People v Irizarry

[*1] People v Irizarry 2009 NY Slip Op 51258(U) [24 Misc 3d 1204(A)] Decided on June 15, 2009 Supreme Court, Kings County Del Giudice, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2009
Supreme Court, Kings County

The People of the State of New York

against

Julio Irizarry, EDWARD TRUJILLO, JONATHAN CASTILLO, Defendants.



6676-2006



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Kevin James

Attorney for the defendant Irizarry:

Steven J Chaiken, Esq.

420 South Riverside Avenue, Number 199

Croton on Hudson, New York 10520

Attorney for the defendant Trujillo:

Charles Glaws, Esq.

Gruvman, Giordano & Glaws LLP

61 Broadway, Suite 2715

New York, New York 10006

Attorney for the defendant Castillo:

Iliana Santiago, Esq.

Brooklyn Defenders Service

177 Livingston Street, 5th Floor

Brooklyn, New York 11201

Vincent M. Del Giudice, J.

Each of the defendants was indicted for Criminal Possession of a Weapon in the Third and Fourth Degrees. A jury trial commenced before me on March 18, 2009. On March 27th, while the jury was deliberating, defendant Irizarry was granted a mistrial. Defendants Trujillo [*2]and Castillo did not move for a mistrial but agreed, in writing, to substitute two alternate jurors for two deliberating jurors. Later that day, the reconstituted jury found both remaining defendants guilty of Criminal Possession of a Weapon in the Third Degree. Sentencing was adjourned pending the outcome of defendants' post-trial motions.

Defendant Irizzary now moves for dismissal of the indictment, pursuant to CPL §§210.20 (1)(e), 40.20 (1) and 40.30 (1)(b), arguing that the willful misconduct of the prosecutor compelled the declaration of a mistrial against the wishes of the defendant.

Defendant Trujillo moves to set aside the verdict, pursuant to CPL §§330.30 (1) and (3), arguing that certain alleged Brady/Rosario violations, coupled with the ineffective assistance of defendant's trial counsel, require the verdict be set aside and a new trial ordered.

Defendant Castillo moves to set aside the verdict, pursuant to CPL §330.30 (1), arguing that the Brady/Rosario violations allegedly committed at trial require the verdict be set aside.

The People have filed an answer in opposition.[FN1]

All three defendants were arrested on August 15, 2006, on allegations they were in constructive possession of a loaded and operable 9 millimeter pistol, which was recovered inside defendant Trujillo's SUV. Trial commenced on March 18, 2009.

The People's theory of the case was that all three defendants drove in the same vehicle to Union and 4th Avenues, where they were met by an individual named Wesley. All three defendants were similarly dressed in black. Defendant Irizarry pulled out a gun, began shooting it into the air, while shouting for everyone to clear the area. All three defendants eventually re-entered defendant Trujillo's SUV and drove towards 4th Avenue.

Police Officer Alfredo Morgado heard the shots fired, responded to the scene, interviewed an eyewitness, Sally Lugo, and put the identifying information over the police airwaves. Police Officer David Jackson heard the radio call made by Officer Morgado and stopped the defendants' vehicle in the vicinity of Atlantic Avenue and Bond Street. Police Officer Paul Pasquarella responded to the arrest scene and observed the defendant Irizarry in physical possession of an 8 millimeter starter's pistol and various other items.[FN2] Officer Pasquarella also recovered a loaded 9 millimeter pistol from the rear passenger seat, where the defendant Castillo had previously been seated.

Back on Union and 4th Avenues, Officer Morgado and the crime scene unit recovered various items of ballistics.[FN3] The shell casings were vouchered and sent to the ballistics lab for [*3]analysis.

During Officer Morgado's direct examination, the prosecutor introduced into evidence the various pieces of ballistics. Officer Morgado opened the packets containing the vouchered items, and identified the contents as items he had recovered on August 15, 2006.[FN4]

During jury deliberations, the jury submitted a note [FN5] which stated the following: "We were exposed to a message that we were unsure if were (sic) supposed to see envelope/note No. 06F5785." The note referred to the ballistics envelope that contained the 9 millimeter shell casing [FN6] that was the subject of a previous note by the jury.[FN7] In the presence of all the parties, the court read the previously undisclosed portion of the ballistics envelope that it was alerted to by the jury: ".9 millimeter shell casing number 181506 recovered from the defendant Julio Irizarry right front cargo pocket by PO Pasquarella 78 Precinct."

