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Decisions

Appellate Division Grants New Trial Given Appellant's Absence From Courtroom

October 19, 2016

Daniel Gray was convicted of first-degree assault, first-degree robbery, and related counts, for which he was sentenced to over 30 years imprisonment, stemming from an incident in a barbershop in Queens, in which Mr. Gray purportedly shot and robbed an employee, and attempted to rob someone else.

During deliberations, the jury sent out a note indicating an impasse as to two counts and its verdict on the remaining charges.  With appellant not present, the court directed a court officer to return the verdict sheet to the jurors and advise them to write a note with their “issue.”

In a decision dated October 19, 2016, the Appellate Division, Second Department, reversed Mr. Gray’s conviction and ordered a new trial.  In its view, the court’s handling of the jury’s note amounted to a rejection of its verdict and an instruction to continue deliberating.  Thus, it was not merely a “ministerial” matter, but a material stage of the trial at which Mr. Gray was entitled to be present.  His absence, therefore, as well as the court’s delegation of the instruction to a nonjudicial officer, amounted to a mode of proceedings error that was per se reversible.

Erica Horwitz briefed and argued the case in the Second Department.