People v Minnamon
Annotate this CaseDecided on May 1, 2012
County Court, Yates County
The People of the State of New York,
against
Randall Minnamon, Defendant.
3326
Hon. Jason L. Cook
Yates County District Attorney,
(Adrienne M. Muia., of counsel)
Counsel for the People
Adam H. Van Buskirk, Esq.
Counsel for Defendant.
W. Patrick Falvey, J.
MEMORANDUM-DECISION AND ORDER
W. Patrick Falvey, J.C.C.
The judgment of conviction is reversed on the law, as a matter of discretion in the interest of justice. Cumulative errors occurred in the proceedings below that, although not timely protested, deprived defendant of a fair trial. And, the evidence adduced at trial was not legally sufficient to establish defendant's guilt for the offenses of which he was convicted.
The defendant appeals from a October 19, 2011, Italy Town Court non-jury conviction of two counts of Reckless Operation of a Vessel, Navigation Law §45(1)(a), a misdemeanor crime, punishable by up to 30 days imprisonment, pursuant to Navigation Law §73-b. Defendant was sentenced at the conclusion of the trial to a fine and mandatory surcharge.
On August 13, 2011, the defendant was operating his motorboat on Canandaigua Lake, with several passengers on board, when he was stopped by a Yates County Sheriff Boat. The two sheriff deputies stopped the defendant because they had seen two of defendant's adult passengers lying on the sun deck of the boat while it was under way. After he was stopped, one of the officers asked him to produce various required safety equipment. He complied as his boat was in full compliance with all required safety equipment. The defendant was ticketed with one charge of reckless operation, because of the two passengers on the sun deck.
The defendant represented himself throughout the proceedings in the Town Court. The ticket called for him to appear in the Italy Town Court on September 7, 2011. The actual [*2]arraignment date is unclear from the record, since the transcript of the arraignment states a date of May 19, 2011, which is obviously in error, he having been issued a simplified information on August 13, 2011, charging one count of Reckless Operation. At the arraignment, the Justice referred to the charge as a navigation violation. The trial date was set for October 19, 2011.
When the defendant next appeared in court for the trial on October 19, 2011, he was informed that the charge was a misdemeanor, not a violation. He was also issued a second ticket that night, for the same offense. Before the trial commenced, the ADA offered to allow the defendant to plead to one of the now two charges lodged against him. The defendant declined, and the case proceeded to trial. Although now clearly charged with misdemeanors, the defendant was not advised of his right to a jury trial.
At the commencement of the trial, the prosecutor provided the defendant with a CPL §710.30 notice regarding statements he had allegedly made after the stop on August 13, 2011. The defendant questioned the propriety of this late notice, but the trial then proceeded. At the end of the trial, the Justice found defendant guilty of both charges, referencing and quoting from "the New York State Safe Boating" manual. (Transcript pg 45).
The defendant argues:
He was not properly arraigned, in that he was not properly informed of the level of the offense charged at the arraignment, the judge telling him it was a violation and the conviction would not appear on his record. He did not learn that Reckless Operation of a Vessel was a misdemeanor, until he arrived at court for the trial.
He was not informed of his right to a jury trial. The court improperly conducted a bench trial without obtaining a waiver of jury trial from the defendant.
He was improperly presented with a second "uniform ticket" for the first time at the commencement of the trial. When he was stopped in the lake, he was issued one ticket for one offense. When he appeared for the trial, he was handed a second ticket for the same offense, in regard to a second passenger.
He was improperly tried upon uniform tickets instead of verified informations. CPL §100.40.
5.The court improperly allowed the People to admit the defendant's alleged statements to the officers at the trial, due to late and improper service of the CPL §710.30 notice.
6.In reaching its verdict, the court improperly relied upon a NY State Safe Boating manual. Grafting the non-statutory document onto Navigation Law §45(1)(a) violates the constitutional prohibition of incorporation by reference. NY Const [*3]Art 3, section 21.
7.The evidence was legally insufficient to sustain the verdict.
8.The verdict was against the weight of the evidence.
