People v. Flores , 153 A.D.3d 182 ( 2017 )

OPINION OF THE COURT

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 Ventimiglia [People v Ventimiglia, 52 NY2d 350 (1981)] 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 review (see CPL 470.05 [2]).

Turning to the issue of whether empaneling an anonymous jury contravened CPL 270.15 (1) (a), we begin by noting that a court, in interpreting a statute, should attempt to effectuate the intent of the legislature (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). The best evidence of the legislature’s intent is the text of the statute itself (see Matter of Theroux v Reilly, 1 NY3d 232, 239 [2003]). Where the statutory language is clear and unambiguous, a court should construe it so as to give effect to the plain meaning of the words used (see Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]).

CPL 270.15 (1) (a) provides, in part, “the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law.”

CPL 270.15 (1-a) provides:

“The court may for good cause shown, upon motion of either party or any affected person or upon its own initiative, issue a protective order for a stated period regulating disclosure of the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party. Such good cause shall exist where the court determines that there is a likelihood of bribery, jury tampering or of physical injury or harassment of the juror.”

Read together, these sections of CPL 270.15 prohibit a trial court from withholding the names of prospective jurors. The plain language of CPL 270.15 (1) (a) provides that the names be called. CPL 270.15 (1-a) allows for the issuance of a protective order regulating disclosure of addresses. It does not allow for the issuance of a protective order regulating disclosure of names.^*

Trial courts in this state have reached the same conclusion that we now reach. In People v Watts (173 Misc 2d 373 [Sup Ct, Richmond County 1997]), the court concluded that the CPL prohibited selection of an anonymous jury (see id. at 375). In Watts, the court also referred to People v Gotti—a case reprinted in United States v Perry (754 F Supp 202 [D DC 1990]) — where the court concluded that the CPL prohibited the empanelment of jurors whose names were not disclosed (see People v Watts, 173 Misc 2d at 375). Likewise, in People v Owens (187 Misc 2d 272 [Sup Ct, Monroe County 2001]), while granting the defendant’s motion to prohibit disclosure of the names and addresses of prospective and sworn jurors to the media or public, the court stated, “[t]he names of prospective jurors shall continue to be disclosed to the parties, since defendant and all counsel have a statutory right to learn such names” (id. at 273).

The term “anonymous jury” has been used to describe various situations where courts withhold juror information. For example, in State v Sandoval (280 Neb 309, 788 NW2d 172 [2010]), the court explained,

“The term ‘anonymous jury’ encompasses the withholding of a broad spectrum of information. Generally, an ‘anonymous jury’ describes a situation where juror identification information is withheld from the public and the parties themselves . . .

“The least secretive form of an anonymous jury is where only the jurors’ names are withheld from the parties. This procedure may also be called an in-nominate jury or, if jurors are referred to by number rather than name, a numbers jury” (280 Neb at 325-326, 788 NW2d at 195 [citations omitted]).

Here, we refer to what the County Court did as empaneling an anonymous jury, because the court referred to the prospective jurors by assigned numbers and not by their names. Based on the above sections of CPL 270.15, and consistent with trial court decisions interpreting the statute, this was error.

We note that in Watts, in examining the issue of anonymous juries, the trial court found that a defendant’s statutory right to knowledge of jurors’ names may be forfeited “where the acts of a defendant represent a clear threat to either the safety or integrity of the jury” (People v Watts, 173 Misc 2d at 377). We need not, however, decide at this juncture whether there may ever be circumstances in which a defendant can forfeit the right to know the names of prospective and empaneled jurors because in this case, the County Court’s decision to empanel an anonymous jury was not based on the defendants’ conduct. Rather, the court acted on its own initiative based on concerns expressed by jurors who served in prior trials. In addition, while our dissenting colleague points out that CPL 270.15 (1-a) permits the court, for good cause shown, to issue a protective order shielding disclosure of jurors’ addresses from defendants, no such good cause was shown here. Even though one of the jurors said that a defendant stood in front of her car and stared at her as she was “going into the car” in the court parking lot, causing her to feel “[u]ncomfortable, a little intimidated,” the record does not establish that this encounter involved an attempt to intimidate that juror. As the court stated in denying the prosecutor’s application to revoke Aguilar’s bail, “[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.” In any event, regardless of the circumstances of this parking lot encounter, it would be improper to base the need for a protective order barring disclosure of jurors’ addresses on an incident that occurred after an anonymous jury was empaneled.

