People v. Nimmons, 72 N.Y.2d 830 (1988)
It is reversible error for a trial court to furnish the jury with the text of a statute without the consent of defense counsel, regardless of whether the error appears harmless.
Summary
The defendant was convicted of second-degree assault. After the jury requested it, the trial court furnished them with a copy of the pertinent statute without the defense counsel’s consent. The Appellate Division acknowledged the error but deemed it harmless and affirmed the conviction. The Court of Appeals reversed, holding that furnishing the statute to the jury without the defense counsel’s consent is reversible error, irrespective of whether the statute impacted the jury’s deliberation on the defense of justification.
Facts
The defendant was convicted of second-degree assault as a second felony offender. After the trial court charged the jury, the jury requested a copy of the relevant statute. Over defense counsel’s objection, the trial court provided the jury with the text of the statute.
Procedural History
The trial court convicted the defendant of second-degree assault. The Appellate Division affirmed the conviction, deeming the trial court’s error of providing the statute to the jury without consent as harmless. The New York Court of Appeals reversed the Appellate Division’s order, ordering a new trial.
Issue(s)
Whether it is reversible error for a trial court, after its charge in the assault trial, to furnish the jury, on its request and over defense counsel’s objection, with a copy of the actual text of a pertinent statute.
Holding
Yes, because the consent of defense counsel is an “absolute precondition” to furnishing the jury with the text of a statute, and the error cannot be deemed harmless.
Court’s Reasoning
The Court of Appeals relied on CPL 310.30 and People v. Owens, 69 N.Y.2d 585 (1987), stating that defense counsel’s consent is an “absolute precondition” to furnishing the jury with a statute. The court reasoned that questions may arise concerning which sections of pertinent statutory material should be given to the jury. Here, the statute submitted, section 137(5) of the Correction Law, referred only to the permissible use of force by correction officers, without considering the defendant’s defense of justification. The Court stated that distributing the statute to the jury without counsel’s consent is prohibited by CPL 310.30 and, like the distribution of written excerpts of a jury charge considered in Owens, the error cannot be deemed harmless. The Court drew a parallel to People v. Owens, emphasizing the importance of ensuring that the jury receives statutory material only with the informed consent of the defense, to avoid potential prejudice. The court noted that the statute given to the jury focused on the permissible use of force by correction officers but did not address the defendant’s justification defense. The court suggested that potential prejudice from lost grand jury testimony could be mitigated at retrial with a limiting instruction.