People v. Flores

153 A.D.3d 182

62 N.Y.S.3d 68

The PEOPLE, etc., respondent,

v.Alex FLORES, Lucio Ramirez, Benigno Aguilar, and Emmanuel Flores, appellants.

2010-07773, 2010-08439, 2010-08768, 2010-08771. Ind. No. 09-605.

Supreme Court, Appellate Division, Second Department, New York.

July 5, 2017.

Leonard J. Levenson, New York, NY, for appellants.

David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.

LEVENTHAL, J.

In these consolidated appeals, where one brief was filed on behalf of all four defendants, several issues are presented relating to the empaneling of an anonymous jury. We hold that the trial court's empaneling of an anonymous jury, in violation of CPL 270.15, deprived the defendants of their right to a fair trial, and that error cannot be deemed harmless. Accordingly, we reverse the judgments of conviction and order a new trial.

Background

The defendants, having been accused of multiple crimes, including gang assault in the first degree, were tried together. Before jury selection began, the attorneys for the defendants learned that the County Court intended to withhold the names of the prospective jurors, and instead identify them by only numbers. The attorney for the defendant Emmanuel Flores objected to the procedure, stating, in part:

"The Court, I believe, intends today to only work from numbers for jurors, like anonymous jurors, rather than giving their names, and on the record I wish to object to the nature of that proceeding, given the fact that this is a gang assault case. The

Court has allowed under Ventimeglia [ People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 ] evidence of gang membership somehow impacting on it, and the jurors are going to be led to believe before we even get to the point of taking testimony that there is some big secret event that they would have to be protected from. And I highly object to it. I find it irregular. Thank you."

The attorney for the defendant Lucio Ramirez joined in the oral application. Ramirez's attorney proposed, "[a]s a compromise," that the names of the prospective jurors be made available to the attorneys, but that the attorneys not publicly disclose them.

The other two defense attorneys also joined in the application. The attorney for the defendant Benigno Aguilar suggested that the court could come up with a way of revealing the names of the prospective jurors only to the attorneys. Additionally, Aguilar's attorney urged, "it's going to highlight for ... these jurors, that this is a gang case in which they have to be concerned for their safety. That has not been shown, and I would object."

The County Court responded:

"There is no constitutional right for the attorneys of the defendants or for the defendants themselves to actually know the names of the jurors. I am aware of no cases that prohibit anything like that. It's done almost as a matter of course in many jurisdictions.

"Again, I'm not going to provide the names to counsel since they then have a duty to provide them to their clients since they are not going to be able to withhold anything from their clients.

"In any event, the numbers will stand, and your objection is part of the record. So noted."

In further discussion, the County Court stated, "[t]his is a tempest in a teapot. There is no constitutional right to have the names of the jury members published. There is none, and in many jurisdictions it's done just as a matter of course." The court added, "I think we're probably going to do it in every trial that we're going to do."

Later, the attorney for Emmanuel Flores argued that an anonymous jury was not permitted under "the statute" (at a later point, that attorney referred to "270.15"), but the County Court declined to change its prior determination. Thereafter, prospective jurors, and, subsequently, sworn jurors, were identified by assigned numbers and not by their names.

Following a lunch recess, the County Court stated, in part:

"There was an objection with regard to this having numbers for the jury. I just want to be real clear about this because when I told you before I've been doing this for almost 22 years now ...

"I know the last five years an increasing number of jurors told me that A, they feel uncomfortable walking in and out of the courtroom to their cars; B, they feel really uncomfortable giving their names, especially in violent felonies. And after speaking to [the Commissioner of Jurors] about it, she told me that's exactly the same feedback she gets, that jurors are uncomfortable about those two things, especially having their names in the courtroom.

"Now, my intent is to get as many jurors as we can possibly get to serve. And I think that because of that, I think that it limits the number of jurors that we get because they don't want to go through that worry and stress ... about this because these are violent felonies. You know and I know we deal with this stuff every day, jurors don't. And that's the reason. It's not specifically this case, but that's the reason it's happening more and more and more often.

