Chief Judge DiFiore and Judges Garcia and Feinman concur. Judge Fahey concurs in result in an opinion. Judge Rivera dissents in an opinion in which Judge Wilson concurs.
OPINION BY JUDGE STEIN It is not disputed that the trial courts in both of these cases erred by reversing — after summations — their prior rulings on defendants’ requests to charge the jury. Both courts erred by failing to charge the jury in accordance with their pre-summation rulings on defendants’ charging requests. The question before us on these appeals is whether these errors mandate reversal. We hold that the error was harmless in both cases and, therefore, affirm. I. After defendant David Mairena and the victim were asked to leave a restaurant where they had engaged in a late-night fight (referred to by defendant as the “first attack”), the victim returned with a machete, hit defendant with it and then chased him across the street (referred to by defendant as the “second attack”). The manager of the restaurant, armed with a baton, ran across the street, grabbed the victim and dragged him back to the front of the restaurant. As the victim was pulled away from defendant, he pointed the machete at defendant. The manager told defendant — who followed the victim back across the street — to go home. The manager then flagged down a passing police car, told the victim to drop the machete and, once he saw police coming, returned to his work. Another witness, a disc jockey, did not see the victim drop the machete, but he heard “a sound like when metal hits the floor” and did not see the victim holding the machete any longer as the victim walked away. In what defendant refers to as the “third attack,” he stepped onto the sidewalk and loudly stated something to the victim, who turned around and took off his jacket; defendant and the victim then began punching each other. The disc jockey saw the victim start to bleed from part of his right arm and fall to the sidewalk, while there was a “noise, like a bottle breaking.” Defendant fled, and the police approached, observing the victim with blood “spraying” from his arm. An officer called an ambulance and attempted to stop the bleeding, but the victim lost consciousness shortly thereafter and was pronounced dead approximately 30 minutes after the officers arrived. All three interactions were captured on surveillance video, which was introduced into evidence at trial. Officers returning to the scene the next morning found the machete on the street near “tiny bits and pieces of broken glass” that had no blood on them. When police spoke to defendant, he admitted that, before fleeing, he took a knife out of his pocket and swung it at the victim. Defendant was thereafter charged with manslaughter in the first degree, assault in the first degree and criminal possession of a weapon in the fourth degree. At trial, the medical examiner testified that the cause of the victim’s death was blood loss from a severed brachial artery in the right arm. Although the medical examiner indicated that the four-inch long incised wound was “not inconsistent” with having been caused by a broken bottle, she testified that the wound was “certainly more consistent [with] having been sustained by [a] sharp instrument such as a knife.” Defendant testified that, during the third attack, he feared for his life when the victim shed his jacket and approached. Therefore, although defendant did not see whether the victim had a weapon at that point, he pulled out the knife and swung it at the victim. Once home, defendant saw blood on the knife and washed it off. At trial, defendant’s theory was that the victim’s fatal wound was the result either of falling on a glass bottle or, if caused by a stabbing, that defendant’s use of deadly physical force was justified. At the charge conference, the People sought an expanded charge on intent — that the jury should consider whether the result of defendant’s conduct was “the natural, necessary and probable consequence of that conduct” — and defendant requested that the People be precluded from arguing that, if the victim’s injury was caused by falling on a glass bottle on the ground, his resulting death was a natural consequence of defendant’s actions. As defendant noted, that theory of prosecution was not presented to the grand jury. Defendant also requested a specific instruction that, to convict him of first-degree manslaughter, the jury had to find that the victim’s death was caused by a knife, specifically a box cutter. The court responded that it would charge that the jury had to find that defendant “[c]aused [the victim's] death with a dangerous instrument, to wit, a knife or a…box cutter.” On summation, defendant argued that the jury had to acquit him of the manslaughter charge if the People failed to prove beyond a reasonable doubt that the instrumentality of death was the box cutter, as opposed to a bottle on the ground, and devoted a substantial portion of his summation to attempting to demonstrate that the victim died from falling on a broken bottle. The People argued in summation that defendant intended to cause the victim serious physical injury and that the victim’s “death was actually caused by the defendant slashing [the victim] with that blade and not by anything else.” When charging the jury, the court failed to include the agreed-upon language that the jury could convict defendant of manslaughter only if it found that the victim’s death was caused by a box cutter. Defense counsel objected on the ground that he had structured his summation in a particular way in anticipation of the