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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 189
The People &c.,
            Appellant,
        v.
Dwight R. DeLee,
            Respondent.




          James P. Maxwell, for appellant.
          Philip Rothschild, for respondent.
          Lambda Legal Defense and Education Fund, Inc. et al.;
District Attorneys Association of the State of New York; New York
State Association of Criminal Defense Lawyers et al., amici
curiae.




READ, J.:
            A Syracuse grand jury indicted defendant Dwight R.
DeLee for second-degree murder as a hate crime (Penal Law §§
125.25 [1], 485.05 [1] [a]), second-degree murder (Penal Law
§ 125.25 [1]) and third-degree criminal weapon possession (Penal
Law § 265.02 [1]).   Defendant was tried in County Court before a
jury, which rendered a verdict convicting him of the lesser

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included offense of first-degree manslaughter as a hate crime
(Penal Law §§ 125.20; 485.05 [1] [a]), acquitting him of the
lesser included offense of first-degree manslaughter (Penal Law §
125.20) and convicting him of the charged weapon possession
offense.   Upon hearing the jury's verdict, defense counsel
requested that the judge poll the jury and allow him to make "a
motion before the jury is dismissed, at the Bench."   After
polling the jury, the judge held a sidebar, and counsel argued
that the jury's verdict was inconsistent.   After stating that he
understood counsel's argument, the judge announced that he would
call the jurors back to the courtroom and dismiss them, adding,
"Is that acceptable?"   Counsel replied, "Yes, Judge."   When the
jurors returned to the courtroom, the judge noted that he had
"not excuse[d] them until [he] discussed the issue brought up by
[defense counsel] with the lawyers."   Recognizing that he had not
previously taken the jury's verdict on ordinary second-degree
manslaughter, the judge elicited from the jurors that they had
acquitted defendant of that offense.   He then dismissed the jury.
           Prior to sentencing, defendant moved pursuant to CPL
330.30 (1) to set aside the verdict as repugnant.   Defendant
contended that, in light of the elements of first-degree
manslaughter as a hate crime and ordinary first-degree
manslaughter as charged to the jury, the verdict was repugnant
because the two crimes shared the same basic elements, and
therefore, as a matter of law, he could not be guilty of first-


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degree manslaughter as a hate crime and yet not guilty of
ordinary first-degree manslaughter.     The People countered that,
because the judge instructed the jurors that a person commits
first-degree manslaughter as a hate crime by committing first-
degree manslaughter and additionally selecting the victim based
on perceived sexual orientation, the jury must have concluded
that ordinary first-degree manslaughter was akin to a lesser
included offense of the hate crime, such that a conviction of the
hate crime rendered a conviction of ordinary first-degree
manslaughter superfluous.   In support of this theory, the People
presented an affidavit of the jury's foreperson.
            At sentencing, the judge denied defendant's motion to
set aside the verdict on repugnancy grounds without elaborating
on his reasoning.   Defendant appealed, and on July 19, 2013, the
Appellate Division, with one Justice dissenting, modified the
judgment on the law by reversing defendant's conviction for
first-degree manslaughter as a hate crime and dismissing the
first count of the indictment, and otherwise affirmed (108 AD3d
1145 [4th Dept 2013]).   The Appellate Division concluded that
defendant had preserved his repugnancy claim by arguing that the
verdict was repugnant prior to the jury's discharge (id. at
1146).    The court then explained that the verdict was repugnant
because
            "[b]y acquitting defendant of manslaughter in the first
            degree, the jury necessarily found that the People
            failed to prove beyond a reasonable doubt at least one
            element of manslaughter in the first degree. To find

