People v. Albanese

27 A.D.2d 820, 278 N.Y.S.2d 98, 1967 N.Y. App. Div. LEXIS 4572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1967
• Status: Published

Opinions

Appeal from a judgment of the Supreme Court, County of New York, rendered March 4, 1966, upon a verdict convicting defendant of the crimes of grand larceny in the first degree and assault in the second degree.

Memorandum by the Court. Judgment of conviction, rendered on March 4, 1966, convicting defendant, after trial, of the crimes of grand larceny in the first degree and assault in the second degree, reversed on the law and new trial ordered.

Following the court’s charge, the case was given to the jury at 10:57 A.m. on January 21, 1966 and a guilty verdict was returned at 1:25 a.m. on January 22, 1966.

At 10:30 p.m., after having deliberated all day, with the exception of time out for lunch, the foreman sent a note to the court reading as follows: “ The jury is hopelessly deadlocked 11 to 1. This vote has not changed since 1:00 p.m. This is over nine hours.”

After this note was received the jury returned to the courtroom and the court, in part, charged as follows:

“ A juror should not be stubborn. A juror should not try to be a hero. A juror should reason with his fellow jurors. A juror should permit himself to be reasoned with.

“I don’t know how you stand. * * * All I know is that it is 11 to 1. * * * Permit yourself to be reasoned with. Be reasonable. You don’t lose your common sense once you take a seat in the jury.

“ * * * But it seems to me that an intelligent man ought to be able to reason with his other fellow jurors. * * *

“Now go inside and reason with each other and don’t be stubborn and don’t try to be a hero or heroes. * * *

“I do want you to make another sincere effort, but when you go in there just don’t sit there — talk, reason, listen, act like intelligent, civilized human beings."

At about 11:24 p.m. the jury sent out another note, which read: “We the

11 jurors who are in agreement about the verdict have tried hard and patiently to reason with the dissenting juror. We feel he is beyond reach of reasoning. He is either unwilling or unable to reassess his verdict. We beg your Honor’s advice.”

Following this note again the jury returned to the courtroom and, amongst other things, the court stated:

“ What I would suggest at the present moment is that this one juror, whoever he is, * * * I don’t know which one it is — listen to the judge. * * *

“What is troubling you? Can’t you reason with each other, or is it a matter of stubbornness or is it a matter of refusing to even talk?

“Kindly go back, and this one juror, talk it over with the other jurors. You owe an obligation and a duty to the State of New York to talk, to give reasons, to try to convince the others or be convinced. This isn’t child’s play here. We want a verdict one way or another if we can get it without sacrificing your honest convictions based on the evidence and not on a whim or a caprice or a surmise”.

The jury returned to its deliberations and, at about 11:50 p.m. sent the following note to the court: “The dissenting juror’s problem is that he is

not satisfied beyond all reasonable doubt that the evidence shows that the identification of the defendant in the Penguin restaurant is adequate to convict. We appreciate any further advice your Honor deems necessary.”

Again the jury returned to the courtroom and further instructions were given- to them concerning reasonable doubt, v;ith emphasis on distinction between a reasonable doubt and “beyond any doubt” or “all doubt”, not to mathematical certainty and “ not to be resorted to solely to afford an escape from doing a painful or disagreeable duty.”

The result of the various notes sent out by the jury was to reveal that there was a lone dissenter and that the dissenter, obviously, was for a “ not guilty” verdict. Under the circumstances disclosed in this ease, while it is true that the court did, on other occasions, speak of a juror’s right to adhere to his honest conviction, the cumulative and repeated instructions by the court, apparently directed to the one dissenting juror, may well have had the appearance of a coercive effect on that juror.