promised charge. The court responded “[t]hat’s what was argued” — that if the jurors found “it wasn’t the box cutter, they have to find him not guilty.” Defense counsel made no further objections or requests. The jury convicted defendant of first-degree manslaughter and fourth-degree criminal possession of a weapon. The Appellate Division affirmed, holding as relevant here that, “although it was error for the court to inform the parties, prior to summations, that it would instruct the jury on a specific instrumentality of death in its charge of manslaughter in the first degree, and then to subsequently remove that language from its charge following summations,…the error was harmless” (160 AD3d 986, 988 [2d Dept 2018]). A Judge of this Court granted defendant leave to appeal. II. Defendant Mauricio Altamirano was convicted of criminal possession of a weapon in the fourth degree for storing another person’s operable, but unloaded, .22 caliber revolver in his apartment. At trial, beginning with opening statements, counsel presented a temporary and lawful possession defense. Counsel argued that defendant was guilty only of “trying to do a favor for a friend,” and that he did not know that his friend — who he knew only as “Columbia” — had a gun in a bag that he asked defendant to store in his home. Counsel asserted that, when defendant realized there was a gun in the bag, he twice asked Columbia to remove the gun from his home, to no avail, and later cooperated fully with police after they approached him to inquire about the gun. The evidence at trial demonstrated that, after Columbia was arrested in connection with an unrelated assault, officers learned that he owned a gun and that defendant had a “connection to that” gun. Officers in plain clothes approached defendant at his place of business and asked if he was aware of or possessed a gun. Defendant, who was “extremely cooperative,” offered to accompany police to his apartment to surrender the gun, and signed a consent to search form. He directed them to the weapon, which was wrapped in a blanket inside a garbage can in the single-room apartment. Officers took the gun and placed defendant under arrest. The People proffered defendant’s statement to police, in which he explained that he was holding a bag for his acquaintance Columbia for at least three weeks. Defendant informed police that, after discovering that the package Columbia gave him contained the gun, he had told Columbia to remove it multiple times, but Columbia failed to do so. Defendant requested that the court charge the jury on temporary and lawful possession of a weapon.1 Defendant argued that his statement, along with the evidence that he turned the weapon over to police at the first opportunity presented to him, provided a basis for the charge. The court denied the request on the ground that the evidence did not support lawful possession, but also refused the People’s request to prohibit defendant from referring to temporary possession in summation. Counsel, relying on defendant’s statements to police, then argued in summation that defendant innocently permitted Columbia to place a bag in his home without being aware that a gun was concealed inside, demanded that the gun be removed when he learned that the weapon was in the bag, and later fully cooperated with the police when they confronted him about the weapon, conduct which was consistent with that of someone who was innocent. Counsel also argued that there was insufficient evidence regarding the time period between defendant’s discovery that the bag in his home contained a gun and when he turned the weapon over to police. After summations, without first informing the parties, the court gave the temporary and lawful possession charge to the jury. Thereafter, outside the presence of the jury, the court explained that it decided to give the charge out of an abundance of caution, but it denied defendant’s request to reopen his summation so that he could “reargue to the jury the charge.” Defendant was convicted as noted above. Upon defendant’s appeal, the Appellate Term affirmed, concluding that Criminal Court “deprived defendant of the right to an effective summation,” but that “reversal of the judgment of conviction [was] not required” because “defendant was not entitled to a charge on the defense of temporary and innocent possession of a weapon based on the facts of the case” (61 Misc 3d 1, 5 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). A Judge of this Court granted defendant leave to appeal. III. In Herring v. New York, the Supreme Court of the United States explained that “[t]he Constitutional right of a defendant to be heard through counsel necessarily includes [the] right to have [defense] counsel make a proper argument on the evidence and the applicable law in [defendant's] favor” (422 US 853, 860 [1975] [internal quotation marks and citation omitted]). The Herring Court ruled invalid a New York “statute that empower[ed] a trial judge to deny absolutely the opportunity for any closing summation at all” (id. at 863). The Court held that the complete denial of an opportunity to make a summation of the evidence is a violation of the Sixth Amendment because “closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial” (id. at 858). That is, the “right to be heard in summation of the evidence from the point of view most favorable to” a defendant is implicit in the right to “the assistance of counsel that the [federal] Constitution guarantees” (id. at 864-865). Indeed, “no aspect of…advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment” (id. at 