During the course of the trial, no testimony was presented that any ballistics evidence had been recovered by any police officer at any location other than where the shots were fired. No evidence had been presented that any defendant physically possessed any ballistics evidence upon his person.

The court and each of the parties recognized the seriousness of the situation and a lengthy conference was held, in the presence of each of the defendants, in order to ascertain how this situation was allowed to occur and what could be done about it.

After consulting with all of the attorneys, the court decided to individually poll each of the jurors to determine whether they could continue deliberations fairly and impartially, despite having seen the notation in issue, which was not in evidence. Two jurors said they could not continue to deliberate in a fair and impartial manner knowing what had been inadvertently disclosed.

Not surprisingly, counsel for defendant Irizarry demanded, and was granted, a mistrial. The court concluded that the information that was recently disclosed, that ballistics was recovered from the pocket of defendant Irizarry, could cause the jury to conclude that the weapon in question belonged to the this defendant.

Defendants Trujillo [FN8] and Castillo, however, did not request a mistrial but ultimately consented, in writing, to the substitution of two alternate jurors for the two jurors who stated [*4]they could no longer be fair and impartial.[FN9] Each defendant made a strategic trial decision that it was in their best interest to proceed to verdict with the reconstituted jury. The court accepted their requests.[FN10]

The reconstituted jury found the defendants Trujillo and Castillo guilty of Criminal Possession of a Weapon in the Third Degree. Both defendants were permitted to remain free on bail pending sentence. Each of the three defendants have filed motions seeking various forms of relief.

BRADY

As recently set forth by our Court of Appeals:

The Due Process Clauses of the Federal and State Constitutions both guarantee a criminal defendant the right to discover favorable evidence in the People's possession material to guilt or punishment (see Brady v Maryland, 373 US 83, 87-88; People v Bryce, 88 NY2d 124, 128 [1996]). Impeachment evidence falls within the ambit of a prosecutor's Brady obligation (see Giglio v United States, 405 US 150, 154-155 [1972]). To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material (see Stricker v Green, 527 US 263, 281-282 [1999]).

In New York, when a defendant makes a specific request for a document, the materiality element is established, provided there exists a "reasonable possibility" that it would have changed the result of the proceedings (see People v Vilardi, 76 NY2d 67, 77 [1990]). Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a "reasonable probability" that it would have changed the outcome of the proceedings (see Bryce, 88 NY2d at 128; People v Hunter, 11 NY3d 1, 5 [2008]).

(People v Fuentes, 12 NY3d 259, 263).

The defense has failed to show that it made a specific request to examine the ballistics evidence prior to trial (Vilardi, 76 NY2d at 77). "[In] cases where there has been no request, or only a general request for exculpatory material, the prosecutor's duty to disclose arose entirely from the notice provided by the very nature of the evidence, and the standard for a new trial was higher: undisclosed exculpatory evidence was material only if it create[d] a reasonable doubt that did not otherwise exist'" (Vilardi, 76 NY2d at 73, quoting United States v Agurs, 427 US 97, 112). [*5]

Since the theory of prosecution was that the defendants were acting in concert with each other, the fact that ballistics evidence was found in the pocket of one defendant, but not the others, was not exculpatory with respect to the other two defendants. The non-disclosed evidence might have been useful to impeach the testimony of the police officers that all ballistics evidence was recovered at the scene of the shooting. However, this evidence was not suppressed by the prosecution; the Assistant District Attorney was as surprised as the defense attorneys to learn of this development.[FN11] In addition, the defense has failed to demonstrate that prejudice arose because of the non-disclosure. Because of the theory of the prosecution, the court finds that this non-disclosed information did not rise to the level of creating a reasonable doubt that did not otherwise exist.