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          defendant guilty of manslaughter in the first degree as
          a hate crime, however, the jury must have found that
          the People proved beyond a reasonable doubt all of the
          elements of manslaughter in the first degree, plus the
          added element that defendant selected the victim due to
          his sexual orientation. It therefore follows that the
          verdict is inconsistent" (id. at 1146-1147).
          The Appellate Division continued that, "even assuming,
arguendo, that the [trial judge] suggested to the jurors in its
instructions that they could convict defendant of only one of the
manslaughter in the first degree charges, . . . such a
'suggestion' would be immaterial inasmuch as the Court of Appeals
has made clear that we may 'look[] to the record only to review
the jury charge so as to ascertain what essential elements were
described by the trial court'" (id. at 1147, quoting People v
Tucker, 55 NY2d 1, 7 [1981]).   The court pointed out that "even
crediting the theory of the dissent that ordinary or plain
manslaughter in the first degree is a lesser included offense of
manslaughter in the first degree as a hate crime, the verdict is
nevertheless inconsistent" because the jury "'necessarily decided
that one of the essential elements [of ordinary or plain
manslaughter in the first degree] was not proven beyond a
reasonable doubt'" (id., quoting People v Muhammad, 17 NY3d 532,
539 [2011]).
          The dissenting Justice rejected defendant's claim on
the merits (id. at 1151 [Peradotto, J., dissenting]).    Stating
that the critical inquiry was whether the jury, "as instructed,"
reached an inherently self-contradictory verdict, she concluded


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that the jury's verdict here was not repugnant (id. [internal
quotation marks and citation omitted]).   The People appealed to
us by permission of the dissenting Justice (21 NY3d 1047 [2013]),
and we now modify.
            This case presents a straightforward application of
Tucker and Muhammad, which clearly contemplate that when jury
verdicts are absolutely inconsistent, the verdict is repugnant.
The rationale for the repugnancy doctrine is that the defendant
cannot be convicted when the jury actually finds, via a legally
inconsistent split verdict, that the defendant did not commit an
essential element of the crime (Muhammad, 17 NY3d at 539; Tucker,
55 NY2d at 6).   Given that premise, "a verdict is repugnant only
if it is legally impossible -- under all conceivable
circumstances -- for the jury to have convicted the defendant on
one count but not the other," and, "[i]f there is a possible
theory under which a split verdict could be legally permissible,
it cannot be repugnant, regardless of whether that theory has
evidentiary support in a particular case" (Muhammad, 17 NY3d at
539-540).
            Accordingly, repugnancy does not depend on the evidence
presented at trial or the record of the jury's deliberative
process, and "[t]he instructions to the jury will be examined
only to determine whether the jury, as instructed, must have
reached an inherently self-contradictory verdict" (Tucker, 55
NY2d at 8).   In making these determinations, it is inappropriate


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for the reviewing court to "attempt to divine the jury's
collective mental process" (id. at 4).     "Jurors are allowed to
compromise, make mistakes, be confused or even extend mercy when
rendering their verdicts" (Muhammad, 17 NY3d at 544).
             Here, the jury's verdict was inconsistent, and thus
repugnant.    The jury convicted defendant of first-degree
manslaughter as a hate crime, but acquitted him of first-degree
manslaughter.    In Muhammad, a very recent decision, we used the
following hypothetical case to demonstrate how repugnancy
analysis works:
             "[Consider] a case where charge 1 requires proof of
             elements A, B and C; [and] charge 2 requires proof of
             elements A, B, C and D. If the jury convicts a
             defendant on the second charge, thereby finding that
             all four elements have been proven beyond a reasonable
             doubt, but acquits on the first charge, the verdict is
             repugnant since the acquittal would necessarily involve
             a finding that at least one of the essential elements
             of charge 2 - either A, B or C - was not proven beyond
             a reasonable doubt" (Muhammad, 17 NY3d at 540 [internal
             quotation marks omitted]).
             This is exactly what, in fact, happened in this case.
All of the elements of first-degree manslaughter are included in
the elements of first-degree manslaughter as a hate crime.    Thus,
to find the defendant not guilty of first-degree manslaughter
necessarily means that at least one of the elements of first-
degree manslaughter as a hate crime was not proven beyond a
reasonable doubt.
             The People's reasoning to the contrary is not
persuasive.    The foreperson's affidavit is the opinion of just