We turn now to the issue of whether the County Court’s error in empaneling an anonymous jury requires reversal.

The County Court’s Error in Empaneling an Anonymous Jury Deprived the Defendants of Their Right to a Fair Trial

The defendants argue that the County Court’s error in empaneling an anonymous jury deprived them of their right to a fair trial.

The Court of Appeals has explained that

“if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction” (People v Crimmins, 36 NY2d 230, 238 [1975]).

“The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right” (id. at 238).

Empaneling an anonymous jury creates a potential for prejudice to a defendant. Empaneling an anonymous jury may deprive a defendant of information that could be used in selecting a jury (see United States v Morales, 655 F3d 608, 620 [7th Cir 2011]; State v Sandoval, 280 Neb at 327, 788 NW2d at 195; see also United States v Wong, 40 F3d 1347, 1376 [2d Cir 1994]), thus threatening “the ability of both defense attorneys and prosecutors to fully investigate jurors for possible bias or interest” (Abraham Abramovsky & Jonathan I. Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John’s J. of Legal Comment 457, 468 [1999]). More significantly, empaneling an anonymous jury may undermine the presumption of innocence by conveying, before any evidence is presented, that the defendant is a dangerous person from whom the prospective jurors must be protected (see United States v Morales, 655 F3d at 620; State v Sandoval, 280 Neb at 327, 788 NW2d at 195; see also United States v Wong, 40 F3d at 1376). Although anonymity “may also imply a legitimate concern for juror privacy unrelated to the dangerousness of a defendant ... in a criminal case, there is a significant risk that members of the jury might infer that their names were being withheld to protect them from defendant or others acting on his behalf” (State v Sundberg, 349 Or 608, 620, 247 P3d 1213, 1220 [2011]).

Although courts in other jurisdictions, where there is no statutory prohibition against empaneling an anonymous jury, have found the procedure permissible, these courts have nevertheless cautioned that resort to anonymity is proper only where there is a strong reason to believe that the jury needs protection, and where reasonable precautions are taken to minimize any potential prejudice (see e.g. United States v Pica, 692 F3d 79, 88 [2d Cir 2012]; United States v Morales, 655 F3d at 620-621; State v Sandoval, 280 Neb at 327, 788 NW2d at 195; Major v State, 873 NE2d 1120, 1127 [Ind Ct App 2007]; State v Brown, 280 Kan 65, 74, 118 P3d 1273, 1281 [2005]; People v Williams, 241 Mich App 519, 525, 616 NW2d 710, 714 [2000]; see also State v Samonte, 83 Haw 507, 523, 928 P2d 1, 17 [1996]). Reasonable precautions to minimize prejudice, and strike a fair balance between the need to ensure jury safety and the defendant’s right to a fair trial, include providing some type of neutral explanation for the procedure, and appropriate instructions (see United States v Pica, 692 F3d at 88; United States v Morales, 655 F3d at 623; State v Brown, 280 Kan at 74, 118 P3d at 1281). An appropriate instruction may include advising the jury that “the use of numbers instead of names should in no way be interpreted as a reflection of the defendant’s guilt or innocence” (State v Brown, 280 Kan at 74, 118 P3d at 1281).

While the empanelment of an anonymous jury is statutorily prohibited in New York, these cases from other jurisdictions are instructive because of their emphasis on the need for trial courts to take precautions to minimize prejudice. Such precautions must be taken to avoid any inference that anonymity is required because the defendant is a dangerous individual, which may impair the presumption of innocence. Here, the County Court took no precautions to minimize the potential prejudice. The court gave no instruction, for example, that the use of numbers instead of names to identify prospective jurors should not be viewed as a reflection on the guilt or nonguilt of the defendants. The court eventually offered to give an instruction about not using the names of the prospective jurors, but it conditioned giving this instruction on the agreement of all the defense attorneys, and declined to give an instruction when not all the defense attorneys agreed.

