         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
949
KA 08-02474
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY JEAN-PHILIPPE, ALSO KNOWN AS JEFFERY
JEAN-PHILIPPE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered September 19, 2008. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
forged instrument in the second degree (three counts) and reckless
endangerment in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law, a new trial is granted on counts one through
three of the indictment, and count four of the indictment is dismissed
without prejudice to the People to file or re-present to another grand
jury any appropriate charge under that count.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of three counts of criminal possession of a
forged instrument in the second degree (Penal Law § 170.25) and one
count of reckless endangerment in the first degree (§ 120.25). We
agree with defendant that he was denied a fair trial by Supreme
Court’s refusal to dismiss a juror who was seen falling asleep, albeit
briefly, during trial. “A determination whether a juror is
unavailable or grossly unqualified, and subsequently to discharge such
a juror, is left to the broad discretion of the court” (People v
Punwa, 24 AD3d 471, 472, lv denied 6 NY3d 779). However, “[i]t is
well established that ‘[a] juror who has not heard all the evidence is
grossly unqualified to render a verdict’ ” (People v Hymes, 70 AD3d
1371, 1372, lv denied 15 NY3d 774; see People v Williams, 202 AD2d
1004, 1004). Here, because there were no alternate jurors at the
time, the dismissal of a juror would have required a mistrial. Thus,
it appears that the court attempted to rehabilitate the juror at issue
thereby avoiding a mistrial, by asking the juror if she “missed any
relevant or important . . . parts . . . of the testimony” and if she
“heard everything that [she] need[ed] to know thus far.” The court’s
                                 -2-                           949
                                                         KA 08-02474

efforts, however, were unavailing. Once it was determined that the
juror had fallen asleep and missed some portion of the trial
testimony, it was incumbent upon the court to dismiss that juror, even
though that dismissal would have necessitated a mistrial.

     We likewise agree with defendant that the evidence is legally
insufficient to support his conviction for reckless endangerment in
the first degree. Specifically, there is insufficient evidence that
defendant’s reckless conduct occurred “under circumstances evincing a
depraved indifference to human life” (Penal Law § 120.25). Although
the evidence at trial established that defendant acted recklessly when
he led law enforcement on a chase in heavy traffic conditions where
his speed frequently exceeded the posted speed limit, ran several red
lights, and collided with several vehicles before being apprehended,
that evidence is insufficient to establish that defendant acted with
the requisite depraved indifference to human life to support a
conviction of reckless endangerment in the first degree (see generally
People v Prindle, 16 NY3d 768, 769-771). “[T]he statutory provision
that a defendant act ‘[u]nder circumstances evincing a depraved
indifference to human life’ constitutes an additional requirement of
the crime--beyond mere recklessness and risk--which in turn comprises
both depravity and indifference” (People v Suarez, 6 NY3d 202, 214).
Here, at most, the evidence adduced at trial was legally sufficient to
support a finding of reckless endangerment in the second degree (§
120.20). Because there must be a new trial based on the court’s
failure to dismiss the grossly unqualified juror (cf. People v
Cargill, 70 NY2d 687, 689), we dismiss count four of the indictment
without prejudice to the People to file or re-present to another grand
jury any appropriate charge under that count (see generally People v
Pallagi, 91 AD3d 1266, 1270).

     Finally, we reject defendant’s contention that counts one through
three of the indictment, i.e., the three counts of criminal possession
of a forged instrument in the second degree, are multiplicitous (see
generally People v Okafore, 72 NY2d 81, 85-88). In light of our
determination, we do not address defendant’s remaining contentions.