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one juror, and, in any event, cannot be considered under our
longstanding precedent.    Further, while the People argue that
County Court's charge allowed the jury to consider the hate crime
as a separate track or inquiry from the non-hate crime, the judge
specifically instructed the jurors to consider the non-hate crime
charges separately and independently from their hate crime
counterparts.
             Next, we reach the question of the remedy.   In
Muhammad, we stated in a footnote that the remedy for a repugnant
verdict was "dismissal of the repugnant conviction" (17 NY3d at
539 n 1).    In other words, where the jury's verdict proves to be
repugnant, the appellate court must reverse the defendant's
conviction and dismiss the count of the indictment underlying
that conviction.    This was dictum since we held in Muhammad (and
its companion case) that the verdicts were not, in fact, legally
repugnant.    Moreover, we cited as authority People v Hampton (61
NY2d 963, 964 [1984]) and People v Carbonell (40 NY2d 948, 948-
949 [1976]), which do not discuss the proper remedy for repugnant
verdicts.    Essentially, these brief, memorandum decisions merely
state that the repugnant charges should be dismissed.     Carbonell,
moreover, pre-dates Tucker, the case in which we first
articulated our approach to repugnancy claims.
             In Muhammad, we noted that the purpose of New York's
repugnancy doctrine was, in part, to "ensure that an individual
is not convicted of 'a crime on which the jury has actually found


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that the defendant did not commit an essential element, whether
it be one element or all'" (Muhammad, 17 NY3d at 539, quoting
Tucker, 55 NY2d at 6).     While such a rationale is consistent with
the remedy of dismissal of the repugnant charge, we have further
recognized that a repugnant verdict does not always signify that
a defendant has been convicted of a crime on which the jury
actually found that he did not commit an essential element.
Indeed, as we pointed out in Tucker, a jury "may freely reject
evidence and exercise its mercy function" (55 NY2d at 8).        In
other words, regardless of the court's instructions, a jury is
"free to extend leniency and may decide not to convict a
defendant of one or more charges" (Muhammad, 17 NY3d at 539).         In
Tucker, we observed that, where a repugnant verdict was the
result, not of irrationality, but mercy, courts "should not . . .
undermine the jury's role and participation by setting aside the
verdict" (55 NY2d at 7).    But if this mercy function is the cause
of a repugnant verdict, the remedy of dismissal of the repugnant
conviction is arguably unwarranted.      Indeed, it provides a
defendant with an even greater windfall than he has already
received.
            There is no constitutional or statutory provision that
mandates dismissal for a repugnancy error.     Given that New York's
repugnancy jurisprudence already affords defendants greater
protection than required under the Federal Constitution (see
Muhammad, 17 NY3d at 538), permitting a retrial on the repugnant


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charge upon which the jury convicted, but not on the charge of
which the jury actually acquitted defendant, strikes a reasonable
balance.   This is particularly so given that a reviewing court
can never know the reason for the repugnancy.   Accordingly, the
People may resubmit the crime of first-degree manslaughter as a
hate crime to a new grand jury (see People v Mayo, 48 NY2d 245,
253 [1979]).
           Finally, we again emphasize that where "a trial court
finds that an announced verdict is repugnant, it may explain the
inconsistency to the jurors and direct them to reconsider their
decision" (Muhammad, 17 NY3d at 541 n 5).   Indeed, under the
Criminal Procedure Law the trial court not only may, but must, do
so (see CPL 310.50 [2] ["If the jury renders a verdict which in
form is not in accordance with the court's instructions or which
is otherwise legally defective, the court must explain the defect
or error and must direct the jury to reconsider such verdict"]).
           Accordingly, the order of the Appellate Division should
be modified by granting the People, if they be so advised, leave
to resubmit the charge of manslaughter in the first degree as a
hate crime to another grand jury, and, as so modified, affirmed.