862). However, the rule “is not…that closing arguments in a trial must be uncontrolled or even unrestrained” (Herring, 422 US at 862). Rather, the Supreme Court explained in Herring that the trial “judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations” (id.; see People v. Ashwal, 39 NY2d 105, 109 [1976] ["It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within the four corners of the evidence and avoid irrelevant comments which have no bearing on any legitimate issue in the case" (internal quotation marks and citation omitted).]). Moreover, although “[t]here is no way to know whether…appropriate arguments in summation might have affected the ultimate judgment in [a] case” (id. at 864), the Supreme Court has since emphasized in Glebe v. Frost that “[n]one of [its] cases clearly requires placing improper restriction of closing argument in [the] narrow category” of structural errors (574 US 21, 23 [2014]), as opposed to a “trial error…reviewable for harmlessness” (id. at 22). Of course, even “[m]ost constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness” (id. at 23). It is “[o]nly the rare type of error — in general, one that infect[s] the entire trial process and necessarily render[s] [it] fundamentally unfair — [that] requires automatic reversal” (id. [internal quotation marks and citation omitted]). Although Glebe was decided pursuant to the deferential standard applied under the Antiterrorism and Effective Death Penalty Act of 1996 and, thus, leaves open the question of whether harmless error analysis applies to trial court rulings that operate to restrict counsel’s strategic choices regarding summation, it nevertheless makes clear that Herring does not compel a conclusion that “the restriction of summation…amounts to structural error” (574 US at 24). Of course, regardless of whether the error is structural, “summation matters” as the dissent puts it (dissenting op. at 13), and “the right of the defense to make a closing summary of the evidence to the trier of the facts” implicates the Sixth Amendment (Herring, 422 US at 860). Nevertheless, short of a complete deprivation of the right to present a summation (see id.; People v. Harris, 31 NY3d 1183, 1185 [2018]), it cannot be said that Supreme Court precedent requires us to reconsider our well-established case law holding that the improper reversal of a prior charging ruling that impacts summation is subject to harmless error analysis. In that regard, this Court’s decisions in People v. Miller (70 NY2d 903 [1987]), People v. Greene (75 NY2d 875 [1990]), and People v. Smalling (29 NY3d 981 [2017]) establish that, under New York law, harmless error analysis applies when the trial court fails to inform the parties, prior to summations, of the charge that will be given to the jury. In Miller, we expressly applied harmless error analysis to such an error. We explained that, where it could “[]not be said that defense counsel’s summation would have been affected by knowledge that the petit larceny charge would be submitted to the jury,” the error “was, in the circumstances of th[e] case, harmless” (70 NY2d at 907). While we did not use the specific phrase “harmless error” in Greene, we held that it was “error, prejudicial to defendant” when the trial court “reverse[d] its stance after assuring defendant that it would charge as he requested and after defendant had premised his summation on that theory” (75 NY2d at 877). Most recently, in Smalling, the Court relied on Greene in holding that, when the trial court “agreed to the People’s request at the charge conference not to charge the jury on constructive possession, but then ultimately provided a constructive possession charge to the jury, resulting in prejudice to defendant,” the “defendant [was] entitled to a new trial” (29 NY3d at 982). Smalling expressly applied harmless error analysis, stating that “[u]nder the unique circumstances of this case, the error is not harmless” (id.). Our reliance on Greene in continuing to apply harmless error analysis in Smalling — decided just two years ago — completely refutes defendants’ arguments that our precedent distinguishes between a determination of prejudice and a harmless error analysis in this context. Contrary to defendants’ arguments, Miller, Greene and Smalling clearly establish that harmless error analysis applies and that the test for the prejudice component of harmless error analysis under these circumstances is whether it can be said that defense counsel’s summation would have been materially affected by knowledge of the charge ultimately submitted to the jury (cf. Harris, 31 NY3d at 1185 [2018] [declining to apply harmless error analysis when the defendant was completely denied the opportunity to give a closing argument]).2 A showing of prejudice is necessary because it is not every post-summation change in instruction that amounts to a material misdirection about the legal framework of a case or that will have any sort of meaningful effect on defense counsel’s summation (see Miller, 70 NY2d at 907). The fact that our prior cases did not expressly consider whether the evidence of guilt was overwhelming does not suggest that those cases were not, in fact, applying harmless error analysis, as the Court expressly stated that it was doing in both Miller and Smalling. That is because a determination that the evidence was overwhelming does not, in itself, answer the question of whether an error is harmless under People v. Crimmins (36 NY2d 230 [1975]). Under our traditional harmless error analysis, an appellate court does not