     All concur except SCUDDER, P.J., who dissents in part and votes to
modify in accordance with the following Memorandum: I agree with the
majority’s conclusion that the evidence is legally insufficient to
support the conviction of reckless endangerment in the first degree
(Penal Law § 120.25; see generally People v Prindle, 16 NY3d 768, 769-
771). I also agree with the majority that the judgment with respect
to the remaining counts charging defendant with three counts of
criminal possession of a forged instrument in the second degree (§
170.25) should be reversed and a new trial granted on those counts
because a juror who was seen sleeping was thereby grossly unqualified
to render a verdict (see People v Hymes, 70 AD3d 1371, 1372, lv denied
15 NY3d 774). I nevertheless respectfully disagree with the
majority’s conclusion that we should dismiss count four, i.e.,
reckless endangerment in the first degree, with leave to file, or re-
present to another grand jury, any appropriate charge. In my view, we
should modify the judgment with respect to count four by reducing the
conviction to the lesser included offense of reckless endangerment in
                                 -3-                           949
                                                         KA 08-02474

the second degree (Penal Law § 120.20), inasmuch as the evidence is
legally sufficient to support the lesser but not the greater offense
(see CPL 470.15 [2] [a]). The evidence established that defendant led
law enforcement personnel on a high-speed chase during which he
disobeyed several traffic control devices, drove in the wrong
direction on the roadway and was involved in multiple collisions.

     We are required, upon reversing or modifying a judgment, to “take
or direct such corrective action as is necessary and appropriate both
to rectify any injustice to the appellant resulting from the error or
defect which is the subject of the reversal or modification and to
protect the rights of the respondent” (CPL 470.20; see People v
Rodriguez, 18 NY3d 667, 670-671). As noted, the majority dismisses
count four of the indictment and grants leave to the People to, inter
alia, file any appropriate charge. However, it is clear that the
lesser included offense of reckless endangerment in the second degree
is not an appropriate charge because defendant’s double jeopardy
rights would be violated if he were charged with that offense inasmuch
as “the lesser offense . . . requires no proof beyond that which is
required for conviction of the greater” (People v Biggs, 1 NY3d 225,
230 [internal quotation marks omitted]; see US Const 5th Amend; NY
Const, art I, § 6; CPL 40.20). “At its core, double jeopardy
precludes ‘the government from prosecuting a [defendant] for the same
offense after an acquittal or a conviction’ ” (People v Gause, 19 NY3d
390, 394, quoting Matter of Suarez v Byrne, 10 NY3d 523, 532, rearg
denied 11 NY3d 753).

     I submit that, because CPL 470.20 provides that the “particular
corrective action to be taken or directed is governed in part by the
following rules,” we may fashion corrective action that is not
specified in CPL 470.20 that both rectifies the injustice to defendant
and protects the rights of the People (see Rodriguez, 18 NY3d at 671).
I note that in People v Pallagi ([appeal No. 1] 91 AD3d 1266, 1267-
1268), defendant contended both that there was a trial error that
deprived her of a fair trial and legally insufficient evidence to
support the conviction, and we therefore dismissed the sole count of
the indictment, charging defendant with grand larceny in the fourth
degree (Penal Law § 155.30 [1]), with leave to file any appropriate
charge. As I noted in my dissent (Pallagi, 91 AD3d at 1271-1272), the
corrective actions with respect to that count were in conflict, i.e.,
the trial error required that a new trial be granted (see CPL 470.20
[1]), and the insufficient evidence permitted reduction of the count
to a lesser included offense (see CPL 470.15 [2] [a]) or required
dismissal of the count (see CPL 470.20 [2]). Here, however, defendant
is convicted of not one count, but of four counts. Notably, defendant
recognizes that the permissible corrective actions are in conflict and
thus contends that he should be granted a new trial on counts one, two
and three, and that count four should be dismissed or reduced to the
lesser included offense (see CPL 470.20).

     I would therefore modify the judgment by reducing the conviction
under count four to the lesser included offense of reckless
endangerment in the second degree (see CPL 470.15 [2] [a]; see e.g.
People v Brink, 78 AD3d 1483, 1483, lv denied 16 NY3d 742,
                                 -4-                          949
                                                        KA 08-02474

reconsideration denied 16 NY3d 828), and I would remit the matter to
Supreme Court for resentencing on that count (see CPL 470.20 [4]). I
otherwise agree with the majority that the judgment insofar as it
convicted defendant of counts one, two and three should be reversed
and that a new trial should be granted on those counts. In my view,
that corrective action serves both statutory mandates, i.e., to
rectify the respective injustices to defendant and to protect the
rights of the People.




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