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People of the State of New York v Dwight R. DeLee
No. 189




ABDUS-SALAAM, J. (concurring):
          I join the opinion of the Court in its entirety, as the
Court properly disposes of this case.    However, given that jurors
may be misled by confusing instructions on the order of
deliberations in future cases involving hate crime and regular
charges arising from the same incident, as the jurors evidently


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were here, I write separately to suggest possible ways in which a
trial court may properly instruct a jury so as to avoid repugnant
verdicts in such cases.
          Regardless of the specific relationship between a hate
crime charge and an equivalent non-hate crime charge arising from
the defendant's commission of the same offense, the court should,
at a minimum, unequivocally inform the jury that it cannot
convict the defendant of the hate crime and at the same time
acquit the defendant of the corresponding non-hate crime.
Rather, the court should explain, if the jury considers both
charges, it must either acquit on both, or it may convict on the
hate crime,1 or it may convict only on the lesser included non-
hate crime.
          Beyond that, amici in these cases propose different
instructions on the manner in which a jury must deliberate on a
hate crime charge and a related non-hate crime charge.       For
example, the District Attorneys Association of the State of New
York asserts that the court should tell the jury that the non-
hate crime is a lesser included offense of its hate-crime
variant, such that if the jury convicts the defendant of the hate
crime, it cannot deliberate on the non-hate crime allegedly
committed by the same criminal conduct.     Defendant suggests that
the court should inform the jury that they must deliberate on

     1
        Of course, again, the jury must be told that if it convicts on
the hate crime, it must either convict on the non-hate crime or it
must not reach a verdict on the non-hate crime.

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both the hate crime charge and the non-hate crime charge, and any
lesser included offenses under each charge, and arrive at a
consistent verdict on all charges.     By contrast Lambda Legal
Defense and Education Fund and its associated amici suggest that
the relationship between the crimes be explained via an
interrogatory on the verdict sheet rather than an oral
instruction.   Under that approach, the court would provide the
court with a verdict sheet asking the jury to indicate its
verdict on the non-hate crime charge and to separately declare
whether it also found the existence of the bias motive which is
essential to sustain a conviction on the hate crime charge.
          With the exception of Lambda Legal's proposed special
verdict sheet, which like any special verdict sheet is disfavored
under the law (see People v Ribowsky, 77 NY2d 284, 290 [1991]),
these proposed jury instructions all provide plausible guidance
on the consideration of hate crime charges and related non-hate
crime charges.   I believe, though, that courts would provide
particularly clear and legally correct guidance on this subject
by telling the jury to treat a non-hate crime as a lesser
included offense of an equivalent hate crime allegedly committed
via the same criminal acts.
          Under our precedent's criteria for lesser included
offenses, a non-hate crime appears to be a lesser included
offense of an equivalent hate crime.    In that regard, we have
held that one offense is a lesser included offense in relation to


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another offense if: (1) the alleged greater offense is
unequivocally of a different degree, and carries a considerably
different sentence, than the lesser offense; and (2) it is
theoretically impossible to commit the greater offense without
also committing the lesser offense by the same conduct (see CPL
1.20 [37]; People v Miller, 6 NY3d 295, 300-302 [2006]; People v
Glover, 57 NY2d 61, 63-64 [1982]).     And, in Miller, supra, we
made clear that an offense which is classified under the same
letter grade as a related offense may still be greater than the
related offense if the two offenses "are unequivocally of
different degrees and carry considerably different sentences"
(id. at 300).
           Because a hate crime and the equivalent non-hate or
ordinary crime share all the same elements, with the exception of
the bias motive that elevates a regular crime to a hate crime
(see Penal Law § 485.05), it is impossible to commit the hate
crime without also committing the ordinary crime.    Furthermore,
although a hate crime shares the same felony grade classification
as an equivalent ordinary crime, the ordinary crime may be a
lesser included offense of the hate crime if the hate crime is
unequivocally of a different degree than, and carries a
considerably different sentence than, the ordinary crime.    And, a
hate crime is, as a practical matter, of a greater degree than,
and carries a greater sentence than, the equivalent ordinary
crime.   In passing the Hate Crimes Act of 2000, the Legislature