The People in their responding brief, argue that the appeal should be denied. They make the following arguments:
1.The Defendant failed to preserve the issue concerning the arraignment by making a contemporaneous objection at the trial. He also failed to move for a trial order of dismissal. People v Perkov, 227 AD2d 960 (4th Dept., 1996); People v Cuff, 231 AD2d 427 (1st Dept., 1996). So the court should decline to examine these claims.
2.Defendant failed to preserve for review his claim regarding a jury trial. People v Bynum, 70 NY2d 858 (1987).
3.The statute of limitations had not expired when the People charged the Defendant at the commencement of the trial with the second charge. CPL §30.10[2][c]. And, Defendant failed to move for a trial order of dismissal at conclusion of the People's case.
4.Defendant was properly tried on simplified informations. CPL §100.40[2]. Defendant could have asked for a supporting deposition, but did not. CPL §100.25[3].
5.Defendant was issued a second simplified information for Reckless Operation prior to trial on October 19, 2011, and so the 710.30 notice was served within 15 days after arraignment and before trial as required by CPL §710.30[2], it being served on the date of the trial. Defendant never motioned to suppress the statements contained in the 710.30 notice. CPL §710.60[1]. Nor did he move for an adjournment.
6.The boater's manual was mentioned, but it was not the sole basis for the court's verdict. See Justice Return Points V and VI.
7.The trial evidence was legally sufficient.
8.The verdict was not against the weight of the evidence.
Upon review of the papers submitted, and upon the record on appeal, including the transcript of the arraignment, the court concludes that the arraignment was flawed, in that the defendant was not notified that he was charged with a misdemeanor. Instead, he was led to believe that the charge was a violation.
The trial court also erred when it did not inform the defendant of his right to a jury trial. A defendant accused of a misdemeanor is entitled to a jury trial under CPL §340.40 and to waive a jury trial, the specific waiver requirements of CPL §320.10 must be followed. See People v [*4]Ahmed, 66 NY2d 307 (1985). Even though not preserved for review by timely objection in the trial court, the court may consider this issue because the failure to notify the defendant of his right to a jury deprived him of a fair trial, resulting in reversible error. CPL §470.15(6).
The court agrees with defendant that the presentment of a second ticket at the commencement of the trial was improper. The pro se defendant, prepared to try his case by himself, was served with a second ticket just as he was about to be tried for one offense. Perhaps, as the defendant argues, this was designed to pressure this pro se defendant to take a deal. However, he would have gotten the same result at the end of an unsuccessful defense of the one charge he was already facing as he entered the courtroom for the trial. But, this tactic also laid the ground work for the prosecutor to introduce as evidence, the alleged statement made by the defendant to the deputy when he was stopped, since no CPL §710.30 notice had been timely served following the arraignment on the first lodged charge.
The prosecutor, unhindered by a law trained judge or a defense attorney, gave the defendant the 710.30 notice at commencement of trial, apparently deeming arraignment on the second charge to have occurred at the commencement of the trial which, the People argue, makes service of the 710.30 notice on October 19, 2011, timely. This Court does not agree. The 710.30 notice "must be served within fifteen days after arraignment, and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial...to suppress the specified evidence." CPL § 710.30(2). The People offered no excuse or reason for waiting until the trial date to serve the 710.30 notice on the defendant. The defendant was not accorded a reasonable opportunity to move to suppress the evidence before the trial commenced. Therefore the notice was untimely. The trial Judge reached the same conclusion as evidenced by paragraph "V" of the Justice's Return, wherein he acknowledges the untimeliness of the 710.30 notice. "In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial..." CPL §710.30(3).
The defendant did not testify at the trial, but the two arresting officers improperly and unfairly included the defendant's statements allegedly made to them at the time of the stop. This was error.People v Spruill, 47 NY2d 869 (1979). And, this error deprived the defendant of a fair trial, because without the evidence of the defendant's statements, the proof presented was not legally sufficient to establish defendant's guilt beyond a reasonable doubt.
