People v. Johnson

OPINION OF THE COURT

Yesawich Jr., J.

On December 9, 1989 at approximately 5:30 a.m., police officers were dispatched to a residence in the City of Ithaca, Tompkins County, to investigate a complaint of domestic violence possibly involving a handgun. As they approached the premises, they heard a woman whose voice they recognized as that of Dorothy Phillips shouting at defendant not to shoot a gun in the house. When Phillips answered their knock at the door, she asked them to remove defendant from the house, warned that he had a gun and pointed to a bullet in the ceiling. The officers apprehended, searched and arrested defendant; they found no gun on his person. After Phillips was also arrested for threatening one of the officers with a butcher knife, she informed the officers that the gun was not in the apartment and enjoined her 14-year-old son, Terrell, not to tell them of the gun’s whereabouts. Following removal of defendant and Phillips from the premises, Terrell—in response to requests by the police and the encouragement of his uncle, who also resided on the premises—led two officers to a gun hidden underneath a stuffed animal that was on top of a pile of clothes on the floor of an upstairs bedroom shared by defendant and Phillips.

Defendant was indicted and charged with criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and menacing. A suppression hearing was held after which County Court denied defendant’s motion to suppress the gun—defendant maintained the gun was discovered during an illegal search—and also denied defendant’s motion to dismiss the indictment as duplicitous.

During its deliberations, the jury sent a note to County Court asking that it furnish the jury with "a hard copy” of the court’s charge. Over defendant’s objection the court, acceding to that request, gave a written copy of its entire charge to the jury. Thereafter, the jury returned a verdict of not guilty on the charges of criminal possession of a weapon in the second degree and menacing, but guilty of criminal possession of a weapon in the third degree. An indeterminate prison term of 3 to 6 years was imposed. Defendant appeals.

County Court properly denied defendant’s motion to dismiss the indictment as duplicitous (see, CPL 200.30). Penal Law § 10.00 (8) defines "possess” to include "physical possession or otherwise to exercise dominion or control over tangible property” (cf., People v Rosado, 64 AD2d 172, 177-178). Although, according to the People’s bill of particulars, the second count of the indictment involved actual and constructive possession, only one offense was charged, namely, criminal possession of a weapon in the third degree, which occurred within a one-hour period in a single location (see, People v Heinzelman, 170 AD2d 841, 842, lv denied 77 NY2d 995; People v Hagmann, 160 AD2d 1125, 1127-1128; cf., People v MacAfee, 76 AD2d 157,159-160).

The motion to suppress the handgun was also properly denied. It is undisputed that the search was conducted without a search warrant and without the express consent of any of the residents. And, having made no inquiry with respect to the authority of Phillips’ brother or 14-year-old son to consent to the search of Phillips’ bedroom, the police could not reasonably have believed that Phillips’ brother or son had the requisite authority and control over the bedroom and personal property therein to consent to a search, however limited in scope (see, People v Adams, 53 NY2d 1, 9-10, cert denied 454 US 854; cf., People v Wood, 31 NY2d 975, 976). Notwithstanding the foregoing observations, the limited search to find the gun was justified by the exigent circumstances which then prevailed—including the report of gun fire, the bullet in the ceiling, the 14-year-old’s presence in the residence and his obvious knowledge of the gun’s location (see, People v Mitchell, 39 NY2d 173, 177-178, cert denied 426 US 953; People v Lenart, 91 AD2d 132, 133-134).

Reversible error occurred however, when, over defendant’s objection, County Court gave the jury a written copy of its charge (cf., People v Groemminger, 173 AD2d 983, lv denied 78 NY2d 966). In People v Owens (69 NY2d 585) the Court of Appeals, noting that "jury instructions generally are not fertile ground for innovation during trial, particularly when defendant objects” (supra, at 589), declared that reversible error occurs when a court, sua sponte, distributes written excerpts of its charge to the jury over the defendant’s objection (supra, at 589-591). The Court of Appeals left open the question of whether providing the jury a copy of the full charge over the defendant’s objection is permissible (supra, at 590, n).

We find it a telling contrast that the CPL, which undertakes to define materials that may be submitted to a jury, is silent respecting submission to a jury of the trial court’s instructions in writing (see, People v Sotomayer, 173 AD2d 500, 502, affd 79 NY2d 1029). By CPL article 310 the Legislature has set forth the materials to which a jury may be permitted access to aid in its consideration of a case; they include trial exhibits (CPL 310.20 [1]), a written verdict sheet prepared by the trial court (CPL 310.20 [2]), and a copy of the text of a pertinent statute if both parties consent (CPL 310.30). Had it intended to empower the trial court to send or to allow a jury to have, where consent is lacking, a written copy of the court’s instructions in the jury room, the Legislature would have so provided. To hold otherwise—even where, as here, the court made the charge available not sua sponte but at the jury’s request and specifically cautioned the jury that everything contained in the charge is of equal importance and that the written copy furnished was not intended as a substitute for any question they might have regarding it—would increase the likelihood that juries would take on the role of Judges and attempt to interpret the substantive legal definitions and principles appearing in the charge rather than turn to the court for explanation or elucidation (see, People v Moore, 71 NY2d 684, 688). However slim this risk may appear, its potential, and hence the potential for depriving the accused of a fair trial, exists; therefore, the error occasioned by any such submission to the jury cannot be viewed as innocuous (see, People v Owens, supra, at 591-592).