
    The People of the State of New York, Respondent, v Richard Moore, Appellant.
    Argued April 25, 1988;
    decided June 7, 1988
    
      POINTS OF COUNSEL
    
      Joel Atlas and Philip L. Weinstein for appellant.
    The submission of a copy of the felony murder counts of the indictment to the jury during deliberations deprived appellant of his due process right to a fair trial. (People v Rhyne, 121 AD2d 954; People v Townsend, 67 NY2d 815; People v Boon, 69 NY2d 585; People v Compton, 119 AD2d 473; People v Vincenty, 68 NY2d 899; People v Fortt, 42 AD2d 859, 35 NY2d 921; People v Moran, 84 AD2d 753; People v Branch, 83 AD2d 855; People v Putnam, 130 AD2d 52; People v Perez, 90 AD2d 468.)
    
      Paul T. Gentile, District Attorney (Stanley R. Kaplan and Peter D. Coddington of counsel), for respondent.
    I. Appellant was proven guilty of the crimes charged beyond a reasonable doubt by overwhelming evidence. (People v Bay, 67 NY2d 787; People v Benzinger, 36 NY2d 29; People v Bleakley, 69 NY2d 490.) II. After the jury had repeatedly heard the counts of the indictment read to them and had been informed by defense counsel and instructed by the court that an indictment was not evidence, the court properly exercised its discretion to provide the jury with further instruction and information when (1) the jury asked to receive a copy of the felony murder counts of the indictment, (2) the court responded by again reading aloud those counts to the jury, and (3) the jury renewed its request for written copy, the court submitted a photocopy of the counts in order to aid the jury’s deliberation. (People v Iannelli, 69 NY2d 684; People v Middleton, 54 NY2d 42; People v Thomas, 50 NY2d 467; People v Malloy, 55 NY2d 296; People v Gonzalez, 293 NY 259; People v Miller, 6 NY2d 152; People v Gezzo, 307 NY 385; People v Flynn, 290 NY 220; People v Lourido, 70 NY2d 428; People v Almodovar, 62 NY2d 126.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of two counts of murder, second degree, and other crimes committed in the course of killing 80-year-old Elizabeth Dougherty. The victim was found near death in her Bronx apartment, bound and gagged under a pile of curtains and clothing, and removed to a hospital where she subsequently died as a result of asphyxiation due to smothering. The apartment had been ransacked and was in complete disorder; the refrigerator, drawers and cabinets had been opened and their contents strewn about the apartment. Defendant, who insisted that he had never been in the victim’s home, left his fingerprints throughout the apartment— one print was lifted from a canister found on the kitchen floor, a second from a metal cabinet in the living room, and a third from a mass card which had been secreted in a bureau drawer in the victim’s bedroom, but which, after the crime, was found on the bedroom floor. Months later, when informed that he had been arrested for the January 1984 murder of Mrs. Dougherty in an apartment on the Grand Concourse in The Bronx, defendant laughed and said that he had not been on the Grand Concourse in January and had never killed an "old white lady”. When he made this statement, defendant had not been told the age or race of the victim. Based on this evidence, defendant was convicted following a jury trial of two counts of felony murder and burglary, and the Appellate Division affirmed.

Defendant contends that he was denied a fair trial because the Trial Judge permitted the jury to take part of the indictment into the jury room. Confronted with the request of the jury for further assistance during deliberations, and mandated by the statute to provide it to them (see, CPL 310.30; People v Malloy, 55 NY2d 296, 301), the court submitted copies of two counts to them. The error in doing so, if indeed it was error, was harmless beyond a reasonable doubt and does not require reversal of the conviction.

After the jury had started deliberating, it sent a note to the court requesting that it be given a copy of counts two and three of the indictment, the counts charging felony murder. The court had the jury returned to the courtroom and after reading the two counts to them it asked the jurors if the reading sufficed or if they still wanted copies of the indictment. The jurors responded that they wished a copy of the indictment for reference during deliberations. The court prepared photocopies but before giving them to the jury, it again explained the difference between attempted robbery and burglary, the predicate felonies contained in the two counts. It also warned the jury that the copies were given at their request as an aid to deliberation and that the indictment was "not evidence and it is not to be considered as evidence.”

In People v Owens (69 NY2d 585), we held that the court could not, sua sponte, give the jury a portion of its charge in writing to consider in the jury room during deliberations and that the error was not subject to harmless error analysis. In doing so, we relied on CPL 310.30 which expressly prohibits delivering a portion of a statute to the jury without counsel’s consent and found that delivering portions of the charge presented the same dangers. We identified these dangers as follows: "First, the fact that the trial court has selected certain portions of its charge may itself convey the message that these are of particular importance. Second, the very repetition of parts of the charge may serve to emphasize them and subordinate the others. Finally, the written instructions may be reinforced by their physical presence in the jury room, as the oral instructions fade from memory” (id., at 591).

The submission of the counts of the indictment in the matter before us did not entail any of the risks identified in Owens because of the nature of the information and because the court was responding to a request from the jury. Manifestly, the court was not emphasizing counts two or three or conveying a message to the jury that they were of particular importance and other matters less so. The jury had already decided that it needed the court’s further instructions and assistance on the counts charging felony murder. The portion of the indictment setting forth those counts clearly was part of an accusatory instrument, known by the jury to be so, and routinely stated the charges. Moreover, before giving the indictment to the jury, the court carefully explained the applicable law, in language which it had discussed with counsel and which counsel accepted without protest, and carefully explained the nature of an indictment for the jury again as only a charge, lacking any evidentiary value. The contents of the indictment were not new, the prosecution had read the entire indictment during openings, as he was entitled to do (see, People v Reilly, 49 App Div 218, 221, affd 164 NY 600), and defense counsel and the court had previously discussed the charges and admonished the jury that it was only a charge and entitled to no weight. The counts did not purport to be a statement of the law and they were given to the jury at its request with approved instructions concerning its meaning and its limited value. It no more emphasized one side of the case to the exclusion of the other than did the jury’s consideration of exhibits which were properly delivered to the jury room without counsel’s consent (GPL 310.20).

Nor is this case controlled by our decision in People v Sanders (70 NY2d 837) which involved submission of a statute (see also, People v Nimmons, 72 NY2d 830). Although the court was also responding to the jury’s request in Sanders, the danger that a jury may misuse a statute is significantly greater than the danger that it will misuse an indictment. When jurors consider a statute in isolation, apart from related statutes, the legislative history and judicial interpretation, they may very well engage in a collateral debate as to its meaning, thereby taking on the role as Judges of the law as well as Judges of the fact. No such danger exists when an indictment is given to the jury, for the law presumes that the jury will follow the court’s instructions that the indictment is not evidence and is only an accusatory instrument.

Accordingly, the order of the Appellate Division should be affirmed.

Kaye, J.

(dissenting). The ink is barely dry on People v Owens (69 NY2d 585), People v Brooks (70 NY2d 896) and People v Sanders (70 NY2d 837), establishing that a trial court’s submission to a deliberating jury — over defendant’s objection — of written materials not expressly authorized by the Criminal Procedure Law and posing a risk of prejudice, is per se reversible error, not subject to harmless error analysis (see also, People v Nimmons, 72 NY2d 830). Now the majority refuses to apply those holdings to this comparable case. For two reasons I respectfully dissent. First, the same or even greater possible prejudice is present here; the same rule should apply. Second, beyond the particular case, the majority muddies our own clear rule that guides future cases.

No point in a trial can be more critical than jury deliberations. Materials taken into the jury room at those crucial moments may well influence the verdict. Recognizing this, both the Legislature and this court have circumscribed what may properly be furnished to a deliberating jury. The Legislature has specified that exhibits in evidence (CPL 310.20 [1]), verdict sheets prepared by the court (CPL 310.20 [2]) and copies of statutes (CPL 310.30) may be submitted, and it has surrounded even these categories with several protections. Exhibits received in evidence enjoy a "triple whammy of protection” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.20); they may be taken into the jury room, in the court’s discretion, only after the parties have had an opportunity to be heard. The text of a statute may be submitted, in the court’s discretion, only "[w]ith the consent of the parties and upon request of the jury for further instruction with respect to a statute”. (CPL 310.30.)

In People v Owens (supra), barely one year old, we concluded that it was per se reversible error for a Trial Judge to give a deliberating jury, over defense objection, written excerpts from the charge (see also, People v Brooks, 70 NY2d 896, 898, supra). Only six months later, following Owens, this court concluded that it was per se reversible error to furnish the jury with a copy of the text of a pertinent statute. "The distribution of the statute without counsel’s consent is prohibited by CPL 310.30 and, like the distribution of written excerpts of a jury charge considered in Owens (supra), the error cannot be deemed harmless” (People v Sanders, 70 NY2d 837, 838, supra). Today, in People v Nimmons (supra) we apply these precedents to a list of the counts of the indictment in statutory language, and again determine that the conviction must be reversed.

Against this clear backdrop of statutory and decisional law, today’s holding is incongruous and incomprehensible. If we followed our own precedents, defendant’s conviction would be reversed and a new trial ordered.

Defendant was convicted of two counts of felony murder, under a statute reading: "A person is guilty of murder in the second degree when: * * * he commits or attempts to commit robbery [or] burglary * * * and, in the course of and in furtherance of such crime or of immediate flight therefrom, he * * * causes the death of a person other than one of the participants”. (Penal Law § 125.25 [3].) Submitting that statutory language to the jury over defendant’s objection would have constituted reversible error, not subject to harmless error analysis. People v Sanders (supra) says exactly that. Submitting that statutory language in a list of counts of the indictment similarly would have constituted reversible error. People v Nimmons (supra) says exactly that.

Yet what is at issue here is simply a more inflammatory, accusatory version of the statutory language, reading as follows:

"second count

"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:

"The defendant, on or about January 17, 1984, in the County of the Bronx, having attempted to commit the crime of robbery, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.

"third count

"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:

"The defendant, on or about January 17, 1984, in the County of the Bronx, having committed the crime of burglary, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.”

A side-by-side comparison of the statute and the indictment can only leave one bewildered as to why in Owens, Brooks, Sanders and Nimmons we concluded that there must be reversal, and here we reach a different result.

True, the identical risks cited in Owens are not present: the prejudice is possibly even greater here. As with a statute, there is substantial danger that a deliberating jury will be unduly influenced by the physical presence of the indictment in the jury room, because it emphasizes the prosecution’s theory of the case and ignores relevant factors favoring defendant. But in addition, the indictment — unlike the statute — is accusatory. The indictment places defendant right in the midst of the crime, in most graphic terms: it says that he caused the death of Elizabeth Dougherty "by asphyxiation by smothering.” Moreover, the indictment stands as an accusation of guilt by grand jurors who have reviewed the prosecutor’s evidence and found it sufficient. There is a risk, therefore, that a juror concerned about the credibility of the People’s witnesses or the sufficiency of the evidence will be mollified by the unhesitating assertions of guilt contained in the indictment (see, People v Fortt, 35 NY2d 921, revg on dissent below 42 AD2d 859, 860). This bolstering effect cannot be underestimated; jurors faced with the conflicting assertions of counsel and the frustrating neutrality of the Trial Judge may be hard pressed to ignore these powerfully worded official accusations of guilt, especially when the words are physically before them in the jury room.

Nor is the risk of prejudice diminished, as the majority suggests, because it was the jury that requested the document (see, People v Sanders, supra). To the contrary, the jury’s insistence on having the indictment even after its contents were reread insured that the indictment itself would be a significant factor in the deliberations. Indeed, submission of the indictment here apparently had just that effect. This jury deliberated approximately five hours, and then requested a copy of counts two and three of the indictment. When defendant objected, the court reread those counts to them. The jury persisted in its request for a copy of the indictment, which they ultimately received, and 30 minutes later announced their guilty verdict.

I therefore cannot agree with the majority’s conclusion that the error was harmless or that the proof of guilt was overwhelming. The fingerprint evidence established only defendant’s presence in the victim’s apartment at some unascertainable time. The only other evidence linking him to the crime was the recollection of two police officers that defendant had made a statement allegedly evincing knowledge of details of the crime. The probative value of this evidence, however, was substantially undercut by the concession of one of the officers that in his Grand Jury testimony he had given a different version of defendant’s statement, containing none of the details later highlighted by the prosecution.

There should be a reversal and new trial, because we are led to this result by our own recent decisions, and because it leaves in place a clear, unclouded rule to guide trial courts.

Chief Judge Wachtler and Judges Hancock, Jr., and Bellacos a concur with Judge Simons; Judge Kaye dissents and votes to reverse in a separate opinion in which Judges Alexander and Titone concur.

Order affirmed. 
      
       "second count
      "The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
      "The defendant, on or about January 17, 1984, in the County of the Bronx, having attempted to commit the crime of robbery, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.
      "third count
      "The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
      "The defendant, on or about January 17, 1984, in the County of the Bronx, having committed the crime of burglary, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.”
     