Court of Appeals will review verdict sheet language

Questions regarding written jury verdict sheet instructions in a Rochester homicide case will be heard by the New York State Court of Appeals.

Leave was recently granted in People v. Jeffrey H. Miller in which Miller was convicted in October 2006 of second-degree murder, second-degree assault, second-degree criminal possession of a weapon and third-degree criminal possession of a weapon.

Miller, 35, of Rochester, was charged in connection with the death of his former girlfriend Shunda Cuyler, 30, of Rochester, who was shot Aug. 10, 2005 as she sat in a car outside of her of Woodbine Avenue residence. She died early the next day. Another man, Freddie Collins, 36, was wounded in the attack.

Drew R. DuBrin, special assistant public defender in charge of appeals, objected to written annotations and instructions given by Justice Thomas M. Van Strydonck in Monroe County Supreme Court, claiming they were improper.

DuBrin said the instructions went beyond distinguishing different counts to actually instructing the jury on the extreme emotional disturbance defense.

Justice Van Strydonck included two lesser counts of first-degree manslaughter in his verbal charge to the jury, which is permitted, and in his written instructions, which DuBrin contends is not.

The Appellate Division, Fourth Department, agreed in a May 7, 2010 decision in which it reversed the lower court and granted a new trial on the above counts.

The Appellate Division, presided over by Justice John V. Centra, notes that the Supreme Court is permitted to provide the jury with a verdict sheet “setting forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished,” because two or more counts charging the same offense under the same article of law were submitted to the jury.

The two like offenses were the weapons possession counts, but DuBrin objects to language used on the verdict sheet with respect to the murder and assault counts and claim it affected jury deliberations on all counts because it focused the jury’s attention on the extreme emotional disturbance defense.

He said the verdict sheet said if the jury found Miller not guilty of second-degree murder, then it must consider the affirmative defense of extreme emotional disturbance and asked whether the defendant established it “by a preponderance of the evidence” to be guilty of the lesser count of first-degree manslaughter.

DuBrin also argues that the judge’s instructions placed the burden of proof on the defendant and did not mention the people’s burden of proving the charges beyond a reasonable doubt.

The jury was also instructed if it rejected the second-degree murder count, it could consider a first-degree manslaughter verdict under the section of law involving an intent to cause serious physical injury.

“Here, the court included in the verdict sheet an instruction that the jury was to determine whether ‘the defendant established by a preponderance of the evidence that he acted under extreme emotional disturbance,’” the Appellate Division says. “We conclude that the court thereby exceeded the statutory bounds of CPL 310.20 (2) by giving the jury a written legal instruction on the burden of proof, rather than merely complying with ‘the statutory purpose of enabling a jury to distinguish between the two weapons possession counts.’”

DuBrin said defense attorney Lawrence L. Kasperek, assigned counsel, objected to the instruction when it was proposed and that the people, represented by Assistant District Attorney Jennifer A. Whitman, remained silent.

“It’s been long held by the Court of Appeals, absent the consent of the parties, that it’s impermissible to submit a portion of its oral charge also in writing because of the risk that the jurors are going to give undue attention to what is written,” DuBrin said. “The danger is anytime you submit instruction in writing, there’s a risk the jury’s going to focus more on that which is submitted in writing more than on that which is given orally.”

The Court of Appeals will also consider that if the lower court did exceed its bounds, whether the error was harmless and if the correct remedy was the reversal of the counts unrelated to the murder charge.

The Appellate Division rejected the people’s claim that harmless error analysis may be applied and that the Court of Appeals, in People V. Damiano 87 NY2d 477, 484-485 expressly rejected its application to verdict sheet errors.

“We disagree with the Appellate Division that the information was not allowed by statute,” said Assistant District Attorney Geoffrey A. Kaeuper who is handling the appeal. “The statute in question here has been amended twice since the Court of Appeals last weighed in on what is allowable on a verdict sheet.”

He said 1996 and 2002 amendments to the statute expanded the scope of allowable information on a verdict sheet to allow juries to distinguish between multiple counts under the same section.

Kaueper said the purpose of Justice Van Strydonck’s annotations and instructions was to distinguish between the second-degree murder count and the lesser included first-degree manslaughter counts.

“Distinguishing those counts was the point of the information that was on the verdict sheet,” Kaeuper said. “It’s a potentially confusing set of charges to be considered alternatively. What the judge included is allowable under the amendments. We believe it was necessary to help the jury to properly consider these three different charges, all under Article 125 of the penal code.”

Kaeuper said even if the annotations were not proper under the statute, that the evidence was overwhelming and that any error was harmless. He is arguing that distinguishing between counts was the motivation for the 1996 amendment. He said the 2002 amendment broadened that slightly.

Prior to the amendments, the jury verdict sheet was only allowed to include the name of the charge and potential verdict of guilty or not guilty.

A date has yet to be set for oral arguments on the appeal. Miller, who had been sentenced to 25 years to life in prison, is back in Monroe County Jail pending the outcome of the appeal and a possible new trial.

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