People v. Perfetti

78 A.D.2d 971, 433 N.Y.S.2d 680, 1980 N.Y. App. Div. LEXIS 13737

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1980
• Status: Published

Opinions

Judgment affirmed. Memorandum: Defendant has been convicted, on evidence more than sufficient to establish his guilt, of criminal sale of a controlled substance, sixth degree. The dissenter would reverse the judgment because of an incident which occurred immediately before the verdict was announced. The jury commenced its deliberations at 11:28 a.m. At 3:00 p.m. it returned to the courtroom to have the testimony of a police officer reread, returning to the jury room to deliberate once again at 3:40 p.m. Shortly thereafter the jury sent to the court a note stating that it would “like to state three opinions on the verdict, if we may.” Before the court had an opportunity to respond to that inquiry, however, the jury announced it had reached a verdict. When it was returned to the courtroom at 3:50 p.m., the court stated: “the court: First, the record will indicate that the Court received a note from the jury. ‘We would like to state three opinions on the verdict, if we may.’ And then since that time, it is my understanding you have reached a verdict. Is that correct? forelady: Yes. the court: Let me indicate to you, of course, that in a case of this type, the verdict is guilty or not guilty, and it’s not a question of stating an opinion, one way or other, forelady: Yes.” Defendant and his counsel were present during this exchange but counsel did not inquire about the note, did not except to the court’s instructions and did not object to receiving the verdict. Nor did any of the jurors question the court, object to receipt of the verdict, or evidence any disagreement with it. Defense counsel did not request a poll of the jury after its guilty verdict was received and the court excused the jury. Counsel’s only motion was to set aside the verdict as against the weight of the evidence. The motion was denied and the matter was adjourned for sentencing. Unfortunately the court mislaid the first note in which the jury asked to state its opinions. The forelady was in the building the next morning, however, and the court had her brought to chambers and she and the court made a record reconstructing the note. An Assistant District Attorney was present but defense counsel was not. He arrived while the forelady was present and the court then granted defense counsel an opportunity to examine the forelady on the contents of the note. The proceedings were irregular but they offer no ground for reversal. The court gave no instruction to the jury in the absence of defendant or his counsel and defendant by his silence waived his right to object to the court’s handling of the matter. As far as the proceedings the next morning are concerned it is not alleged that the reconstructed note is inaccurate and defendant merely speculates that it indicated indecision by the jury. The jury’s actions establish, however, that whatever doubts it had, if the opinions did in fact reflect doubts about defendant’s guilt, were resolved before they returned to the courtroom. The Ciaccio case (People v Ciaccio, 47 NY2d 431) relied upon by the dissenter is clearly distinguishable. That case involved possible jury coercion and an unauthorized communication with the jury before it rendered its verdict. All concur, except Dillon, P. J., who dissents and votes to reverse and grant a new trial, in the following memorandum.