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plainly made hate crimes greater offenses than their equivalent
ordinary crimes.   The Legislature expressly found that hate
crimes are uniquely harmful in comparison to similar ordinary
crimes because they "do more than threaten the safety and welfare
of all citizens" by "intimidat[ing] and disrupt[ing] entire
communities and vitiat[ing] the civility that is essential to
healthy democratic processes" (Penal Law § 485.00).   The
Legislature's treatment of hate crimes as greater offenses is
further codified in Penal Law § 485.10, which provides that when
a defendant is convicted of a hate crime and "the specified
[equivalent ordinary] offense is a misdemeanor or a class C, D or
E felony," the hate crime "shall be deemed to be one category
higher than the specified offense" (Penal Law § 485.10 [2]), and
that hate crimes with higher grade classifications must be
punished within a defined set of severe sentencing ranges (see
Penal Law §§ 485.10 [3]; 485.10 [4]).   Thus, not only has the
Legislature concluded that hate crimes are of an unequivocally
greater degree than their ordinary variants, but it has also
decided to impose considerably higher sentences for hate crimes.
           Accordingly, an ordinary crime is a lesser included
offense of the equivalent hate crime, and in a case involving an
ordinary criminal charge and the equivalent hate crime charge
arising from the same criminal conduct, the jury should be told
that the ordinary crime is a lesser included offense of the hate
crime.   To that end, the court should instruct the jury that if


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it convicts the defendant of the greater offense, it "will not
consider" the lesser included offense (New York CJI2d, Lesser
Included Offenses).   In that situation, the jury should be told
to deliberate on any unrelated charges based on different
criminal conduct.   Of course, if the jury instead acquits the
defendant of the hate crime, it should next deliberate on the
equivalent ordinary offense, and in the event of an acquittal on
that ordinary charge, it may consider any lesser hate crime or
lesser included ordinary crime which has been charged based on
the same conduct.
          By preventing the jury from deliberating on an ordinary
charge after it has convicted the defendant of the equivalent
hate crime, a lesser included offense instruction would preclude
the jury from reaching an inconsistent verdict, or any verdict
for that matter, on the ordinary crime.   And, in the event that
the jury ignores the instructions and convicts the defendant of
both the hate crime and the corresponding ordinary crime, the
court may eliminate excessive punishment by dismissing the non-
hate crime count as an inclusory concurrent offense (see CPL
300.40 [3] [b]; Miller, 6 NY3d at 303-304).   The treatment of an
ordinary crime as a lesser included offense of the equivalent
hate crime may also give appellate courts desirable flexibility
in crafting appropriate remedies for any deficiency in the trial
evidence establishing defendant's guilt of the hate crime.
Specifically, where a defendant is convicted of a hate crime


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based on ample evidence of his conviction of the equivalent
ordinary crime but on insufficient evidence of the bias motive,
the court need not dismiss the entire conviction in the face of
the compelling evidence of the defendant's guilt of the ordinary
crime but may instead reduce the hate crime conviction to a
conviction for the ordinary offense (see CPL 470.15 [2] [a]).
            In sum, trial courts should instruct jurors in a clear
manner to avoid repugnant verdicts in mixed hate-and-ordinary-
crime prosecutions, and to achieve that goal, I believe courts
should consider informing jurors that an ordinary crime is a
lesser included offense of the corresponding hate crime.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order modified by granting the People, if they be so advised,
leave to resubmit a charge of manslaughter in the first degree as
a hate crime to another grand jury and, as so modified, affirmed.
Opinion by Judge Read. Chief Judge Lippman and Judges Graffeo,
Smith, Pigott, Rivera and Abdus-Salaam concur, Judge Abdus-Salaam
in a concurring opinion.

Decided November 24, 2014




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