THE TRIAL COURT ERRED AND VIOLATED CRIMINAL PROCEDURE LAW 310.10(2)S CONTINUOUS DELIBERATIONS MANDATE BY SUSPENDING JURY DELIBERATIONS FOR MORE THAN 24 HOURS WITHOUT MANIFEST NECESSITY.
The trial court erred when it violated the continuous deliberations mandate of Criminal Procedure Law 310.10(2) and suspended jury deliberations for more than 24 hours where there was no manifest necessity and no intervening weekend or holiday. The lower courts violation of this rule violated Criminal Procedure Law and undermined the validity of the verdict when it suspended jury deliberations for more than 24 hours. Additionally, the trial courts error constituted a mode of proceedings error because it created variance with a basic mandate of law that irreparably tainted the entire trial. The conviction should therefore be vacated and this case remanded to the trial court for a new trial.
The Continuous Deliberations Requirement Was Violated By The Trial Court
Criminal Procedure Law 310.10(2) contains a continuous deliberations mandate and states in pertinent part that At any time after the jury has been charged or commenced its deliberations, and after notice to the parties and affording such parties an opportunity to be heard on the record outside of the presence of the jury, the court may declare the deliberations to be in recess and may thereupon direct the jury to suspend its deliberations and to separate for a reasonable period of time to be specified by the court, not to exceed twenty-four hours, except that in the case of a Saturday, Sunday or holiday, such separation may extend beyond such twenty-four hour period.
The Legislature, when it changed the New York deliberation paradigm from one of sequestration to one of continued deliberation, was clearly concerned with the potential impact of outside influences on a jury’s ability to render verdicts fairly. To minimize the possibility of external influences, the Legislature was explicit in its mandate of no more than a 24-hour separation, except for weekends and holidays. People v. Capellan, 17 Misc. 3d 337, 343, 844 N.Y.S.2d 578, 583 (Sup. Ct. 2007)
Criminal Procedure Law 310.10(2) was added by New York Laws 1995, c. 83, 290 (Chapter 83), effective July 5, 1995 to convert the jury deliberation process in New York for most felonies from one of sequestration to one of continuous deliberation, with exceptions, for a period to sunset in 2001. See Chapter 83, 62(17). Prior to Chapter 83, New York had no requirement of continuous deliberation, but required that deliberating jurors be sequestered and continually supervised, even when a juror had to be hospitalized. See, e.g., People v. Shanholtzer, 119 A.D.2d 537, 501 N.Y.S.2d 665 (1st Dept.1986).
The legislative purpose of Chapter 83 and a legislative guide to its interpretation may be found in the former CPL 310.10(3) which was also added by Chapter 83, which required the Office of Court Administration to report to the Legislature on the impact of separation of jurors on how the risks of separation would negatively impact on the integrity of jury deliberations. Finding that the change worked well, the Legislature in 2001 extended the change from sequestration to continuous deliberations and made it permanent and deleted the provision of CPL 310.10(3) as the study mandated by such section had been completed. L. 2001, c. 47, 2. See Senate, Memo. in Support, 2001 McKinney’s Session Laws 1292. People v. Capellan, 17 Misc. 3d 337, 342, 844 N.Y.S.2d 578, 582 (Sup. Ct. 2007).
In this case the trial court ceased the jury deliberations at 4:30pm on October 15, 2013. The jury had been deliberating for only two hours total at that point. The trial court stated to the jury on October 15, 2013 as follows: Youll have to cease your deliberations for the day. Tomorrow is my conference day. So we do not meet. And on Thursday morning which I knew was a prearranged scheduling conflict, Im going to ask you to come in at 11:30 to resume your deliberations. (Transcript Pg. 331)
After only two hours of deliberations on Tuesday October 15, 2013, at 4:30pm the trial court suspended the jurys deliberations and asked them to come back to deliberate on October 17, 2013 at 11:30am, more than 24 hours later. The trial courts reason for suspending deliberations and acting outside the continuous deliberations mandate was because the court had a conference day. The trial court could have had the jury deliberating while it conducted its conferences, as many courts employ this practice. There was no manifest necessity for the suspension of jury deliberations for more than 24 hours.
