DECISION The Defendant1 Terrell Staten, is charged in a four count indictment with Robbery in the First Degree, PL §160.15 (3); Strangulation in the Second Degree PL §121.12; Assault in the Second Degree PL §120.05 (2) and Criminal Possession of a Weapon in the Third Degree, PL §265.02 (1). Defendant’s charges stem from an incident on October 7th, 2018 in the Town of Thompson, Sullivan County, New York wherein it is alleged that the Defendant did forcibly steal United States currency and two cellular phones from the victim2 and in the commission of the crime the Defendant did use a dangerous instrument and cut the victim’s hand with a knife. At the conclusion of the trial on this Indictment, during deliberations, the jury had several requests for testimony, exhibits and a further legal explanation of the charges. After these requests were satisfied, the Court received another request from the Jury for a copy of the Defendant’s summation. In consulting, on the record, with counsel in the presence of the Defendant, the People opposed providing a written copy or read back of the Defendant’s summation, and in the alternative if granting a read back of the Defendant’s summation, asked that the Prosecution’s summation also be read back. The Defendant’s Counsel objects to providing the Jury with the Prosecution’s summation under any circumstances. Counsel argued that the Court’s failure to read back the Defense summation would be error because summation arguments fall within CPL §310.30. Under CPL §310.30, a jury may request at any time during its deliberation “instruction or information with request to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case.” The jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must “give such requested information or instruction as it deems proper” (See, People v. Lourido, 70 NY2d 428; People v. Malloy, 55 NY2d 296.) The Prosecution in relying on People v. River, 138 AD3d 1446 [2016 Appelate Division, 4th Dept.] and People v. Velasco, 77 NY2d 469 [1991 Court of Appeals] argues that if the Court should decide to read back Counsel’s summation, the Court must also read back the Prosecution’s summation, or in the alternative that the Court should not read back any summations and deny the jury’s request. Opinion The issues before this Court are to what extent can a Trial Judge provide the jurors with a read back or written copy of the Defense’s summation. And, if the Trial Court allows a read back of the Defense Counsel’s summation, must the Trial Judge also read back to the jury the Prosecutor’s summation. The Prosecutor’s reliance on People v. Velasco 77 NY2d 469 [Court of Appeals, 1991] is misplaced. In that case, the Defendant was convicted of Manslaughter in the First Degree a violation of PL §125.20 (1), and in response to the deliberating jury’s request to read back both attorney’s summations [emphasis added], the Court of Appeals held that the Trial Judge did not abuse his discretion, under the circumstances of that case, in denying the juror’s request for a read back. In the case at bar, the jury has requested only the written copy of the Counsel’s summation. The Prosecutor’s reliance on People v. Rivers, 138 AD3d 1446 is also misplaced. The Appellate Division 4th Department found that the County Court abused its discretion in reading back the Prosecutor’s summation without also reading back the Defense summation. The Trial Court granted the jury’s request for the read back and denied defense counsel’s request for a contemporaneous read back of the defense summation. The Appellate Division held that by rereading only the Prosecutions summation, the People where thereby permitted an additional opportunity to present their arguments and their view of the evidence. The Appellate Division concluded that such error was not harmless under the circumstances of that case and reversed the judgment and granted a new trial. Underlying our system of justice is the concept of the “Rule of Law” which is the building block on which the modern Democratic society and justice is founded. For the system to successfully function it is imperative that the “Burden of Proof” never shifts to the Defendant, and that a Defendant is “Presumed Innocent” unless and until a jury may in their final deliberations find that the evidence has overcome this “Presumption”. Under our rule of law, the presumption of innocence is afforded each Defendant and the legal burden of proof is placed on the prosecution alone. The Prosecution must prove that the accused is guilty beyond reasonable doubt and this burden never shifts. In the case at bar, during extensive deliberations, the jurors asked this Court specifically for a copy of the Defendant’s summation. They did not make a request for the Prosecution’s summation. The Prosecution argues that the Court must read back to the Jury the Prosecution’s summation as well relying on the ruling of the Court of Appeals in People v. Velasco, supra. This Court does not agree. Unlike the Velasco case in which the jury requested only the Prosecutor’s summation and the Trial Judge read back only the Prosecutions summation, the case at bar differs greatly. Here, the Jurors have requested only the Defendant’s summation and since the burden is on the People to prove the accused guilty beyond a reasonable doubt this Court finds that to sua sponte give the jury the Prosecution’s summation would lessen that Burden and it would be an invasion of the providence of the jury’s deliberations. The Velasco Court held it was error to read back the Prosecution’s summation and not the Defense Counsel’s summation because it gave the Prosecution “an additional opportunity to present their arguments, and their view of the evidence, creating a potential for distracting the jurors from their own recollections of the facts. On the contrary, in the case at bar, the jurors did not request a read back of the Prosecution’s summation and to do so would be a distraction for the Jury, and would give the Prosecution an additional opportunity to argue their view, when such was not requested. The jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must [emphasis added] “give such requested information or instruction as it deems proper” (see, CPL §310.30; People v. Lourido, 70 NY2d 435; People v. Malloy, 55 NY2d 296.) Accordingly whether both, none, or only the Defense’s summation should be read to the jury under the circumstances of this case is a matter within the Trial Court’s discretion (see People v. Velasco, supra; see also People v. Ford, 69 NY2d 775; People v. Balls, 69 NY2d 641.). Based on the foregoing, the juror’s request for the Defense counsel’s summation, over objection of the Prosecution, is granted. Prosecution’s request to have their summation read back to the jury is denied. The Court further directs in its discretion that Counsel’s summation be only read back to the jury at this time.3 Dated: November 4, 2019 Monticello, New York
