consider whether proposed responses are accurate and complete, and make additional requests.