Since the County Court took no steps to lessen the potential prejudice, any voir dire questions that the defense attorneys could have asked the prospective jurors in an effort to determine the prejudicial effect merely would have served to draw further attention to the empaneling of an anonymous jury. Also, while the court agreed to retain the names of the selected jurors to enable the defense attorneys to contact the jurors following the verdict, this would not undo the prejudice that might have been done by the empaneling of an anonymous jury. Besides, following the verdict, the jurors were under no obligation to speak with the defense attorneys, and, even if they chose to speak with the defense attorneys, they were no longer under oath.

On this record, where the County Court took no precautions to minimize the potential prejudice, we hold that the trial court’s empaneling of an anonymous jury, in violation of CPL 270.15, deprived the defendants of their self-standing right to a fair trial. Accordingly, this Court must reverse the judgments of conviction and order a new trial, without regard to any evaluation as to whether the error contributed to the convictions.

Harmless Error Analysis Should Not be Applied to This Type of Error

The People argue that any error was harmless.

In light of our conclusion that the defendants were deprived of their self-standing right to a fair trial, we must reverse the judgments of conviction and order a new trial, without regard to any evaluation as to whether the error contributed to the convictions. In other words, because the defendants were deprived of their right to a fair trial, the error cannot be deemed harmless.

Our dissenting colleague notes that courts in other jurisdictions have applied harmless error analysis to error relating to the empaneling of an anonymous jury (see e.g. United States v Morales, 655 F3d at 621-624 [concluding that the Federal District Court erred by ordering the use of an anonymous jury without articulating its reasons for doing so, but that this error was harmless]; Major v State, 873 NE2d 1120, 1129 [2007] [“In light of the rarity of structural errors and the precedent establishing that a harmless error analysis may be applied to the anonymous jury question, we conclude a harmless error analysis is applicable to the case at hand”]). However, even if we had occasion to consider whether the error could be deemed harmless, we would conclude that harmless error analysis should not be applied to this type of error. We note, moreover, that none of the decisions cited by the dissent indicate that the jurisdiction involved had a statute analogous to CPL 270.15.

“Harmless error rules were originally enacted to relieve the courts and the public generally of the needless expense of retrying cases in which the result would be the same after the error had been corrected” (People v Grant, 45 NY2d 366, 378 [1978] [internal quotation marks omitted]).

“Harmless error rules generally involve consideration of two factors. ‘The first of such factors is the quantum and nature of proof of the defendant’s guilt if the error in question were to be wholly excised. The second is the causal effect which it is judged that the particular error may nonetheless have had on the actual verdict’ ” (id. at 378, quoting People v Crimmins, 36 NY2d at 240).

Typically, harmless error analysis is applied to trial errors, where evidence, argument, or instruction was improperly presented to, or improperly precluded from, the jury during trial ()see e.g. People v Ellison, 138 AD3d 1137, 1138 [2016] [the error in admitting at trial the defendant’s videotaped statement to law enforcement officials was harmless]; People v Deokoro, 137 AD3d 1297, 1297-1298 [2016] [to the extent that some of the prosecutor’s summation comments were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless]; People v Stevenson, 129 AD3d 998, 999 [2015] [the court’s error in granting the People’s request to charge the jury, over the defendant’s objection, regarding intoxication was harmless]).

While we acknowledge that harmless error analysis has been applied to potentially analogous types of errors (see e.g. People v Clyde, 18 NY3d 145, 148 [2011] [“We hold that harmless error analysis is applicable when a trial court has ordered the use of visible shackles without adequate justification articulated on the record”]; People v Grant, 7 NY3d 421, 424 [2006] [“Sandoval error is properly subject to harmless-error analysis”]), we do not believe that an appellate court may adjudge the causal effect that the error in empaneling an anonymous jury might have had on the jury’s verdict. The error here relates not to evidence, argument, or instruction that was improperly presented to, or improperly precluded from, the jury during trial, but to the message the court sent to the prospective jurors about the defendants before any evidence was presented, argument was made, or instruction was given. There is no way of knowing what causal effect this particular error, which impacted on the presumption of innocence, might have had on the verdicts.

