People v. Duffy

60 Misc. 2d 755, 304 N.Y.S.2d 495, 1969 N.Y. Misc. LEXIS 1249

• Court: Nassau County District Court
• Decided: September 3, 1969
• Status: Published

Opinion

John S. Lockman, J.

At the conclusion of a hearing before a jury to determine whether the defendant is a narcotics addict pursuant to section 208 of the Mental Hygiene Law, the People request a charge that the jury determination is by a preponderance of the evidence with only five of the six jurors necessarily concurring in the verdict.

Section 208 was amended by chapter 809 of the Laws of 1969, effective May 22, 1969, as follows:

“ (2) # * * If the defendant elects a jury trial on the issue of addiction, and the court be one empowered to conduct a jury trial, a jury shall be summoned and the provisions of article forty-one of the civil practice law and rules shall apply * * * The burden of proof shall be upon the people to prove the fact of addiction by a preponderance of the credible evidence. ’ ’

CPLR 4113 of article 41 provides: u (a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.”

Accordingly, the request is granted. (See People v. Fuller, 24 N Y 2d 292; Matter of James, 22 N Y 2d 545; People ex rel. McNeill v. Morrow, 32 A D 2d 375; Matter of Soltis v. Samenga, 32 A D 2d 1064.)