The trial courts actions were clearly at odds with the continuous deliberations mandate of Criminal Procedure Law 310.10(2).?? Under Criminal Procedure Law 280.10, the court must declare a mistrial and order a new trial of the indictment upon the courts own motion when it is physically impossible to proceed with the trial in conformity with the law.
The trial courts actions in this case violated the continuous deliberations mandate and, as New York Courts have consistently held, undermined the validity of the verdict. See People v. Martinez, 37 Misc.3d 1223(A) (2012) citing People v. Taylor, 32 Misc.3d 546 (Sup. Ct. Kings 2011). The trial court may only act outside of the continuous deliberations rule after taking all the circumstances into consideration and finding that there is a manifest necessity for suspending deliberations. People v. Martinez, 37 Misc.3d 1223(A) citing to United States v. Perez, 22 U.S. 579 (9 Wheat, 1824).
In this case the trial court did not take all circumstances into consideration, and there was no manifest necessity for the suspension of deliberations. There was simply a conference day, and the court could easily have had the jury deliberate while it conducted its conferences. The trial courts actions undermined the validity of the verdict and was in direct conflict with the continuous deliberations rule; the verdict should be vacated by this Court, and the case remanded for a new trial.
Mode of Proceedings Error Committed By The Trial Court
The term mode?of?proceedings?error?more precisely an error that affects the organization of the court or the?mode?of?proceedings?prescribed by law (People v. Patterson,?39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898 ?)?is used to identify a very narrow exception to the rule that errors made by a trial court may not be raised on appeal unless they are preserved at trial by timely objection (id.). A?mode?of?proceedings?error is found where a procedure is at such basic variance with the mandate of law that the entire trial is irreparably tainted (id.?at 296, 383 N.Y.S.2d 573, 347 N.E.2d 898). As was said in?People v. Becoats,?17 N.Y.3d 643, 651, 934 N.Y.S.2d 737, 958 N.E.2d 865 (2011): Not every procedural misstep in a criminal case is a?mode?of?proceedings?error. That term is reserved for the most fundamental flaws. People v. Walston, 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 (2014).
Some examples of mode of proceeding errors found by the New York Court of Appeals are analogous in their effect and ramification to this case: trial by a jury of less than 12 Cancemi v. People,?18 N.Y. 128, 135?139 (1858), prosecution for an infamous crime in the absence of indictment by a grand jury People ex rel. Battista v. Christian,249 N.Y. 314, 318?321, 164 N.E. 111 (1928), shifting the burden of proof to the defendant Patterson,?39 N.Y.2d at 296, 383 N.Y.S.2d 573, 347 N.E.2d 898, and abdicating the judicial function to a law secretary People v. Ahmed,?66 N.Y.2d 307, 310?311, 496 N.Y.S.2d 984, 487 N.E.2d 894 (1985); failure of trial court to disclose jury note in its entirety to defense counsel People v. ORama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991); failure to provide meaningful notice to counsel regarding deliberating jurys note and trial courts failure to provide meaningful response to the deliberating jurys note People v. Walston, 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 (2014).
In this case the mode of proceedings error was the trial courts suspension of jury deliberations for more than 24 hours for no necessary reason. The cessation of deliberations, as had been consistently held in New York, undermines the validity of the jurys verdict. In this case the trial court suspended deliberations because it had a conference day. Most trial courts allow the jury to deliberate as they are conducting their conferences; the deliberations are conducted in a totally separate and private room by the jury, and there is no possibility that court conferences would interfere with deliberations. In this instance the court could have accommodated any question by the deliberating jury by pausing its conferences momentarily. This is, in fact, the preferred method of dealing with deliberating juries by most courts.
The trial court committed a mode of proceedings error by suspending jury deliberations for more than 24 hours in direct violation of Criminal Procedure Law 310.10, and the verdict must be vacated and this case remanded to the lower court for a new trial.