"So that's the reason."

The attorney for Emmanuel Flores said that although he "respect[ed] the decision," he requested that the court explain its reason to the prospective jurors so that the prospective jurors would not think that there was some other reason that their names were not being used.

The County Court responded that prospective jurors would not know that, usually, their names would be revealed, and that raising the issue might be prejudicial to the defendants. The court said that it would give an instruction about not using the names of the prospective jurors "[i]f all four of you [defense attorneys] agree to that ... but I won't do it over anybody's objection." The attorney for Ramirez objected to the instruction and renewed his "objection to the anonymous procedure."

The court said that, since not all the defense attorneys consented, it would not give an instruction.

In continued discussion, the prosecutor and the attorney for the defendant Emmanuel Flores cited to trial court decisions holding that anonymous juries were impermissible. The County Court commented that it found no controlling authority holding that anonymous juries were impermissible. The court stated that it knew that anonymous juries had been used in the past.

The next day, Aguilar's attorney argued that an anonymous jury would preclude the attorneys from speaking with the jurors following trial in an effort to impeach the verdict "if it comes to that." The County Court stated that it would adhere to its determination. Aguilar's attorney requested that the court maintain the names of the selected jurors. The court agreed to the request and, when Ramirez's attorney joined in the request, the court responded, "I assume all of you do."

Jurors were sworn on a Friday. On the next court date, a juror brought a concern to the court's attention. The juror, under oath, said that as she walked to her car parked in the court parking lot on Friday afternoon, one of the defendants, who was in the presence of approximately eight other people, stood in front of her car and stared at her as she was "going into the car." Noticing this defendant staring at her, the juror felt "[u]ncomfortable, a little intimidated." The defendant was Aguilar, who was the only defendant free on bail.

The County Court excused that juror from the jury. The prosecutor made an oral application to revoke Aguilar's bail. The prosecutor argued that there was "clear intimidation of a juror." In denying the prosecutor's application, the court commented, in part, "[b]ecause the jury parking was not segregated, I don't know where this [defendant's] car was. I don't know whether he was at his car, he was near his car, I just don't know."

During the course of the trial, the People presented evidence that the defendants were part of a group that surrounded the victim, kicked him, hit him with weapons, and stabbed him. Allegedly, the defendants were members of a gang and the victim was a member of a rival gang.

The jury found each defendant guilty of multiple crimes including gang assault in the first degree. The County Court rendered judgments of conviction. Each defendant appeals from his respective judgment of conviction. This Court, by decision and order on motion, inter alia, granted that branch of the defendants' motion which was to consolidate the appeals. We reverse the judgments of conviction and order a new trial.

The County Court Erred in Empaneling an Anonymous Jury

The defendants argue that the County Court contravened CPL 270.15(1)(a) by empaneling an anonymous jury. The People respond that the defendants' contention is unpreserved for appellate review, and that, in any event, empaneling an anonymous jury was proper under the circumstances of this case.

Initially, we reject the People's claim that the issue of whether the County Court properly empaneled an anonymous jury is unpreserved for appellate review. Before jury selection began, the attorney for Emmanuel Flores objected to the court empaneling an anonymous jury, stating, in part, that this was a gang assault case, that the court ruled that it would permit evidence relating to gang membership, and that "the jurors are going to be led to believe before we even get to the point of taking testimony that there is some big secret event that they would have to be protected from." The other defense attorneys joined in the objection. Aguilar's attorney urged, "it's going to highlight for this, these jurors, that this is a gang case in which they have to be concerned for their safety. That has not been shown, and I would object." Thus, the defense attorneys registered specific protests to the court empaneling an anonymous jury at a time when the court had an opportunity to change its ruling. Under the circumstances, the defendants' contention is preserved for appellate...