People v. Pickett

92 A.D.2d 843, 460 N.Y.S.2d 338, 1983 N.Y. App. Div. LEXIS 17216

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1983
• Status: Published

Opinions

— Judgment, Supreme Court, New York County (Dennis Edwards, Jr., J.), rendered April 6, 1981, convicting defendant, on jury verdict, of robbery in the first degree (Penal Law, § 160.15) and other crimes, and sentencing him thereon, is reversed, on the law, and a new trial is ordered. The evidence, while sufficient to sustain the jury verdict that the defendant was guilty of robbery rather than merely larceny by swindling, was by no means overwhelming. The jury having brought in a verdict of guilty, the jury was polled at defendant’s attorney’s request. With respect to one of the jurors, the minutes reflect the following on the polling: “court clerk: Mary White, are those your verdicts? miss white: Yes. court clerk: Mary — miss white: Yes, under duress, I’m saying yes. mr. perlmutter: Your Honor, may we approach? the court: No. Are they your verdicts, yes or no? miss white: Yes.” After the polling was completed, and the verdict entered, there was an off-the-record discussion between the court and counsel, after which the court excused the jury and defendant’s attorney then amplified the record to show that he had requested the court to hold a hearing or question the juror to make a determination as to what the duress consisted of. The court stated that the jurors had been instructed at the voir dire, in summations and in the charge, of their duty to deliberate and exchange views and to adhere to their views after believing they are right, and after discussion with the other jurors. Accordingly, the court said he found no basis to conduct any hearing or make any further inquiry with respect to the polling of the jury. The purpose of polling the jury is to make sure that the verdict does indeed express the voluntary verdict of that particular juror. When a juror gives an equivocal response on being polled, the Trial Judge is obviously in the best position to determine whether what is being expressed is merely the reluctance of one human being to condemn another, or whether indeed the verdict is not the verdict of that juror. Here immediately after the juror said “under duress,” the court said “Are they your verdicts, yes or no?”. From this the juror might well have thought that the court was not interested whether the verdict was under duress or not. And the inference we draw from the transcript is that the Judge was not making a judgment of fact from the juror’s demeanor, etc., that the verdict did indeed represent the voluntary verdict of that juror. No doubt the juror was not using the word “duress” in any technical legal sense; but at least the word “duress” does carry the connotation that the verdict is not voluntary and unforced by circumstances unrelated to the merits. While the Judge was properly conscious of his duty not to invade the privacy of jury deliberations, he still should have done something to satisfy himself that the verdict was the individual voluntary verdict of that juror. Perhaps the safest course would have been to follow the procedure specified in CPL 310.80: “If upon either the collective or the separate inquiry any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation.” Or alternatively, in the exercise of discretion, the Judge might have exercised his discretion to the extent of giving the juror an opportunity to elucidate briefly what she meant by the statement “under duress” or by the court reinstructing the juror on her duty to render a verdict that represented her own voluntary views after discussion with the other jurors, and then asking her whether that was her verdict. The court should not have merely required the juror, without further inquiry, explanation or deliberation to answer “yes or no.” Accordingly, we reverse the judgment and direct a new trial. Concur —• Sullivan and Silverman, JJ. Carro, J., concurs in a separate memorandum, and Sandler, J. P., concurs in the memorandum decision of this court as well as in the concurring memorandum of Carro, J., and Bloom, J., dissents in a memorandum, all as follows: