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People v DeGondea
2001 NY Slip Op 30044(U)
July 9, 2001
Supreme Court, New York County
Docket Number: 0002422/1993
Judge: Marcy L. Kahn
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Search E-Courts (http://www.nycourts.gov/ecourts) for
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This opinion is uncorrected and not selected for official
publication.




[* 1 ]
THE PEOPLE OF THE STATE OF NEW YORK,                                  Ind. No.
                                                                      DECISION                                                     ORDER
-against-
DAVID DEGONDEA,
                                                                      Defendant.
On January  5 ,                                                       1995, defendant was convicted after a jury
trial before a different Justice of this court' of murder in the
first degree, attempted murder in the first degree, criminal
'possession of a weapon in the second degree and criminal sale of
in the first degree arising from a                                    which
resulted in the death of an undercover police officer who was in
process of purchasing a large quantity of marijuana from the
defendant.-       He is currently serving a term of imprisonment of
years to life.
Defendant appealed his conviction, contending, i n t e r  a l i a ,
that the trial court had erroneously denied for-cause challenges
,
prospective jurors numbers five and eleven.  The Appellate
Division held the appeal in abeyance and referred the matter to
The trial Justice is now deceased.
co-defendant at trial, Edward
charged with criminal sale of marijuana in the first degree
§                                                                     221.55) and criminal sale of a firearm in the third degree
§                                                                     and was convicted of both charges.  Arce was
neither a party to the appeal nor to the present proceedings
before this court.




[* 2 ]
the Supreme Court to hold a hearing to reconstruct the  v o i r  d ir e
examination of the two jurors.                                                                                                                    v. Desondea, 256                              39,
41-42                                                                     Dept. 19981                                                             .  This court conducted
the reconstruction hearing, made findings  (People v. Degondea,
Ind. No.                                                                                                                                          slip op.  [Sup. Ct., NY  Co. Sept. 7, 19991
                                                                                                                                                  and returned the case to the Appellate
                                                                          Division which affirmed defendant's conviction                                                                        v.
!
Desondea, 269                                                             243,  245                                                               Dept.] ,                                      denied, 95       834
                                                                          Defendant now moves pursuant to CPL  §                                                                                and
                                                                          to vacate the judgment against him on the following grounds: 1)
                                                                          trial court erroneously denied a for-cause challenge as to
                                                                          juror number two, as a result of that court's failure adequately
                                                                          to supervise the  v o i r  d i r e ;                                    the trial court was
                                                                          constructively absent from the courtroom during parts of     the
                                                                          v o i r  d i r e proceedings, which deprived defendant of his federal
and state                                                                 constitutional                                                          rights to a trial                             and              the
'trial                                                                    court infringed                                                         defendant's right to                          at e review of
the denial of his for-cause challenges in violation of the equal
and due process clauses of the state and federal
constitutions.  Defendant requests that a hearing be held to
'determine whether the trial court failed adequately to supervise
//thev o i r  d i r e ,  whether that failure resulted in an erroneous
"denial of  the for-cause challenge to juror number two,'  and
the trial court's conduct during  v o i r dire denied him
2




[* 3 ]
his state and constitutional rights to a jury trial and to
i
I.    PRIOR  PROCEEDINGS
of defendant's motion initially requires a
detailed review of  the precise issues raised and decided during
five and eleven, who expressed an inability to be fair
I
,,andimpartial in the case due to their relationships with police
officers.                                                           The Appellate Division found that meaningful
'appellate review of defendant's claim was impossible, as the
responses during  v o i r  d i r e  were not recorded and the
trial court had refused defense                                     request to
I
interview the jurors, which resulted in defendant being thwarted
from creating an adequate record for appellate review.  (Degondea
,
I,                                                                  at  41-42).  The court also observed that evidence in
the record                                                          'I                                                      that the defense attorneys
"consistently                                                                                                               the jurors' responses, and that
contradictory characterizations, it was  "clear that the
record establishes nothing definitively and precludes
'appellate review of    the court's rulings on the challenges for
cause."                                                             , at  41) .
The Appellate Division remanded the case for a recon-
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hearing                                                             determine the substance of the two jurors'
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[* 4 ]                                                                  I
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[five and eleven]  statements during the voir dire proceedings
that relate to whether either juror possessed any genuine bias
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that would preclude such juror from rendering an impartial
verdict."                                                               at  41-42).                                                        !
Pursuant to the Appellate Division's directive, this court
conducted a reconstruction hearing on January  2 2 , January 29,
February  19, March  9 , March  22, March  30  and June  11, 1999 at
which witnesses testified, i n t e r  a l i a ,  to the trial court's
impatience with the progress of jury selection                                                                                                                                     at  126
                                                                        [Jan. 29, 19991 ,  80  [Feb. 19, 19991) and periodic bouts of
somnolence                                                              at  216-18                                                         [Jan. 29, 19991, 77, 81, 94-95  [Feb.
                                                                        19, 19991).  Defendant's trial counsel also testified that he
                                                                        feared aggravating the trial court by pressing for-cause
                                                                        challenges in light of previous remarks made by the trial judge.
at  82                                                                  19, 19991).
On March  5 ,                                                           1999, during the course of the hearing and
based upon evidence adduced concerning juror number two,
applied pursuant to Judiciary Law  §                                    to the
Division for the release of  identifying information
':concerningthat juror, with the apparent purpose of expanding
scope of the reconstruction hearing to include his testimony
to both the trial court's supervision of the  v o i r  d i r e  and
propriety of the trial court's denial of the for-cause
as to him.  (Letter of Claudia S . Trupp, Esq., dated
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5 ,                                                                     On March  25, 1999, the Appellate Division
I
defendant's application, without explanation.
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[* 5 ]
On September 7 , 1999, this court rendered a written
decision finding that the preponderance of the credible evidence
had established that prospective juror number five had stated,
substance, that he would be  uncomfortable serving on the jury
to his relationship with one or more police officers, and
such feelings might affect his ability to be  fair and
in the case.  (Deqondea 11,  supra, at  5 4 - 5 5 )
In a supplemental brief  to the Appellate Division filed
,
this court rendered its findings with respect to the
hearing, defendant asked that the Appellate
,Division reopen the reconstruction hearing to permit him to call
number two as a witness to determine the substance of his
responses during  v o i r  d i r e .
In its Memorandum Decision dated February  17,  2000 the
Division affirmed defendant's conviction, holding that
juror number five may have initially expressed
.*-
discomfort sitting on a case involving a police officer,            the
totality of the reconstruction record demonstrated that the
trial court did not err in refusing defense counsel's for-cause
challenge.  (Desondea 111,                                          at  2 4 5 ) .    The court did  not
defendant's application as to juror number two.
,
As defendant had conceded that the trial court's ruling
to juror number eleven had been correct, this court did not
findings with respect to that juror.
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[* 6 ]                                                                                                                                    i
11.   RELEVANT                                                          440.10  LAW
Criminal Procedure Law                                                  provides that at any
                                                                                                                                          I
                                                                        time after the entry of a judgment, the court in which it was
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                                                                        entered may, upon motion of the defendant, vacate such judgment   I
                                                                                                                                          I
upon certain specified grounds.  Such a motion informs the court
facts not appearing on the record and unknown at the time of
the judgment, which as a matter of law, would undermine the             !
I
of  the judgment.  (People v. Donovan, 107                              433,  444
. I
Dept.] ,                                                                denied, 65                                                        694                                 The motion may
not     be used to obtain an additional appeal or as a substitute
€or direct appeal.                                                      see also People v.  Cooks, 67                                     100,
103
Before a court may address the merits of such a motion, it
must  first determine whether the claim is procedurally barred by
CPL  §                                                                  or                                                                Subdivision two of CPL  §  440.10
"mandates the denial of a motion to vacate a judgment when, i n t e r
..*.-
a l i a :
(a)                                                                     ground or issue raised upon the motion was
previously determined on the merits upon an appeal
from the judgment  .
Subdivision three affords the motion court discretion to
I
a motion to vacate a judgment when, i n t e r  a l i a :
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(a) [allthough facts in support of the ground or issue
raised upon the motion could with due diligence by the
defendant have readily been made to appear on the record in
a manner providing adequate basis for review of such ground             I
or issue upon an appeal from the judgment, the defendant
unjustifiably failed to adduce such matter prior to                     ,
sentence and the ground or issue in                                     was not
subsequently determined upon appeal.
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[* 7 ]
The CPL                                                                                                         motion has been characterized as an
                                                   "emergency measure" designed to provide a defendant with a
remedy when no other                                                                                            is or ever was                                                                  v.
Donovan,                                           Thus,                                                        the facts                                             a                         for
were known prior to sentencing and the defendant
to make  such facts known to the court, then
CPL                                                is
.  I
                                                   In deciding whether to exercise discretion                                                                                                   favor of a
                                                   moving defendant pursuant to subdivision                                                                                                     the court may
excuse the movant  for                                                                                          to                                                                              an issue on the record so
that it                                            have been                                                    to                                                                              review, if      the
ability to raise                                   had been                                                                                                                                     impaired or
                                                   v. Bennett, 30                                                                                                     283, 287-288                                                    Where the
                                                   to object was motivated                                                                                                                      by  strategy or
                                                   however, courts have found the
v.                                                 229                                                                                                                78                        Dept.,                                denied,
                                                                                                                                                                                                unjustified where defendant did not
                                                   issue because he was ignorant of                                                                                                                                                   ramifications
of                                                 facts and did not inform his                                                                                                                 of them due to
his distrust of                                    see                                                                                                                v.                        222
Dept.                                              denied, 88                                                                                                         886
                                                   Even if a motion to vacate is not barred by CPL  §
or                                                                                                              the court may, in certain circumstances, decide the
motion without a hearing, for                                                                                                                                                                   where the moving papers,
i n t e r  a l i a ,                               to                                                                                                                 a ground constituting a                                         or
basis for                                          motion                                                       §                                                     440.30
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[* 8 ]
I /
                                                                       CONTENTIONS                             ANALYSES
                                                                       A. Denial of for-cause                                                       to juror number two
1. Parties' contentions
Defendant first moves to vacate the conviction pursuant to
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440.10 (1)                                                             ,                                       on the ground that the trial court
I
denied his for-cause challenge as to prospective
;;jurornumber two.                                                     He alleges that notes prepared by the
district attorney and counsel for the co-defendant
jury selection and disclosed to defendant for the first
time during the reconstruction hearing, reflect that juror
I  '
,.numbertwo was unable to serve fairly.  Defendant further
,  asserts that the trial court slept through portions of the
, d i r e ,  thereby failing adequately to supervise jury selection.
,Finally, defendant contends that his request to recall juror
number two to clarify his answers was wrongfully denied by  the
.--                                                                    trial court.
The People argue that defendant's motion must be summarily
denied pursuant to CPL
They assert that the
Appellate Division rendered a decision on the merits of
I
CPL                                                                    440.10 (1) (f) provides that:
At  any time after the entry of a judgment, the court in
which it was entered may, upon motion of the defendant,
vacate such judgment upon the ground that:
,
and prejudicial conduct not appearing in
the record occurred during a trial                                     the
judgment which conduct, if      it had appeared in the
record, would have required a reversal of the judgment
upon an appeal therefrom  .
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[* 9 ]
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defendant's claim concerning the erroneous denial of the
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for-cause challenge of juror number two when it denied
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defendant's application for access to information concerning the
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juror and in its decision affirming defendant's conviction.
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They cite in support People v. Kahn, 281 AD  982                                                                                      Dept.
and People v.                                                           26                                                 574, 575   Dept.
Analvsis                                                                                                                                      I
a. CPL
I turn first to the issue of whether the Appellate Division
determined on the merits the propriety of the trial
court's denial of the for-cause challenge to juror number two.
(CPL                                                                    [a]).  Neither party has asserted that the issue
the denial of the for-cause challenge as to the juror was
raised on defendant's initial appeal.  Rather, both sides
apparently recognize that defendant appealed on the basis of      the
*.-
challenges to jurors five and eleven only, and the Appellate
Division ordered reconstruction as to their  v o i r  d i r e
examination responses only.                                             Desondea I, supra, at  41).
/,Moreoverţ he Appellate Division denied defendant's mid-hearing        i
i
'request for access to information with which to contact juror
two, presumably because defendant had not raised an
,appellate issue concerning that juror.
The Appellate Division's ultimate determination of the
'appeal, therefore, addressed only the issues which were
originally raised on appeal and referred for reconstruction,
,
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[* 10 ]
and eleven.  Defendant's claim concerning juror number two was
not addressed in the opinion, and under these circumstances,
clearly could not have been determined on the direct appeal.'
The                                                                       contention that the Appellate Division's
reference in its original decision ordering reconstruction to
in the record suggesting that the defense attorneys had
mischaracterized jurors' responses on  v o i r  d i r e ,  including,
presumably, the responses of prospective juror number two, could
not possibly constitute a decision on the merits as to the
denial of the cause challenge to that juror.  First of     a l l ,  the
"claim had not even been raised by defendant on appeal.  Second,
court had reached no decision on the merits of    the appeal in
its original opinion, but rather had ordered a reconstruction
hearing which was to address the issues which had been raised on
appeal,                                                                   the for-cause challenges to jurors numbers five
and eleven.  Finally, examination of the court's next statement
nakes clear that when examined in context, the Appellate
statement merely prefaced, and explained, its
Indeed, the court observed that when the appeal was
before it, "defendant urged a reversal based, i n t e r
upon  t w o  j u r o r s '  statements that they could not be fair
to friendships with police officers, and we remitted the
to the Supreme Court for a reconstruction hearing
the substance of  . . . two jurors' statements'during the
dire proceedings that relate to whether either juror
any genuine bias that would preclude such juror from
rendering an impartial verdict'"  (Desondea                               supra, at  245
[referring to jurors five and eleven]                                     [emphasis added]  .
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[* 11 ]
conclusion that                                                   existing record establishes nothing
definitively."                                                    at  41).  Accordingly, the court's statement
in no sense constituted a determination of     the issue on the
merits at that stage of the appeal.
For similar reasons, defendant's submission of    a
supplementary, post-hearing brief addressing the Appellate
Division's denial of his request for                              with which to
summon juror number two as a witness at the reconstruction
hearing could not have enlarged defendant's appeal to include a
new claim involving juror number two, particularly in light of
the fact that his testimony was never reconstructed.
Moreover, as the People conceded in their supplemental
appellate brief, the Appellate Division's denial of defendant's
request for information concerning the juror pursuant to
Judicial Law  §                                                   was not                                                            order made by a criminal
                                                                  court" within the scope of permissible review by an intermediate
ate court pursuant to                                                                                                                470 .15                            . Brief for
Respondent, at  54; Exh. S                                                                                                           Support of Defendant's Motion to
Vacate Judgment), and could not put before that court an issue
which had never been the subject of the appeal.
Finally, the cases cited by the People are inapposite, as
they each involve situations in which the contentions argued on
coram nobis  review had been raised and reviewed upon the
defendant's appeal.                                               v.                                                                 v. Kahn,
Here, as explained above, the issue of  juror number
two's competence was neither raised nor reviewed on the appeal.




[* 12 ]
                                                         For all of these reasons, defendant's                                     not subject
to summary                                               pursuant to CPL                            440.10 (2) (a) .
b.  CPL
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In                                                       the                                        of defendant's                                                                        the court
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may deny                                                                                            a hearing pursuant to CPL  §
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!                                                        the moving papers do not allege a ground                                                                                         a legal
                                                         for the motion.  The asserted legal                                       for defendant's
                                                         the                                        court's off-record             and
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conduct                                                                                                                            denying defendant's for-cause challenge as to
                                                                                                    juror number two.                                                                     §
                                                         The                                        to                             by an                                                  jury               a fundamental
                                                                                                    guaranteed by the                                                                                        and Fourteenth
Amendments to the                                                                                                                  States                                                                    and the New York
,
State                                                                                                                              art. I,  §  2 .  (Duncan v.                                               391 US
145, 151-54                                                                                                                        v. Branch, 46                                          645, 652
                                                                                                    more                           to the                                                 process than the
of an accused to                                                                                    by an                                                                                 jury."]).
Procedure Law  §                                                                                                                   safeguards that                                                           by
                                                         that a party may  challenge a                                                                                                    juror for cause                       the
                                                         a state of                                                                that is                                                to preclude                           from
rendering an                                                                                                                       verdict based upon the                                                    adduced
'at                                                                                                                                The Court of Appeals most  recently held that a for-
challenge must be granted when a juror expresses doubt
,about her ability to serve                              the                                        states
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on the record that she can be                            v.
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2001 WL  670065
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[* 13 ]
Here, defendant alleges that prospective juror number two
had  said that he could not be  fair and that the trial court
erred in denying the for-cause challenge.  There being both a
legal and a factual basis for his motion, a hearing                  ordered
to determine the substance of the juror's responses when
examined by the attorneys during  voir  d i r e .                    §                         440.30
                                                                                               B. Trial court's constructive absence from  v o i r  d i r e
                                                                                                                                                                                                                                       I
                                                                     1. Parties' contentions
                                                                                                                                                                                                                                       I
                                                                                               Defendant next asserts that the trial court was
                                                                                               constructively absent during portions of the  v o i r  d i r e .   He
                                                                     on                        v. Tolliver, 89                                                                                                      843   in arguing
that the trial                                                                                                                                                         periodic  sleeping during  v o ir  d i r e
amounted to a relinquishment of control over the proceedings
which deprived him of his constitutional right to a jury trial.
The People argue that summary denial of      this aspect of
defendant's motion is authorized by CPL  §                           as
defendant unjustifiably failed to raise any objection to the
trial court's alleged somnolence and that this failure to object
constituted an improper attempt' to obtain a tactical advantage.
They also argue that the trial court's expressed familiarity
with the juror's background establishes that he was not sleeping
during that portion of the  voir  d i r e ,  and have submitted an
affirmation from the assistant district attorney who tried the
case for the People attesting to the fact that he did not
13




[* 14 ]
observe the trial court sleeping.  (Aff. of William Greenbaum,
dated June  4 ,
Defense counsel responds by observing that such an
objection would have antagonized an already impatient judge and
could have seriously prejudiced defendant.  The defense also
maintains that defense counsel effectively raised the issue
through his repeated requests to requestion the prospective
jurors on the record, which were to no avail.
2. Analysis
a. CPL  §
According to witnesses for both the People and defendant at
the reconstruction hearing, the trial court was extremely
impatient during jury selection.  Indeed, this court made an
explicit finding in its ruling after reconstruction that the
trial court was  impatient and, at times, inattentive.  (Desondea
-.-
at  5 0 ) .   Moreover, the Appellate Division's finding
that defendant was                                                  in his effort to create an
adequate record for appellate review supports defendant's claim
that an objection would have been unavailing.  (See also
Yut                                                                 Tom, 53                      44 ,   55   [recognizing that extreme
form of trial court intervention in examining witnesses may
excuse defendant's failure to register objection]).
Thus, I find that trial counsel was  "substantially
impaired" in his ability to register an objection to                trial
court's somnolence by  that court's refusal of counsel's request
to recall the juror for further questioning.   In any case, I
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[* 15 ]
find that trial counsel raised the issue with the trial court by
requesting that the prospective jurors be recalled.  Under the
circumstances, such a request could have been viewed as a
tactful and risk-free method of permitting the trial court to
ensure that its previous failure to adequately attend to the
proceedings did not result in error.  Realistically, there was
little more trial counsel could do, short of leveling an
embarrassing accusation at the court.
Accordingly, CPL  §                                                        (a) poses no procedural bar to
defendant's motion to vacate the conviction due to the court's
somnolence.
b. CPL
The legal basis  for defendant's complaint that the trial
court slept during  v o i r  d i r e  is that he was thereby deprived of
his constitutional right to a jury trial.
presence of and supervision by a Judge constitutes an
                                                                                                            integral component of the right to a jury trial."                                                                  v.
Tolliver,                                                                                                   89                                                                       at  844).  In Tolliver, the trial court
                                                                                                            had absented itself from portions of the  v o i r  d i r e examination
                                                                                                            of      jurors by  counsel.  Observing that it is the trial court
                                                                                                            which must  rule with respect to the prospective                                                                   fitness
                                                                                                            to serve, the Court of Appeals held that                                 Judge who
                                                                                                            relinquishes control over the proceedings  .                             . deprives a
                                                                                                            defendant of the right to a trial by jury, requiring
, at                                                                       844;                             v. Pincknev, 272                                                         52                                        ,
                                                                           denied, 95                       937                                                                      [reversing conviction due to
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[* 16 ]
trial                                                                    absence from portion of  v o i r  d i r e ,  despite
defendant's consent]).  Clearly, a judge who sleeps
intermittently during  v o i r  d i r e cannot be viewed as exercising
any greater supervision over jury selection than the judge who
has physically removed himself or herself  from the courtroom
during portions of  v o i r  d i r e .
While research reveals no New York decision addressing a
defendant's entitlement to a new trial due to a claim that the
trial judge slept through a portion of the trial, in a case
closely paralleling this one, an Illinois appellate court
reversed the summary denial of a post-conviction motion raising
such a claim.  In                                                        v.                                                     314     671
                                                                         denied, 191                                            541     the defendant sought
review based upon the allegation that the trial
judge had been asleep for fifteen minutes during defendant's
trial on first-degree murder charges.  There, the court
reversed the lower court's summary denial of the petition,
that the defendant had sufficiently raised the                           of
meritorious claim for relief which was reviewable
notwithstanding the defendant's failure to raise the
issue at trial and despite the absence of any specific
of prejudice.
lefendant demonstrate that he was prejudiced by the court's
somnolence.                                                              United States v. White, 589                            1283,
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[* 17 ]
1289                                                                    19791                                                             [defendant must  show prejudice due to
court's somnolence in order to preserve  issue for appellate
review]).   In White, though, the defendant had  complained of the
trial court's somnolence during the defense counsel's opening
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statement to the jury as constituting judicial disparagement of
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counsel's argument.  The Fifth Circuit found that any resulting
prejudice                                                               so attenuated as to be                                            (United
States v. White,                                                        at  1289).
i
This case, however, presents a situation much closer to the
facts of                                                                than to those of White.   Defendant Degondea
                                                                        complains that the court failed to supervise voir dire, thereby   i
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depriving him of his fundamental right to an impartial jury.
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v. Arnold,                                                              v. Tolliver,                                                      People
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v .  Branch,                                                            As was the case                                                   v. Donley, supra,
where the judge was the finder of fact, defendant's allegations
* -
that the court did not supervise the voir  d i r e  bear directly
a critical role played by the trial judge, namely, the                  i
I
guardian of defendant's right to a fair trial, and do not merely
!
concern  the  court's  level  of  interest  in  a  defense  counsel's
!
statement.  Accordingly, they are sufficient to merit  a
!
hearing on his motion.  Moreover, defendant has alleged that he
in  fact prejudiced, in that the for-cause challenge to juror
number two was erroneously denied as a result of the court's
Finally, given the factual dispute presented  as  to the
court's conduct, a hearing must be held on whether the
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[* 18 ]
                                                                   court, in fact, slept.                                     §   440.30 E41               ,
C. Trial                                                                                            refusal to                                 recall of       Watson
Parties' contentions
Defendant finally maintains that the trial court
and capriciously denied his request to recall juror
two, thereby denying him the right to create an appellate
record.  Defendant claims that without  the ability to provide a
record on appeal due to the trial court's refusal, he
to a reversal of his conviction pursuant to CPL  §
$40.10 (1)                                                         .6
2. Analvsis
The Appellate Division clearly held in its decision
remanding for the reconstruction hearing that defendant was
an opportunity to make a record for appellate purposes.
(Desondea I, supra, 256                                            at  40;                          Desondea  11, supra, at
Given this decision, defendant's motion must be
pursuant  to CPL  §                                                (a), on the ground that it was
resolved on direct appeal.
CONCLUSION
For all of the foregoing reasons, defendant's motion is
to the extent that a hearing is ordered to determine:
6
CPL  §                                                             provides that:
At  any time after the entry of a judgment, the court in
which it was entered may, upon motion of the defendant,
vacate such                                                        upon the ground that:
The judgment was obtained in violation of a right of
the defendant under the constitution of this state or
of the United States.
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[* 19 ]
whether the trial court's somnolence or inattentiveness
resulted in a failure to supervise the  v o i r  d i r e ,  which caused
that court to fail to hear the complete v o i r  d i r e  examination of
juror number two; and                                                      whether the juror's responses revealed
that he was unqualified to serve as a juror and thus should have
been excused for cause.
Defendant's motion is otherwise denied.
This constitutes the                                                       findings of fact and decision and
order of this court.
Dated: July  9 , 2001
New York, New York
JUL  9
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