Even if this court were to decide that the undisclosed evidence was exculpatory and created a reasonable doubt that would otherwise not exist, the next step is what remedy should be imposed. In this case, when the court became aware of the jury's note, the parties were immediately consulted in order to draft an appropriate response to the jury's note. After much discussion, the court asked the defendants what relief they sought. Defendant Irizarry requested a mistrial. That request was granted. Defendants Trujillo and Castillo requested to proceed with the substituted jurors and a judicial admonishment for the reconstituted jury not to consider what was written on the inner evidence envelope on People's exhibit 23. Those requests were also granted.

Defendants now claim that the alleged Brady violation requires a new trial. That application must be denied. The defendants received the remedy they had requested upon discovery of the impropriety. The jury chose to convict the defendants Trujillo and Castillo. The court can only assume that the jury followed the court's admonition and did not consider the undisclosed evidence in reaching their verdict (People v Hawkes, 39 AD3d 1209 [4th Dept 2007], lv denied 9 NY3d 845).[FN12]

DOUBLE JEOPARDY

With respect to the defendant Irizarry, his attorney alleges that the mistrial was caused by the willful misconduct of the prosecution and/or by one or more of its witnesses.

As stated in Davis v Brown (87 NY2d 626, 630):

[W]hen the defendant requests or consents to a mistrial, double jeopardy typically erects no barrier to a retrial. There is one situation, however, in which retrial will be barred even though the defendant requests, and thereby consents to, a mistrial when the prosecution deliberately provokes a mistrial (see Oregon v Kennedy, 456 US 667, 673). When the prosecution fears the case is headed toward acquittal and intentionally causes a mistrial, the [*6]calculated result of this prosecutorial misconduct is to deprive the defendant of the right to have the case completed before the first jury. In such a case, a second trial of the defendant would constitute an impermissible second bite at the apple for the prosecution, in direct violation of the letter and spirit of both the State and federal Double Jeopardy Clauses' prohibitions against repeated prosecution.

In contrast to defendant Irizarry's claim, the prosecutor in this case did not intentionally cause a mistrial. Proof can be found in the timing of the discovery of the impropriety: during jury deliberations, after the case had been given to the jury. Even if the prosecutor believed his case was heading towards acquittal, he did nothing deliberately to provoke a mistrial. The prosecutor might have been negligent, but he did not act intentionally.

Accordingly, defendant Irizarry's claim of a double jeopardy violation is meritless and his motion to dismiss the indictment is denied.

ROSARIO

Our Court of Appeals summarized the evolution of the Rosario rule in People v Machado (90 NY2d 187, 191):

Motivated by the "right sense of justice," this Court 36 years ago in People v Rosario (9 NY2d 286, 289, cert denied 368 US 866) established a new rule regarding the disclosure of statements by prosecution witnesses. Before Rosario, a trial court determined which documents were relevant to the defense and ordered production accordingly; where discovery was erroneously denied the appellate court applied a harmless error test. Rosario changed the practice by requiring the People to turn over pretrial statements of prosecution witnesses, leaving it for the single-minded counsel for the accused rather than trial courts to determine the value of those statements to the defense. With harmless error still the standard, this equilibrium continued for 15 years, until People v Consolazio (40 NY2d 446, 454, cert denied 433 US 914). Consolazio articulated a rule of per se reversal, in order to assure the People's scrupulous adherence to their obligation to turn over Rosario material (see also, People v Jones, 70 NY2d 547, 551-553; People v Perez, 65 NY2d 154, 159-160). The price for the People's failure to disclose prior statements of their own witnesses thus became automatic reversal of the conviction, a standard this Court has continued during the past two decades to apply to Rosario claims raised on direct appeal (see, e.g., People v Banch, 80 NY2d 610; People v Young, 79 NY2d 365; People v Ranghelle, 69 NY2d 56).

In formulating these principles, which balanced the various societal and individual interests involved, the Court was guided solely by its own precedents, as a matter of common law. Although the Legislature codified the Rosario rule (CPL 240.45[1][a]), it prescribed no other standard of review.

CPL 240.45[1]provides that "[a]fter the jury has been sworn and before the prosecutor's opening address ... the prosecutor shall ... make available to the defendant: (a)[a]ny written or recorded statement ... made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony." However, CPL 240.75 also provides that "[t]he failure of the prosecutor or any agent of the prosecutor to disclose statements that are [*7]required to be disclosed ... shall not constitute grounds for any court to ... set aside a conviction ... in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial" (see People v Jackson, 78 NY2d 638, 646; People v Wolf, 284 AD2d 102, 103-104 [1st Dept 2001], aff'd 98 NY2d 105; People v Barrington, 21 Misc 3d 1149(A) [Sup Ct Bronx County 2008]).