reach the question of prejudice unless the evidence is overwhelming in the first instance. As we explained in Crimmins, “unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” (36 NY2d at 241). “That is, every error of law (save, perhaps, one of sheerest technicality) is, ipso facto, deemed to be prejudicial and to require a reversal, unless that error can be found to have been rendered harmless by the weight and the nature of the other proof” (id.). Under Crimmins, when “an appellate court has satisfied itself that there was overwhelming proof of the defendant’s guilt, its inquiry does not end there….Further inquiry must…be made by the appellate court as to whether, notwithstanding the overwhelming proof of the defendant’s guilt, the error infected or tainted the verdict,” and “[a]n evaluation must therefore be made as to the potential of the particular error for prejudice to the defendant” (id. at 242 [emphasis added]). When an error is not constitutional in nature, the “error is prejudicial…if the appellate court concludes that there is a significant probability…in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred” (id.). If the error at issue is of a constitutional dimension, it is harmless when “there is no reasonable possibility that the error might have contributed to defendant’s conviction” (id. at 237). In Miller, Greene and Smalling, we expressly addressed only the second step of the Crimmins analysis, determining whether the error was prejudicial or harmless to defendant, having necessarily concluded, sub silentio, that the evidence was overwhelming. Our cases establish that prejudice in this context, for purpose of harmless error analysis, turns on whether defense counsel structured summation based on an anticipated charge that was not conveyed to the jury as promised, such that summation was materially affected by an alteration in that anticipated charge. Our prior decisions do not clarify whether the constitutional or nonconstitutional harmless error standard applies in determining whether the defendant was prejudiced by a trial court’s reversal, after summations, of a prior ruling on a charging request. However, Miller, Greene and Smalling represent this Court’s consistent application of harmless error analysis in this context over the course of 30 years and, as explained above, these decisions are not contrary to the decisions of the Supreme Court in Glebe and Herring. In addition, defendants’ assertion that the rule in all four Appellate Division Departments is that harmless error analysis does not apply to a broken charging promise is patently meritless. The First, Second and Fourth Departments of the Appellate Division all have expressly held that these types of errors may be “harmless” (see People v. Gonzalez-Alvarez, 129 AD3d 647, 648 [1st Dept 2015], lv denied 27 NY3d 997 [2016]; People v. Lugo, 87 AD3d 1403, 1404 [4th Dept 2011], lv denied 18 NY3d 860 [2011]; Matter of Jose R., 185 AD2d 819, 820 [2d Dept 1992]). The single case cited by defendants that supports their argument — People v. Bacalocostantis (111 AD2d 991, 992 [3d Dept 1985] [holding that harmless error analysis as set forth in Crimmins cannot apply to the failure to inform counsel, prior to summations, that lesser included charge would be given]) — is no longer good law inasmuch as it was decided before this Court expressly applied harmless error analysis in Miller to the same error that was present in Bacalocostantis. In addition, the Court that decided Bacalocostantis — the Appellate Division, Third Department — has held subsequent to Bacalocostantis that reversal is not required where there is no prejudice (see People v. Carkner, 213 AD2d 735, 739 [1995], lv denied 85 NY2d 970 [1995]; People v. Seiler, 139 AD2d 832, 834 [1988], lv denied 72 NY2d 924 [1988]). In short, Miller, Greene and Smalling have consistently been applied by the appellate courts of this state and continue to be entitled to full precedential force. In those decisions, this Court meant what it expressly stated: a trial court’s error in reversing a prior charging decision after summations have been completed is subject to harmless error analysis. IV. We conclude that the evidence of guilt in both of the instant cases was overwhelming. Thus, as in Miller, Greene and Smalling, whether the error was harmless turns on the question of whether defendants were prejudiced. Although those cases do not clarify whether the constitutional or nonconstitutional standard applies in evaluating prejudice, we need not resolve that question today because, under either standard, the error in each case was harmless. A. In People v. Mairena, defendant argues that, by revoking its promise to specifically instruct the jury as to the nature of the sharp instrument that caused the victim’s injuries, the court undermined the strategic decisions counsel made when preparing his summation based on that promise. Defendant asserts that counsel argued that the People failed to prove that the victim died from a knife wound, rather than from falling to the ground on top of a glass bottle, and that, without the instruction, the jury could not have understood that his argument mandated acquittal. Defendant claims that, if he had known the court would not give the requested instruction, he may have avoided addressing the “bottle theory” altogether and focused solely on his justification defense. To be sure, the facts of this case are superficially similar to those in Greene. The trial court in Greene agreed to charge the jury, with respect to manslaughter in the first degree, that it