Opinion
3044/06.
Decided January 26, 2011.
Alice Fontier, Esq., Joshua Dratel, P.C.M, New York, NY, for the Defendant, Luis Ortiz.
Diego Hernandez, Assistant District Attorney, Bronx, NY, for the People.
Defendant, by Notice of Motion dated October 8, 2010, moves for an order pursuant to CPL § 330.30 (1) to set aside the jury verdict rendered on September 21, 2010. The People filed opposition papers on December 3, 2010.
Procedural History
Defendant was charged by indictment with Burglary in the First Degree (PL § 140.30 (3)); Burglary in the Second Degree (PL § 140. 25) (2 cts); Burglary in the Third Degree (PL § 140.20); Robbery in the First Degree (PL § 160.15 (3)); Robbery in the Third Degree (PL § 160.05); Grand Larceny in the Fourth Degree (PL § 155.30 (5)); Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01(2)); and Petit Larceny (PL § 155.25).
It was alleged that on or about July 20, 2006, defendant unlawfully entered the premises of Manuel Valenzuela, placed a razor blade to the neck of Para Nunez and forcibly took a chain from the neck of Mr. Valenzuela. A trial was commenced on September 10, 2007. Prior to the submission of the charges to the jury, the People dismissed the charges of Burglary in the Second Degree (PL § 140.25(1)(c)), Burglary in the Third Degree (PL § 140.20), Robbery in the Third Degree (PL § 160.05), Grand Larceny in the Fourth Degree (PL § 155.30 (5)), Criminal Possession of a Weapon the Fourth Degree (PL § 265.01(2)) and Petit Larceny (PL § 155.25). The jury found the defendant guilty of Burglary in the Second Degree (PL § 140.25(2)) and acquitted on the charges of Burglary in the First Degree (PL § 140.30) and Robbery in the First Degree (PL § 160.15(3)). Defendant appealed the conviction and on January 21, 2010, the Appellate Division First Department reversed the conviction and held that the defendant was deprived of a fair trial by the prosecutor's cross-examination and summation errors. A new trial was commenced on September 7, 2010 on the sole charge of Burglary in the Second Degree. That charge was submitted to the jury and on September 21, 2010, the jury returned a verdict of guilty.
The Court ruled that the defendant was deprived of a fair trial due to the prosecutor's cross-examination and summation errors. Specifically, the Court found that the prosecutor's cross-examination of defendant as to his prior convictions and his girlfriend was improper.
Discussion
Defendant moves to set aside the verdict on two (2) grounds: (1) the Court erred in not suppressing or more succinctly, in not precluding testimony as to defendant's use or threatened use of a dangerous instrument, i.e., a razor blade, in that the 2007 jury verdict acquitting defendant of Robbery in the First Degree and Burglary in the First Degree was a final judgment as to the issue of the use or threatened use of a dangerous instrument and therefore the People were collaterally estopped from relitigating the issue; and (2) the Court erred in not granting a mistrial as defendant was deprived of his Sixth Amendment right to effective assistance of counsel when counsel became a witness in the case and the Court denied counsel's application to withdraw.
CPL § 330.30 (1) states the following:
At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof, upon any ground appearing in the record which, if raised upon an appeal from a prospective judgement of conviction, would require a reversal or modification of the judgement as a matter of law by an appellate court. That statute permits a trial court to set aside or modify a verdict on any ground which would require reversal or modification, as a matter of law, by an appellate court.
Collateral Estoppel
The doctrine of collateral estoppel while normally reserved for civil litigation does have some applicability in criminal cases. As was noted in People v. Goodman, 69 NY2d 32, 38 (1986), before collateral estoppel may be applied in a subsequent criminal case, there must be an identity of parties; identity of issues; a final and valid prior judgment; and a full and fair opportunity to litigate the prior determination. See e.g. People v. Aguilera, 82 NY2d 23 (1993); People v. Acevedo, 69 NY2d 478 (1987).
Defendant argues that the jury verdict in the 2007 trial was a final judgment on the question of whether defendant used or threatened the use of a dangerous instrument during the commission of the offense. According to defendant, the jury's finding of not guilty on the charges of Burglary in the First Degree and Robbery in the First Degree, while finding defendant guilty of Burglary in the Second Degree, necessarily means that the jury found that defendant did not use or threaten the use of a dangerous instrument, specifically a razor blade, during the commission of the offense on July 20, 2006. Thus, according to defendant, the People were precluded by the doctrine of collateral estoppel from introducing any evidence of his possession, use, or threatened use of a dangerous instrument. This Court disagrees.
The acquittal on the charges of Burglary in the First degree and Robbery in the First Degree is not synonymous with a finding that there was no use or threatened use of the razor blade. There is no indication and it cannot be inferred or speculated that an acquittal on those charges necessarily means that the jury made a final judgment as to whether the defendant used or threatened the use of weapon.
PL § 140.30 (3) states that a person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime uses or threatens the immediate use of a dangerous instrument.
