People v. Morgan

124 A.D.3d 406, 1 N.Y.S.3d 39

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 2015
• Docket: 13717 1762/08
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Nicholas J. Iacovetta, J.), rendered February 7, 2012, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 18 years, affirmed.

After the jury purported to return a verdict but a poll revealed that two jurors did not agree, the court properly instructed the jury to resume deliberation and attempt to reach a unanimous verdict. Contrary to defendant’s argument, defendant was not deprived of due process by the absence from this instruction of language reminding the jurors not to surrender their conscientiously held beliefs. The court had so instructed the jury in a charge that was given, with defendant’s consent, two hours earlier. “Jurors are presumed to follow the legal instructions they are given” (People v Baker, 14 NY3d 266, 274 [2010]). Therefore, the court’s charge in response to the defective verdict was appropriate under the circumstances (see People v Ford, 78 NY2d 878 [1991]; People v Jolly, 282 AD2d 474, 474-475 [2d Dept 2001], lv denied 96 NY2d 863 [2001]). Contrary to defendant’s argument, the charge did not apply improper pressure on the two jurors who did not agree with the verdict or criticize those particular jurors (see People v Pagan, 45 NY2d 725 [1978]). Moreover, defense counsel did not actually request any particular instruction. Counsel merely conjectured that the two jurors who initially disagreed with the verdict might be led to believe that the case could not be resolved unless they submitted to the will of the remaining jurors. We note that the jury did not announce the verdict until a full day after the disputed charge was given following the readback of testimony it requested. Accordingly, the record does not support the dissent’s position that the court’s deadlock charge was coercive.

Defendant’s contention that he was deprived of a fair trial when the court denied the jury’s request for a readback of defense counsel’s summation is unpreserved and waived, since defense counsel expressly agreed to the court’s proposal to deny the jury’s request. We decline to review this claim in the interest of justice. As an alternative holding, we reject it on the merits, since “declining to read back a summation,is not an abuse of discretion” (People v Clariot, 188 AD2d 281, 282 [1st Dept 1992], lv denied 81 NY2d 838 [1993]; see also People v Velasco, 77 NY2d 469, 474 [1991]).

Defendant’s ineffective assistance of counsel claim relating to the summation readback issue is unreviewable on direct appeal (People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

Concur — Sweeny, J.E, DeGrasse, Feinman and Gische, JJ.