Moreover, the possibility that prospective jurors might have drawn a conclusion that the defendants were dangerous was heightened by the fact that at least some of the prospective jurors had previously served on a jury (see State v Sunderland, 349 Or at 625, 247 P2d at 1222). These prospective jurors, and others who, through film, television, or other sources were familiar with this State’s jury system, likely would have been aware that the empaneling of an anonymous jury was a departure from typical procedure, and it is likely that they would have attributed the need for such a departure to the perceived dangerousness of the defendants.

Remaining Contentions

The defendants’ challenges to the legal sufficiency of the evidence are unpreserved for appellate review (see CPL 470.05 [2]; People v Kolupa, 13 NY3d 786, 787 [2009]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendants’ guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). On reviewing the record here, we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The hearing court properly denied that branch of Ramirez’s omnibus motion which was to suppress identification testimony, as the showup identification procedure at issue, which occurred in close temporal and spatial proximity to the crime, within 30 minutes after the crime occurred, about 10 to 15 blocks from the crime scene, was not unduly suggestive (see People v Mack, 135 AD3d 962, 963 [2016]; People v Gonzalez, 61 AD3d 775, 776 [2009]; People v Berry, 50 AD3d 1047, 1048 [2008]). Contrary to Ramirez’s contention, the showup was not rendered unduly suggestive merely because he was handcuffed and in the presence of uniformed police officers and police cars (see People v Duuvon, 77 NY2d 541, 544 [1991]; People v Mack, 135 AD3d at 963; People v Jerry, 126 AD3d 1001, 1002 [2015]).

The defendants’ contentions that the County Court erred in permitting the People to present expert testimony on gang culture in general and as to the specific customs and practices of rival gangs in the City of Newburgh, and in qualifying the People’s witness as an expert in those areas, are partially un-preserved for appellate review, as they argued at trial that the subject matter of his proposed testimony was not relevant and not, as they partially argue now, that the witness did not have the requisite training and education (see CPL 470.05 [2]). In any event, the witness, Detective Cortez, demonstrated through his foundational testimony that he possessed the skill, training, knowledge, and experience necessary to proffer an opinion on gang culture in general and on the La Eme and BBK gangs in Newburgh in particular (see People v Mazariego, 117 AD3d 1082, 1084 [2014]; People v Washington, 108 AD3d 576, 577 [2013]). The testimony was relevant to background information, the defendants’ motive for carrying out the crimes, the ac-cessorial culpability of the defendants, and the defendants’ relationship to the victim (see People v Lazaro, 125 AD3d 1007 [2015]; People v Guevara, 96 AD3d 781 [2012]; People v Devers, 82 AD3d 1261-1263 [2011]; People v Cruz, 46 AD3d 567, 568 [2007]; People v Flores, 46 AD3d 570, 571 [2007]; People v Ramirez, 23 AB3d 500, 501 [2005]; People v Cain, 16 AD3d 288, 288-289 [2005]; People v Filipe, 7 AD3d 539, 540 [2004]). Moreover, the probative value of the testimony outweighed any prejudice to the defendants from its admission (see People v Lazaro, 125 AD3d at 1007; People v Guevara, 96 AD3d at 781; People v Flores, 46 AD3d at 571; People v Filipe, 7 AD3d at 540).

In light of our determination, we need not reach the defendants’ remaining contention.

Conclusion

The County Court’s empaneling of an anonymous jury, in violation of CPL 270.15, deprived the defendants of their right to a fair trial. Accordingly, the judgments are reversed, on the law, and a new trial is ordered.

* Judiciary Law § 509 (a), which shields from disclosure juror qualification questionnaires as well as those portions of other records containing information obtained from the questionnaires (see Matter of Newsday, Inc. v Sise, 71 NY2d 146, 152 [1987]), does not alter the way that prospective jurors are to be drawn and called in accordance with CPL 270.15.