People v. Roldan

¶1dissent in a memorandum by Sullivan, J., as follows: We do not believe that any useful purpose would be served by a remand. The trial took place over two years ago, and the likelihood of the Trial Judge remembering whether he used the word “conditions” instead of “consequences”, or erroneously inserted the word “no” or substituted “didn’t” for “did”, is minimal, if not nonexistent. More importantly, inasmuch as defense counsel did not object or request clarification of the charge, the probability is that the charge was not incorrectly given, but rather inaccurately recorded. The Judge was reading directly from GPL 300.10 (subd 3) so that the more likely explanation for the confusion is stenographic error in the transcription. *478Such an obvious misstatement of the consequences of a finding of not guilty by reason of mental disease or defect would undoubtedly have prompted an objection by defense counsel, and perhaps even the prosecutor, if, indeed, the Judge himself did not correct his mistake. In any event, one might argue that the literal implication of the full clause “there will be no hearings as to the defendant’s present mental condition and the appropriate involuntary commitment proceedings” is that defendant would have been committed without a hearing if found not guilty by reason of insanity. Thus, even if the error be the Judge’s and not the stenographer’s, rather than be prejudiced, defendant would have benefited from the entire charge, since it gave the jury the motivation to find him not guilty with the knowledge that he would still be incarcerated. However, we need not explore the nuances of the charge, and the meanings of each word. The clear import is that the stenographer erred, but even if the Judge misspoke, that the jury understood what the Judge meant. Nor do we believe that the court’s summary of the testimony of Dr. Herman indicates anything other than stenographic error. A reading of the entire portion makes clear that the offending word “didn’t” was transcribed erroneously, because in the full context the court correctly communicated to the jury the essence of Dr. Herman’s testimony: “The people called in rebuttal Dr. Herman who testified that in his opinion the defendant at the time of the incident did not lack substantial capacity to know or appreciate the nature and consequences of his conduct and that his conduct was wrong. Such testimony is submitted to you to assist you in your deliberations. No such testimony is binding upon you. You are not required to accept such testimony nor are you to disregard it promiscuously. If you accept the reasoning and opinion of Dr. Goldstein and you can conclude that due to the defendant’s condition he did not know the nature and consequences of his act or that his conduct was wrong then you must find the defendant not responsible by reason of such condition. If on the other hand you accept the opinion of Dr. Herman that the defendant didn’t know the nature and consequences of his act or that such acts were wrong beyond a reasonable doubt you would then move to consider the alleged crimes of kidnapping, possession of a weapon and unlawful imprisonment in the first degree” (emphasis supplied). Moreover, the jurors themselves heard Dr. Herman, and knew his opinion regarding defendant’s competency. Reason dictates that the appendage of a contraction to the word “did” would not erase the gist of Dr. Herman’s testimony. The conviction should be affirmed.