In this case, the People failed to disclose the contents of the ballistics envelope, People's exhibit 23, which contained a handwritten statement that the content of that envelope was recovered from defendant Irizarry's pants pocket. Although the prosecutor committed a Rosario violation when the contents of the ballistics envelope was discovered by the deliberating jury, there was no showing that any defendant was substantially prejudiced by the delay in disclosure (People v Chia Yen Yun, 35 AD3d 494, lv denied 8 NY3d 920) and the court exercised its discretion in arriving at an "appropriate" sanction based upon the circumstances (People v Kelly, 62 NY2d 516, 521 [1984]).

As stated earlier, in the context of the alleged Brady violation, the court discussed the appropriate sanction to be imposed with each of the attorneys. Counsel for the defendant Irizarry requested, and was granted, a mistrial. Counsel for defendants Trujillo and Castillo both requested, and were granted, a substitution of two alternate jurors, and an admonishment to the reconstituted jury, in order to allow their case to be decided by the jury they had selected.

Accordingly, defendants Trujillo and Castillo's motion to set aside the verdict and defendant Irizarry motion for dismissal of the charges against him, based on the People's alleged Rosario violation, is denied.

INEFFECTIVE ASSISTANCE OF COUNSEL

In addition to the foregoing, defendant Trujillo claims the verdict must be set aside because his trial counsel provided ineffective assistance.

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6; People v McDonald, 1 NY3d 109, 113 [2003]).

In Strickland v Washington (466 US 668 [1984]), the United States Supreme Court established a two-part test for evaluating a defendant's Sixth Amendment claim of ineffective assistance of trial counsel. To prevail upon such claim, a "defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense" (Strickland, 466 US at 687; Mc Donald, 1 NY3d at 113). "The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness" (Mc Donald, 1 NY3d at 113; Hill v Lockhart, 474 US 52, 58 [1985]). The second prong, the requirement of prejudice, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the trial (People v Stultz, 2 NY3d 277, 283-284 [2004]).

New York has long recognized the importance of adequate counsel in criminal cases (eople v Silverman, 3 NY2d 200 [1957]; People v McLaughlin, 291 NY 480 [1944]). In People v Baldi (54 NY2d 137, 147 [1981]), the New York Court of Appeals set standards for claims of ineffective assistance of counsel in this State, holding that the constitutional requirements of effective assistance of counsel are met whenever the defense attorney provides "meaningful representation."

The absence of Strickland's prejudice requirement is the distinguishing characteristic of Baldi. As stated by our Court of Appeals in Stultz (2 NY3d at 283-284): [*8]

Under our Baldi standard, we are not indifferent to whether the defendant was or was not prejudiced by trial counsel's ineffectiveness. We would, indeed, be skeptical of an ineffective assistance of counsel claim absent any showing of prejudice. But under our Baldi jurisprudence, a defendant need not fully satisfy the prejudice test of Strickland. We continue to regard defendant's showing of prejudice as a significant, but not dispositive, element in assessing meaningful representation. Our focus is on the fairness of the proceedings as a whole.

"While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (People v Benevento, 91 NY2d 708, 714 [1998]). "Whether defendant would have been acquitted of the charges but for counsel's errors is relevant, but not dispositive under the State constitutional guarantee of effective assistance of counsel," because "our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence" (Benevento, 91 NY2d at 714, quoting People v Donovan, 13 NY2d 148, 153-154 [1963]).

"To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure[s]" (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Taylor, 1 NY3d 174, 177 [2003]; Benevento, 91 NY2d at 712; People v Bussey, 6 AD3d 621, 622). "[T]rial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (Baldi, 54 NY2d at 146-147; Bussey, 6 AD3d at 622).

The facts and circumstances of this case compels this court to find that the quality of the legal representation provided to defendant Trujillo was so insufficient that the integrity of the judicial process was placed in jeopardy (Benevento, 91 NY2d at 714). The court does not make this judgment lightly. A jury has rendered a verdict. A veteran member of the bar [FN13] has been accused of providing ineffective assistance of counsel by a defendant who, if the verdict were upheld, would be a predicate violent felon.