PL § 160.15 (3) states that a person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime uses or threatens the immediate use of a dangerous instrument.
The testimony elicited at trial from the People's witnesses was that the defendant forced his way into Manuel Valenzuela's apartment as Para Nunez and Mr. Valenzuela were entering the apartment, held a razor blade to the neck of Para Nunez and stated that if Mr. Valenzuela did not give him money and jewelry he would cut her neck. The defendant testified that he and Mr. Valenzuela had a verbal dispute after Mr. Valenzuela made rude remarks to a female who had accompanied defendant, he ultimately struck Mr. Valenzuela, they fought and at some point Mr. Valenzuela threatened him with a kitchen knife. Based upon this testimony there are numerous reasons as to why the jury may have acquitted on those two charges and not on the charge of Burglary in the Second degree. They may have concluded that the defendant did not possess a dangerous instrument when effecting entry or while in the dwelling or during the immediate flight therefrom. There may have been a finding that the defendant did not "possess" a dangerous instrument as that term was defined for them. The point is that we cannot and should not speculate as to the jury's mental process. Such speculation is inappropriate. People v. Tucker, 55 NY2d 1 (1981). In Tucker, the Court of Appeals reasoned that the proper review was that of the jury charge and not a review of the record that considered all of the evidence to discover the jury's determination.
There can be no finding that the jury reached a final judgment with respect to the issue of the use or threatened use of a dangerous instrument. While the defendant was charged with Criminal Possession of a Weapon, that charge was never submitted to the jury as the Court granted the People's motion to dismiss that charge. If in fact the jury had considered that charge and had acquitted on that charge then there may be some validity to defendant's argument that the jury determined that the defendant was not in possession of the razor blade. However, as this was not the case, the doctrine of collateral estoppel is inapplicable.
Defendant also argues that the People should have been precluded from introducing testimony as to his alleged possession of the razor blade as it was unduly prejudicial and was not an element of the charge of Burglary in the Second Degree. PL § 140.25(2) states that a person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when the building is a dwelling.
The People were required to prove beyond a reasonable doubt that on or about July 20, 2006, in the county of the Bronx, the defendant, Luis Ortiz, unlawfully entered a building located at 1663 Eastburn Avenue; that the defendant did so knowingly; that the defendant did so with the intent to commit a crime inside the building; and that the building was a dwelling.
Thus the possession of a razor blade was an essential, material issue which related directly to the jury's determination upon the defendant's intent to commit a crime within the premises. The alleged possession was relevant and probative as to whether the defendant intended to commit a crime when he entered the location. See e.g. People v. Rodriguez , 68 AD3d 1351 (3d Dept 2009), lv denied 14 NY3d 8 (2010); People v. Sullivan, 300 AD2d 689 (3d Dept 2002), lv denied 100 NY2d 587 (2003).
The alleged possession of the razor blade by the defendant was also relevant and germane to the narrative of the witnesses' testimony as to exactly what occurred. The alleged possession of the razor blade by the defendant explained the actions or inactions of the complainants.
As such, defendant's motion to set aside the verdict on the ground that the People were collaterally estopped from introducing testimony regarding the use, threatened use or possession of a razor blade by the defendant is denied.
Denial of Defense Counsel's Application to Withdraw During Trial and for Declarationof a Mistrial
Defendant testified on his own behalf at trial. In sum and substance, he testified that on July 20, 2006, he and a female friend went to 1663 Eastburn Avenue in Bronx County, looking for a room for him to rent. After an oral argument with Mr. Valenzuela regarding the female, defendant slapped Mr. Valenzuela. A physical altercation then ensued, during which defendant and Mr. Valenzuela stumbled into the apartment. While they were fighting in the apartment, Mr. Valenzuela grabbed a kitchen knife and lunged at defendant with the knife. Defendant denied having been in possession of a razor blade or knife. Following his testimony, the assistant district attorney requested a conference outside the presence of the jury. He informed the Court that based upon the defendant's testimony he intended to impeach the defendant by presenting him with a statement made by his current trial attorney who also represented him at his criminal court arraignment on July 21, 2006. The assistant district attorney presented the minutes of the arraignment proceeding which state the following:
COUNSEL: Your Honor, my understanding of the events from Mr. Ortiz is vastly different. I believe Mr. Ortiz was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, and at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belongs to the people who lived there. TT at 486.
The Court granted the People's application to question the defendant regarding the statement, noting that counsel's statements regarding the incident were attributed by her to the defendant and as such was proper impeachment. People v. Moye , 11 AD3d 212 (2004), People v. Brown, 98 NY2d 226 (2002). As was made clear in Moye, an attorney's statements in arraignments relaying information supplied by a defendant for the purpose of obtaining favorable rulings on matters such as bail are admissible for impeachment purposes. Further, the confrontation clause does not apply to such statements as they are not offered for the truth but rather are offered solely for impeachment purposes. Moye at 213.