must acquit if it found that victim’s injury was not caused by a shooting. In summation, counsel “emphasized the equivocal nature of the proof that a shooting occurred and told the jury that they should acquit defendant if there was a reasonable doubt that the victim’s wound was caused by a gunshot” (75 NY2d at 877). We reversed because the trial court’s ultimate instruction to the jury contravened its promised charge, and the defendant had premised his summation on the theory underlying the charge. Similarly here, the trial court promised a charge on the instrumentality of death with respect to manslaughter in the first degree, and then failed to deliver the specific language to which it had agreed. Nevertheless, an affirmance is warranted. As the People note, defendant’s primary motivation in seeking the charge was to prevent the People from arguing that he was guilty even if a fall onto glass bottles during the fight was the cause of death — a theory of prosecution that was not presented to the grand jury. The People not only refrained from arguing that theory, but they expressly argued to the jury that the victim’s “death was actually caused by the defendant slashing [the victim] with that blade and not by anything else.” Moreover, the jury charge on manslaughter, read as a whole, conveyed that the jury had to find the victim’s death was caused by defendant’s intentional actions in using the box cutter in order to convict; it did not permit the jury to convict defendant of manslaughter based on the bottle theory. With respect to manslaughter, the jury was instructed that it had to find that defendant caused the victim’s death while specifically intending to cause serious physical injury to the victim. Serious physical injury was defined as “impairment of a person’s physical condition which creates a substantial risk of death or which causes death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Had the victim’s death been caused by an accidental fall on glass bottles during a fist fight that lasted only several seconds, the jury could not have found that defendant intended to cause serious physical injury. Thus, although the specific language requested by defendant was not included in the jury charge, given the arguments actually made in summation by both parties that the jury had to find that the instrumentality of death was the box cutter in order to convict, and the conveyance of that instruction to the jury in the charge as a whole, any error in Mairena was harmless. Counsel essentially received the charge that he sought and both parties’ closing arguments were entirely consistent with that charge. Under these circumstances, “it cannot be said that defense counsel’s summation would have been affected by knowledge [of the] charge [that] would be submitted to the jury” (Miller, 70 NY2d at 907). B. In People v. Altamirano, defendant maintains that the court’s denial of his request for a jury instruction on temporary and lawful possession deprived him of the opportunity to argue that his possession of the weapon was not unlawful. He argues that, had counsel known the temporary and lawful possession charge would be given, he would have drawn the jury’s attention to the factors set forth in the charge contained in the pattern criminal jury instructions for determining whether his possession of a weapon in his home was innocent. Specifically, counsel would have pointed to a lack of evidence of knowing possession, the manner in which the gun came into defendant’s possession, the length of time it was in defendant’s possession, whether defendant had the intent to use it or dispose of it, and whether defendant took advantage of any opportunity to turn it over to police. Instead, defendant contends, counsel was forced to make a nonsensical argument that he never had constructive possession of the gun. Under Miller, Greene and Smalling, the relevant question is whether counsel’s summation was materially affected in a manner that prejudiced defendant in light of the charge actually given. As the People correctly note, defense counsel did, in summation, highlight the same evidence that defendant now argues would have supported the temporary and lawful possession charge. Counsel argued innocent possession throughout the trial. During summation, he asserted that defendant did not know that a gun was concealed inside Columbia’s bag, defendant had unsuccessfully demanded that the gun be removed once he found out that it was in the bag, and defendant’s conduct was that of someone who was innocent — i.e., he was fully cooperative with police and turned the gun over to them at his first opportunity. Counsel also pointed out that there was insufficient evidence regarding the time period between defendant’s discovery of the gun stored in his home and his turning it over to police. In other words, defendant made the argument in substance that he now claims he was forced to forgo due to the trial court’s initial refusal to give the temporary and lawful possession charge; he connected the evidence at trial to the factors relevant to the defense of temporary and lawful possession as it was ultimately charged to the jury. Thus, under these circumstances, “defense counsel’s summation would [not] have been [materially] affected by knowledge [of the] charge [that] would be submitted to the jury” (Miller, 70 NY2d at 907) and, thus, the error was harmless. V. We have considered defendant’s remaining argument in Mairena and conclude that it is lacking in merit. Accordingly, the orders in both Mairena and Altamirano should be affirmed.