This court does not intend to demean, degrade, nor ridicule trial counsel for defendant Trujillo. In fact, after the verdict was announced in this case, counsel agreed with the court that another attorney should be assigned to assist counsel in filing the motions after trial (CPL 330.30). Trial counsel graciously volunteered that if his level of representation were to become an issue, he would immediately seek leave to withdraw from the case and would provide the newly appointed attorney with whatever assistance he could render. Several days after the assignment of a new attorney,[FN14] trial counsel asked to have the case advanced so he could be relieved from further representation of defendant Trujillo.

Defendant Trujillo has submitted an affidavit in which he claims his trial attorney was asleep at least three times during the trial and that he was reading health and fitness magazines during the course of witness' testimony. Defendant also claims his counsel failed to explain the trial [*9]proceedings to him and would change the subject whenever the defendant broached the subject. Mr. Trujillo also claims his attorney gave a bizarre opening statement that caused the jurors to laugh at the attorney and at the defense. Mr. Trujillo also claims his attorney failed to adequately explain the options available when the issue of juror substitution was raised.

With respect to each of the issues raised by defendant Trujillo:

Point 1

At one point during the trial, this court stopped the proceedings and required all parties to engage in a side bar, because I observed counsel for the defendant Trujillo apparently sleeping at the counsel table. The court asked counsel, at side bar, if he was feeling well and if he needed a break to eat or drink anything. The court is aware of a pre-existing medical condition of counsel and gave counsel every opportunity to revive himself, if necessary, prior to the continuation of the trial;

Point 2

While this court cannot corroborate defendant Trujillo's claim that counsel was reading a health and fitness magazine during the course of the trial, the court did observe a magazine fall to the floor during the trial proceedings and observed defendant Trujillo's counsel pick up the magazine;

Point 3

This court cannot verify the content or extent of counsel's conversations with defendant Trujillo, nor do I feel it is necessary to take testimony on this matter;

Point 4

Counsel for the defendant Trujillo did, indeed, give a bizarre opening statement. The beginning of counsel's opening statement was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel's opening statement and such laughter at a member of the bar created an unprofessional atmosphere;

Point 5

With respect to the issue of juror substitution, the court finds no merit to defendant's claims that his attorney did not fully explain his options. Initially, counsel for defendant Trujillo refused to consent to the replacement of a sworn juror with an alternate. The court then asked counsel if this was the defendant's decision or merely that of counsel. Counsel then consulted with his client and the defendant Trujillo then informed the court that he wanted to substitute two alternate jurors for the two excused jurors. This court then engaged in an extensive dialogue with defendant Trujillo, to insure that he was making a knowing, intelligent and voluntary decision. Defendant Trujillo signed a formal waiver, in open court, on the record, in which he affirmed that his attorney and the court had explained all of his options to his satisfaction and that it was his decision to substitute the alternate juror.[FN15] [*10]

In addition to the points raised in defendant Trujillo's affidavit, in his moving papers, defendant's current attorney also claims trial counsel was ineffective for not objecting to evidence of uncharged crimes, for not objecting to an alleged Trowbridge [FN16] error, for not questioning several witnesses, for failing to file a motion to sever his case from that of his co-defendants and for several other evidentiary decisions made during the course of the proceedings. However, none of the other attorneys objected to the uncharged crimes evidence, nor did any of the other attorneys move for a severance, or to rectify an apparent Trowbridge violation. In short, many of the alleged errors cited by defendant Trujillo's current attorney failed to show that this defendant was deprived of "meaningful representation" (Baldi, 54 NY2d at 147).

The People rightfully claim the defendant Trujillo has failed to show any prejudice resulted from the alleged ineffectiveness of his counsel. Although no prejudice was set forth by the defense, prejudice is not a dispositive element in the State of New York. Our courts must focus on the fairness of the judicial process as a whole, rather than its particular impact on the outcome of the case (Benevento, 91 NY2d at 714).

