People v. Lewis

OPINION OF THE COURT

The issues on this appeal are whether the trial court ran afoul of CPL 310.20 (2) when it submitted to the jury a verdict sheet containing the locations of the designated offenses, and

Defendant and two codefendants engaged in a sophisticated scheme to steal property through the use of forged credit cards. They first acquired credit card numbers from legitimate accounts of cardholders who lived in other states. Then, with the aid of a “reader/writer” machine — a device that reads and writes the magnetic strips on credit cards — they placed the stolen information on the strips of blank cards that had been fabricated to look like genuine credit cards bearing the conspirators’ names or aliases. With forged cards in hand, defendant and his codefendants made purchases at several stores in Manhattan.

In January 2007, investigators from the New York County District Attorney’s Office obtained an eavesdropping warrant allowing them to wiretap two of defendant’s cell phones. Via the wiretaps, investigators heard defendant discussing his purchase of the reader/writer machine and his attempts to purchase blank plastic cards for use in creating fake credit cards. Investigators also conducted visual surveillance of defendant, but they found that to be difficult because of Manhattan’s traffic congestion. As a result, investigators, without first securing a warrant, placed a battery-operated GPS device on defendant’s vehicle. Between March 5 and March 16, 2007, defendant and his codefendants visited various stores and utilized forged credit cards to either purchase or attempt to purchase items with the illegally obtained credit card numbers belonging to individuals from out of state, that had been issued by, among other institutions, HSBC, MasterCard, and Chase Bank. Investigators interviewed store employees and recovered store receipts and surveillance video relative to the transactions.

In May 2007, a grand jury handed down a 61-count indictment against defendant and his codefendants charging them with grand larceny, criminal possession of a forged instrument, criminal possession of stolen property, criminal possession of forgery devices, identity theft and scheme to defraud. In February 2009, approximately one month before trial, the prosecutor provided the defense with copies of the surveillance reports, which disclosed, for the first time, that a GPS tracking device had been placed on defendant’s vehicle.

Prior to summations, the trial court, concerned that the jury would have difficulty distinguishing among the submitted counts, prepared a verdict sheet that listed the count number, the offense charged, the date of the alleged offense, and either the name of the store where the alleged offense occurred or the name of the bank that issued the credit card. Defense counsel objected to the annotations on the verdict sheet to the extent it mentioned locations, amounts and dates. The court explained that it prepared the verdict sheet in conformance with the Criminal Procedure Law, and stated that it would instruct the jury that the notations served the sole purpose of distinguishing one count from another.

In its charge to the jury, the court instructed that the sheet had been formulated for the jury’s “guidance” and that “there are some notations [on the sheet] whose only purpose is to remind you of the difference between each of the counts.” The jury found defendant guilty on 20 of the 26 counts, namely, two counts of grand larceny in the third degree, three counts of grand larceny in the fourth degree, eight counts of criminal possession of a forged instrument in the second degree, five counts of identity theft in the first degree, and one count each of scheme to defraud in the first degree and criminal possession of forgery devices.

Defendant made a posttrial CPL 330.30 motion asserting, among other things, that the trial court erred in permitting evidence concerning the GPS device placed on defendant’s car, relying on this Court’s decision in Weaver, which had been pending during his trial and was handed down after the jury’s verdict. The court summarily denied that motion at sentencing, and defendant was sentenced to 973 to 28 years’ imprisonment.

The Appellate Division unanimously affirmed, holding that the investigators’ “limited use” of the GPS device was permissible under our holding in People v Weaver and, to the extent it violated state or federal constitutional law, any error was harmless

I

n People v Miller ( 18 NY3d 704 [2012]), we held that a trial court commits reversible error by providing a jury in a criminal trial with a verdict sheet containing annotations that are not authorized by CPL 310.20 (2) (id. at 706). That section provides:

“Upon retiring to deliberate, the jurors may take with them: . . .

“2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts” (emphasis supplied).

Subdivision (2) had originally included only the first sentence, and was amended in 1996 to grant trial courts the authority to include annotations concerning “the dates, names of complainants or specific statutory language” to “facilitate an orderly and intelligent deliberative process and prevent needless reversals of convictions” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 630 at 9, 1996 NY Legis Ann at 453).

Defendant, relying on Miller, claims that the trial court committed reversible error by submitting the annotated verdict sheet to the jury, and challenges 15 out of the 20 counts of which defendant was convicted. According to defendant’s reading, because the verdict sheet contained references to the locations of the offenses and names of the issuing banks (as opposed to the names of the individuals whose card numbers had been stolen), he is entitled to a new trial because that information does not fall within the categories specified in section 310.20 (2). We disagree.