The first officer was asked by the prosecutor for the "sum and substance" of his conversation with Mr. Minnamon. (Trans., pg 14): A. When I asked him when I first stopped him, I asked him, do you know why didn't[sic.] stopped you. And he said probably the fellas on the back or something such asthat. (Trans., pg 14-15).
Later, the officer testified:
A. And I said then you should have known better, and he said I know. (Trans. Pg 16).
A bit later, the officer testified: A. I filled out the back of my sheet, which was the verbiage that Mr. Minnamon hadarticulated during the stop, including that he said his trim was up, that he was onlygoing 30 miles an hour. (Trans., pg 16).[*5]
The above improperly submitted proof was the only proof of the defendant's speed, and included an admission of guilt.
Omitting this proof and on a review of the remaining proof, the Court concludes that the People failed to prove beyond a reasonable doubt that the defendant unreasonably interfered with the free and proper use of the navigable waters. One of the officers testified that the area where the defendant was stopped was crowded, but on cross examination, when asked what the closest traffic was, the officer responded there were a couple of boats in the vicinity, but couldn't say how far away they were. The testifying officers' speculation at trial that the defendant's passengers might fall into the water also was insufficient to prove this element of the offense.
The People failed to prove that the defendant unreasonably endangered a vessel or person, or that the defendant acted recklessly in allowing two adult individuals, who were swimmers, to lay on the sun deck while the boat was moving. The People's witnesses were unable to articulate a vessel or person that was unreasonably endangered by defendant's actions. The People's first witness testified that it is illegal to ride on the bows or the gun wale or the transom in New York State. However, Navigation Law §45(1)(a) does not so state.
The proof was insufficient that defendant acted recklessly. "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." PL §15.05(3).
Defendant's cross examination of the People's witnesses and his proof during his defense successfully countered any proof that he acted recklessly. The defendant produced all the required safety equipment when asked by the arresting officer after the stop. The first arresting officer conceded during cross examination that "all situations require consideration" when considering whether reckless operation occurred when passengers are riding on the sun deck. (Trans. pg. 17). The second officer on cross examination stated there were " a couple of boats" in the vicinity, but didn't know how far away they were. (Trans. pg. 25). There was no proof of how fast the defendant was going, when his statements to the officers, as testified to at the trial, are omitted.
The defendant's witness was a passenger on the boat that day. He testified that the passengers were capable of swimming, and that the water was fairly calm with one to two feet wave height.
The trial court erred in finding defendant guilty by referring to the non-statutory authority of a boating guide. See for example, City ov Buffalo v Beck, 205 Misc 757 (1954), where the court erred in taking judicial notice of the theory of operation and accuracy of a radar device in measurement of speed of automobiles.
CPL §470.15(1) provides that intermediate courts may consider any question of law or issue of fact involving error or defect in the criminal court proceedings, which may have adversely affected the appellant.CPL §470.15(6) provides: "The kinds of determinations of reversal or modification deemed to be made as a matter of discretion in the interest of justice include (a) that an error or defect occurring at a trial resulting in a judgment, which error or defect was not duly protested at trial as prescribed in subdivision two of section 470.05 so as to [*6]present a question of law, deprived the defendant of a fair trial."
Cumulative errors, although unpreserved may result in reversal. People v Wright, 215 AD2d 299 (1st Dept 1995).
When a defendant is found guilty after trial, the reviewing court must view the evidence in the light most favorable to the People. People v Contes, 60 NY2d 620,621 (1983), and this court must assume that the trial judge credited the prosecution's evidence the full weight that might reasonably be accorded it. People v Benzinger, 36 NY2d 29 (1974). Here, however, the portion of that evidence discussing the defendant's statements made to the deputies must be stricken, because it was admitted in violation of the defendant's right to a timely CPL §710.30 notice.
Accordingly, the judgment convicting defendant of two counts of Reckless Operation of a Vessel (Navigation Law §45) is reversed, as a matter of discretion in the interests of justice.
Based upon the foregoing the appeal is granted, and this case is dismissed.
The foregoing constitutes the Opinion, Decision and Judgment of this court.
SO ORDERED.
Dated: May 1, 2012
_________________________
W. Patrick Falvey
County Court Judge
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