What makes this case different, however, is not any particular decision made by trial counsel, nor with his apparent decision to ask minimum questions of the witnesses. What was most troubling to the court was that it appeared that defendant Trujillo was not getting "meaningful representation," as required by Baldi.[FN17]

It is very unusual for this court to criticize a member of the bar and I am hesitant to do so in this opinion. This is a learned profession and I appreciate and enjoy watching members of the bar perform their craft. However, during this trial, I found myself very uncomfortable whenever defendant Trujillo's counsel addressed either a witness or the jury. It was impossible to predict what he was going to say. Based upon all of the foregoing, I conclude that this defendant did not receive the minimum level of representation that is required by law.

Accordingly, defendant Trujillo's motion to set aside the verdict, made pursuant to CPL §330.30 (1), is hereby granted (CPL §330.40[2][c]). I find that the defendant Trujillo has submitted sworn allegations of fact, based upon personal knowledge, of all facts essential to support his ineffective assistance of counsel motion (CPL §330.40[2][a]). The People have failed to submit an answer denying or admitting any or all of the allegations contained in the defendant's moving papers (CPL §330.40[2][b]). In accordance with CPL §330.50(1), this court grants the defendant Trujillo's request for a new trial.[FN18]

The defendant Castillo's case will proceed to sentence. The Department of Probation is hereby ordered to prepare an investigation in aid of sentencing report (CPL §390.20 [1]). Counsel for defendant Castillo and the Assistant District Attorney are advised that the court will accept pre-sentence memorandums, as an aid in sentencing, provided the procedures set forth in CPL §390.40 are complied with.

This constitutes the decision, opinion and order of the court. [*11]

_________________________

Vincent M Del Giudice

Judge of the Court of Claims

Acting Supreme Court Justice

Dated: June 15, 2009

Brooklyn, New York Footnotes

Footnote 1:Curiously, the People's responding papers do not include an affidavit, or affirmation, from the trial assistant, nor any indication that the comments attributed to him were being made under the penalties of perjury.

Footnote 2:Throughout the trial, the prosecutor attempted to link each of the defendants to the others, under an acting in concert theory, by referring to various articles of paraphernalia that were recovered at the time of each defendant's arrest. None of these items, which the prosecutor claimed showed that these defendants were impersonating law enforcement, resulted in any additional criminal or administrative charges.

Footnote 3:Some of the shell casings were for the 8 mm starter's pistol. Shell casing number 1815006 was from a 9 mm.

Footnote 4:The contents of the ballistics envelopes, not the envelopes themselves, were admitted into evidence.

Footnote 5:Court exhibit 7; hereafter referred to as the "exposed to" note.

Footnote 6:People's 23 in evidence.

Footnote 7:Court exhibit 6. Upon receipt of this note, the jury was given the ballistics envelopes as well as their contents. Pursuant to an agreement entered into by all the attorneys and the court, any requested exhibits were to be forwarded to the jury without the reconvening of the parties.

Footnote 8:While defendant Trujillo's attorney initially requested a mistrial, after conferring with his client, counsel agreed to the substitution of jurors, as will be further expanded upon later in this opinion.

Footnote 9:Defendant Trujillo's signed substitution waiver was court exhibit 8. Defendant Castillo's signed substitution waiver was court exhibit 9.

Footnote 10:Despite the court's stern instruction for the reconstituted jury not to consider the newly disclosed information as part of their deliberations, defendants Trujillo and Castillo could have reasonably calculated, as part of their trial strategy, that the jury would be unable to set this information aside and attribute the firearm solely to defendant Irizarry.

Footnote 11:This court would expect a diligent prosecutor to examine his evidence before announcing ready for trial. This was not done in this case, as the prosecutor admitted to the court during the lengthy conference with respect to the jury's "exposed to" note.

Footnote 12:Unless otherwise referenced, all Appellate Division citations are from the Second Judicial Department.

Footnote 13:The name of defendant Trujillo's counsel has been deliberately omitted from publication.

Footnote 14:This attorney was provided under County Law Article 18-b.

Footnote 15:Court exhibit 8.

Footnote 16:People v Trowbridge, 305 NY 471 (1953).

Footnote 17:People v Baldi, 54 NY2d 137 (1981).

Footnote 18:Absent a further order of this court, the defendants Trujillo and Irizarry will be tried together.