PEOPLE v. FRANCOIS (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Nestor H. Diaz, J.), rendered February 1, 2024, convicting him of grand larceny in the third degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted, after a jury trial, of grand larceny in the third degree and criminal possession of stolen property in the third degree.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Silverstein, 236 A.D.3d 827, 829, 229 N.Y.S.3d 212).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Erber, 243 A.D.3d 804, 805, 244 N.Y.S.3d 282;  People v. Myles, 172 A.D.3d 752, 753, 99 N.Y.S.3d 433;  People v. Murphy, 162 A.D.3d 688, 688, 74 N.Y.S.3d 755).

Contrary to the defendant's contention, the Supreme Court did not impermissibly merge two theories of larceny by instructing the jury as to both larceny by false promise and larceny by trick and create the risk of a non-unanimous verdict as to the method by which the larceny was committed.  Rather, “there need not be juror unanimity as to the particular method by which the larceny was committed” (People v. Ponnapula, 229 A.D.2d 257, 273, 655 N.Y.S.2d 750;  see Penal Law § 155.45[2];  People v. Tighe, 2 A.D.3d 1364, 1365, 768 N.Y.S.2d 871;  People v. Watson, 284 A.D.2d 212, 212, 728 N.Y.S.2d 9).

The defendant's contention regarding the timing of the appointment of the jury foreperson is without merit.  “[C]ertain deviations from mandated procedural, structural and process-oriented standards affect the organization of the court or the mode of proceedings prescribed by law and present a question of law even without a timely objection” (People v. Bostic, 217 A.D.3d 678, 680–681, 190 N.Y.S.3d 443 [internal quotation marks omitted];  see People v. Cooper, 158 A.D.2d 465, 465, 551 N.Y.S.2d 254).  “Only fundamental defects in judicial proceedings, however, fall within this very narrow category of so-called ‘mode of proceedings' errors” (People v. Bostic, 217 A.D.3d at 681, 190 N.Y.S.3d 443 [internal quotation marks omitted];  see People v. Fernandez, 72 A.D.3d 303, 306, 897 N.Y.S.2d 158, affd 15 N.Y.3d 213, 907 N.Y.S.2d 106, 933 N.E.2d 705).  Here, while the Supreme Court erred in failing to designate the jury foreperson until after the first witness had testified, the error was not a mode of proceedings error (see CPL 270.15[3];  People v. Bostic, 217 A.D.3d at 681, 190 N.Y.S.3d 443;  People v. Lee, 129 A.D.3d 1295, 1299, 13 N.Y.S.3d 581;  People v. Alexander, 104 A.D.3d 1221, 1221, 960 N.Y.S.2d 581), and was harmless (see People v. Burgess, 280 A.D.2d 264, 265, 719 N.Y.S.2d 649).

Contrary to the defendant's contention, the Supreme Court's decision to poll the jury as to whether they heard a remark made by a discharged alternate juror was not an error warranting reversal.  “[A] trial court's investigation of juror misconduct or bias is a delicate and complex task, and courts must have broad flexibility in matters involving the jury” (People v. Kuzdzal, 31 N.Y.3d 478, 485, 80 N.Y.S.3d 189, 105 N.E.3d 328 [citation and internal quotation marks omitted];  see People v. Wiggins, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06539, *2).  “Thus, while a court looking into juror misconduct must investigate and, if necessary, correct a problem, it must also avoid tainting a jury unnecessarily․  In this endeavor, sometimes less is more” (People v. Kuzdzal, 31 N.Y.3d at 485–486, 80 N.Y.S.3d 189, 105 N.E.3d 328 [internal quotation marks omitted];  see People v. Batticks, 35 N.Y.3d 561, 566, 135 N.Y.S.3d 34, 159 N.E.3d 758).

Here, the Supreme Court properly declined to speak to each juror individually after discharging the alternate juror who had made the inappropriate remark.  After confirming with the alternate juror that it did not appear that any of the other jurors had heard the remark, and after ascertaining that it was highly unlikely that any of the other jurors had heard the remark, the court properly decided to poll the remaining jurors as to whether they heard a remark that would affect their impartiality, instead of conducting an intrusive inquiry of each remaining juror individually when it did not appear that any of the other jurors had even heard the remark (see People v. Kuzdzal, 31 N.Y.3d at 483, 80 N.Y.S.3d 189, 105 N.E.3d 328;  People v. Batticks, 35 N.Y.3d at 566, 135 N.Y.S.3d 34, 159 N.E.3d 758).

The defendant's contention that the Supreme Court erred in allowing the People to display certain visual aids during summation is without merit.  The court properly allowed the People to display an enlargement of an exhibit as well as a compilation of multiple exhibits as part of their summation, and the People were not required to move the presentation itself into evidence (see People v. Williams, 29 N.Y.3d 84, 89, 52 N.Y.S.3d 266, 74 N.E.3d 649;  People v. Anderson, 29 N.Y.3d 69, 72, 52 N.Y.S.3d 256, 74 N.E.3d 639).