The annotations here could not have been interpreted by the jury as being intended for any purpose other than identifying the individual stores defendant and his codefendants were alleged to have frequented or the banks relative to certain identity theft counts. Given the number of counts, coupled with the fact that the offenses occurred at different locations at different times (and, in some instances, on different dates), the trial court appropriately included the annotations so that the jury could distinguish the submitted counts. Under the circumstances, the names of the stores clearly fall within the term “complainant” delineated in the statute. Affording section 310.20 (2) the narrow interpretation defendant advocates would unnecessarily restrict trial courts from providing clarification on a verdict sheet in cases like this one where there are multiple counts of identical offenses alleging similar conduct over a period of time. The danger against which the statute guards — that the jurors will "tak[e] on the role as Judges of the law” (People v Moore, 71 NY2d 684 , 688 [1988]) — is not presented here.

Contrary to the People’s contention, defendant’s objection to the warrantless installation of the GPS tracking device was

We conclude, however, that this violation of defendant’s constitutional right was harmless beyond a reasonable doubt because “there is no reasonable possibility that the error might have contributed to defendant’s conviction” (People v Crimmins, 36 NY2d 230 , 237 [1975], citing Chapman v California, 386 US 18 [1967], reh denied 386 US 987 [1967], and Fahy v Connecticut, 375 US 85 [1963]). There was one date on which the use of the GPS device allegedly led to evidence of defendant’s criminal activity. Although the GPS device was attached to the car on that date, investigators learned from another source — wiretapped phone calls obtained through an eavesdropping warrant — that defendants were heading toward a Best Buy store at 86th Street and Lexington Avenue in Manhattan. Once investigators located defendant and his cohorts at this store, they conducted visual surveillance as defendant and/or his codefendants made purchases at a jewelry store and another Best Buy at 44th Street and 5th Avenue, which was near the jewelry store. Given the information investigators obtained from the wiretap, the use of the GPS device, although amounting to a constitutional violation, was nonetheless harmless because it provided information redundant to that which investigators had already obtained legally. The People also presented overwhelming evidence of defendant’s guilt in the form of surveillance video, sales receipts, visual observations by investigators of codefendants making purchases at the named stores, interviews of store employees conducted by investigators, and recorded conversations obtained via the eavesdropping warrant.

Accordingly, the order of the Appellate Division should be affirmed.

(concurring). The majority believes that defendant adequately preserved a constitutional challenge to the evidence obtained from the global positioning system (GPS) tracking device. Not only do I disagree with that holding, but defendant does as well — he asserts that his trial attorney inexcusably failed to seek suppression. Consequently, I would analyze the GPS issue in the context of an ineffective assistance of counsel framework. Before trial, the People provided the defense with documents revealing that a GPS device had been attached to defendant’s automobile and was used to track his location at specified times and locations. Once alerted to these facts, defendant urged his attorney to inquire if the court would “entertain” a pretrial motion to suppress the GPS evidence. When defense counsel posed the issue, the court responded that it believed it had already ruled on the request, but that it would consider the application if “something specific” was raised and the issue would be reviewed “at that time.” Defense counsel, however, did not pursue or file a motion. At the subsequent trial, the People presented the GPS evidence.

Before summations, defendant asked the court if it was aware of a GPS case that was pending at our Court, entitled People v Weaver ( 52 AD3d 138 [3d Dept 2008], lv granted 10 NY3d 966 [2008]). The judge indicated that he knew of the case but did not engage in further discussion. Approximately two weeks after the verdict in defendant’s case, but prior to his sentencing, we issued the decision in People v Weaver ( 12 NY3d 433 [2009]). Defense counsel then moved to set aside defendant’s conviction under CPL 330.30, claiming that the People should not have been allowed to use evidence derived from the GPS unit because it had not been authorized by a search warrant. Supreme Court denied the motion.

On these facts, the GPS issue clearly was not adequately preserved (see CPL 470.05 [2]). Except under unusual circumstances not present in this case, a motion to suppress evidence must be made before trial (see CPL 710.40) and is to be submitted in writing (see CPL 710.60 [1]). Because the suppression motion was not timely or properly presented to the trial court, it cannot be faulted for refusing to consider the issue. Defendant’s counsel did not comply with the court’s request for a