The evening following the cross examination of the defendant, counsel notified the Court that she had reviewed her notes from July 2006 and that she had misstated the facts related by the defendant. According to counsel, defendant had not stated that the complaining witness had a razor blade. Instead, according to counsel, the defendant stated to her that the complaining witness had a kitchen knife. Counsel argued that these statements were consistent with his testimony at trial. As such, counsel argued that the only way to rebut the impeachment testimony was for her to testify at trial. Given that she was now a defense witness, she moved for her withdrawal and therefore the declaration of a mistrial. The Court denied the defense application.
Counsel argues that the cross examination of the defendant and her subsequent review of her notes placed her in the position of a necessary witness at trial. According to counsel acting as a witness on behalf of their own client is both unethical and ineffective. In support of her position, she cites the Code of Professional Responsibility Ethical Consideration 5-9, which states in part:
"If a lawyer is both counsel and witness the lawyer becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his or her own credibility."
Counsel argues that the practical effect of this rule is that it requires trial counsel to withdraw where it appears necessary for trial counsel to testify on behalf of, or against, her own client. See, also Price v. Price, 289 AD2d 11, 12 (1st Dept 2001); People v. Heber, 192 Misc 2d 412, 422 (Sup Ct, Kings County 2002).
The defendant argues that the Court misread the holding in People v. Paperno, 54 NY2d 295 (1981)and thus improperly denied the motion. Paperno addressed the situation where the defense moved for disqualification of the prosecutor prior to trial based upon an application that they may call the prosecutor as a witness due to his significant involvement at pre-trial stages. 54 NY2d at 295. In Paperno, the application came on the eve of trial and not the conclusion of trial as in this case. More importantly, however, the testimony of the prosecutor involved a material issue at trial. Here, the testimony by counsel would have been offered for the sole purpose of rebutting the attempts at impeachment by the People. Her proposed testimony went to the issue of the defendant's credibility and not a material issue. Counsel was not a witness to the incident nor did she possess necessary or material information as to the commission of the crime. Her testimony was solely to state that the statement told to her by the defendant differed from that which she attributed to him at his arraignment and was consistent with his testimony at trial. Her desire to testify was so that the defendant could confront her regarding her alleged misstatement. This was collateral and not material. Paperno, supra at 303, citing Fisher v. United States, 231 F2d 99 (9th Cir 1956); Gajewski v. United States, 321 F2d 261 (8th Cir 1963), cert denied 375 US 968 (1964); Hayes v. United States, 329 F2d 209 (8th Cir 1964), cert denied 375 US 968 (1964); United States v. Schwartzbaum, 527 F2d 249 (2d Cir 1975), cert denied 424 US 942 (1976); see also People v. Cannady, 243 AD2d 642, 663 (2d Dept 1997).
As was noted by the Court in denying counsel's application, the declaration of a mistrial is a drastic remedy and one that should be used sparingly. See e.g. People v. Ortiz, 54 NY2d 288, 292 (1981). In Ortiz, the Court stated that that the declaration of a mistrial is within the discretion of the trial court. 54 NY2d at 293. Here, the drastic remedy of a mistrial was not necessary to protect the defendant's rights. See e.g. People v. Grady , 67 AD3d 563 (1st Dept 2009); People v. Santiago, 52 NY2d 865 (1981).
In an attempt to accommodate the defense's desire to put before the jury the testimony that the defendant made certain statements to counsel, the Court gave counsel the option of having another attorney examine her for the sole purpose of eliciting that desired testimony or of counsel and the People entering into a stipulation which stated what the testimony would have been. Counsel opted for the latter and drafted a stipulation which was introduced into the evidence. The stipulation was as follows:
The Court contacted the counsel who had been co-counsel in the first trial, as she was familiar with the case as well as the defendant.
It is agreed by and between the parties that the below is an accurate transcription if the statements made by counsel at defendant's arraignment on July 21, 2006, to wit:
Counsel: "Your honor, my understanding of the events from Mr. Ortiz is vastly different. I believe Mr. Ortiz was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, and at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belonged to the people who live there.
It is further agreed by and between the parties that if counsel were to testify, she would state that the above statement referring to the razor blade at arraignments was incorrect in that Mr. Ortiz did not make the statement as set forth in the transcript.
Counsel would further state that Mr. Ortiz stated to her on July 21, 2006, that the complaining witness, had a kitchen knife. It is so stipulated and signed by counsel and the assistant district attorney.
The stipulation contained the testimony that counsel would have attempted to impart to the jury if she took the stand. It served the desired goal of counsel. Her credibility was never called into question and she was never questioned as to her ability to recall the statements made to her by the defendant or how or why she made the misstatements at defendant's arraignment. Counsel was never placed in the position of an unsworn witness or in the position of having to argue her own credibility. Most importantly, there was no prejudice to the defendant. As such, defendant's motion to set aside the verdict on the ground that the Court erred in not allowing his counsel to withdraw and to therefore declare a mistrial is denied. This opinion constitutes the decision, opinion and order of the Court.