139 A.D.3d 1102, 31 N.Y.S.3d 257 (2016)

Appeal of Chenango County Criminal Case Results in Conviction Dismissal and Judgment Reversal

People v. Victor

Our client was serving up to 39 years in prison on drug and weapons charges. He was convicted in the County Court of Chenango County of criminal possession of a controlled substance in the second and third degrees, conspiracy in the second degree, and criminal possession of a weapon in the second and third degrees. We successfully appealed, obtaining a dismissal of a weapons charge and reversal of all remaining charges.

Case Background

The police commenced a narcotics investigation against the defendant’s paramour and her mother. During the investigation, several controlled buys of cocaine were made from the paramour, her mother, and another person. The police obtained a search warrant for the paramour’s residence, which upon execution resulted in the arrest of the paramour and the defendant. They seized drugs, weapons, ammunition, cell phones, cars, keys to a storage unit, and keys to a vehicle not found at the residence.

Based upon the seized keys and phone calls made by the paramour while in jail, the police obtained and executed a search warrant for the storage unit that was rented by the paramour. They seized another car, as well as a backpack that contained narcotics, drug paraphernalia, weapons and ammunition. As a result, the defendant was charged with criminal possession of a controlled substance in the second and third degrees, conspiracy in the second degree, and criminal possession of a weapon in the second and third degrees. The indictments were consolidated.

The paramour pleaded guilty to criminal possession of a controlled substance in the fifth degree and was released from jail on the condition that she testify against the defendant. Following a jury trial, at which the paramour testified, the defendant was convicted and sentenced to an aggregate prison term of 34 to 39 years.

Defendant retained Ostrer & Associates, P.C. to represent him on appeal.

Main Graphic for Ostrer People v Victor Criminal Appeals Case

Conviction for Criminal Possession of a Defaced Weapon Was Against Weight of the Evidence

Defendant had been convicted of criminal possession of a defaced weapon. At trial, a police officer testified that the serial number on one of the weapons found in the storage unit, a revolver, had been scratched, etched or ground off. On appeal, we argued that this conviction was against the weight of the evidence. We demonstrated that the photographs of the revolver, which had been admitted into evidence, did not reflect that the serial number was defaced. We also presented evidence that the officer’s testimony at trial did not address the condition of the serial number on the revolver. Defendant’s conviction on this count was dismissed.

Court’s Procedural Error Required Reversal of Judgment on all Counts

On appeal, we argued that the court mishandled a jury note, which constituted a mode of proceedings error that required a reversal of judgment.

The jury sent a note that stated “we have reach[ed] agreement on 9 of the 10 charges # 8G 4NG.” Shortly thereafter, as the court was discussing – off record – what to do with that note, the jury sent another note stating, “Ready.” Addressing the attorneys and defendant outside the presence of the jury, the court indicated for the record that it received a note from the jury stating, “We’ve reached agreement on nine out of the ten charged.” Defense counsel and the prosecution agreed that if the jury had a complete verdict, they were “ready to go,” but that the court should send the jury back for further deliberations if there was only a partial verdict and the discussion about the note ended.

The Appeals Court found that the County Court did not follow procedure by paraphrasing the note, stating that the County Court had an affirmative obligation to read the jury note verbatim so that the defendant and prosecution had the opportunity to analyze the jury’s question and frame intelligent suggestions for the court’s response. It noted that nothing in the trial record indicated that the defendant knew about the portion of the note stating “8G 4NG.” The Appeals Court found that because of this the County Court committed a mode of proceedings error and reversed judgment on all counts.

The District Attorney sought leave to the N.Y. Court of Appeals, which was denied.

The reported case can be found at
https://law.justia.com/cases/new-york/appellate-division-third-department/2016/104917.html

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