People v. Lavender , 502 N.Y.S.2d 439 ( 1986 )

OPINION OF THE COURT

Rosenberger, J.

After hearing testimony for something less than four days, the jury in this case commenced its deliberations close to noon on February 6, 1984. After deliberations and a rereading of some testimony, the jurors went to a hotel at about 11:00 p.m. that night. Deliberations resumed at about 10:00 the next morning. At 11:45 that morning, the jurors sent the court a note stating: "We are deadlocked at 11-1 and the one person feels that there is not enough evidence in the case to make a decision.” At 2:55 p.m. the court showed the note to the attorneys. The defendant’s attorney moved for a mistrial. The motion was denied by the court. The court advised the jurors to continue their deliberations. Several additional notes were received from the jurors during the course of the afternoon and evening. Three of them were of the tenor of complaint regarding the lone "hold out” juror.

Defense counsel once again moved for a mistrial. The court recharged the jury regarding burglary in the first degree, and added an Allen charge. The defendant’s attorney objected to the Allen charge as coercive and renewed his motion for a mistrial. He maintained that the further instruction was clearly aimed at the lone juror who was voting for acquittal. The motion was denied. At the end of the second day of deliberation, the defendant’s attorney once again renewed his motion for a mistrial. The motion was again denied and the jury was sent to a hotel for the night.

The jury resumed its deliberation at 10 o’clock the next morning. The jury sent the court two notes, one at 10:21 a.m. and the other at 11:02 a.m. Each of these notes complained about the lone juror. Each of them asked the court for advice on how to proceed. At 11:45 a.m., the court showed the attorneys the aforesaid notes. For the fourth time, defense counsel moved for a mistrial. The court denied the motion, indicating it would entertain the application again at 2:30 p.m. The court then advised counsel that the jurors had been given a 15-minute break outside the jury room at 12:06 p.m.

At 2:04 p.m., a note was received from the "hold out” juror. In this note, the juror complained about the actions of another juror. She stated, inter alia: "Today she threatened me and came at me ready to attack me with violence. Had not the jurors held her back she would have struck me. She virtually arose from her chair from the other corner of the room and came at me with her fists. This is a very bad action for a juror to take when a person wishes to express an opinion and everyone should respect that opinion whether it is to their liking or not.” The defense attorney once again unsuccessfully moved for a mistrial. Shortly thereafter, the jury announced its verdict.

None of the three notes sent by the jury on its last day of deliberation were responded to by the court. After the second note of the day had been received, there was a conference, in the robing room, between the court and counsel for both sides. It concluded with the following exchange between the prosecutor and the court:

"[assistant district attorney]: But they are asking for advice.

"the court: The only thing I can do is read to them what I read to them at 7 o’clock [the previous evening],

"[assistant district attorney]: It seems to me that the jury is waiting for something from the Court.

"the court: I do not intend to address them. I intend to tell them nothing. I intend to let them have their food and continue their deliberations.

"[assistant district attorney]: Yes sir.

"the court: All Right.”

This exchange followed the denial of the fourth application for a mistrial by the attorney for the defendant.

The trial court has no discretion as to whether or not to answer a proper question from a jury. (People v Malloy, 55 NY2d 296 [1982], cert denied 459 US 847 [1982]; People v Miller, 6 NY2d 152 [1959]; People v Gezzo, 307 NY 385 [1954]; People v Lupo, 305 NY 448 [1953]; People v Gonzalez, 293 NY 259 [1944]; CPL 310.30.) There was a clear obligation on the part of the court to respond to the jury’s pleas for guidance. The court’s refusal to respond was error.

It is a long-standing rule that testimony of jurors is not ordinarily competent to impeach the duly rendered verdict of the jury. (People v De Lucia, 20 NY2d 275 [1967]; People v Sprague, 217 NY 373 [1916].) There are, of course, exceptions to this rule. (People v De Lucia, supra.) We deal here, however, with a statement made by a juror, not after the jury has rendered its verdict, but during the course of deliberations. Thus, the concern regarding posttrial harassment of jurors (People v De Lucia, supra) or of "second thoughts” by jurors is not present. In the instant case, a juror told the court about a genuine, perceived, physical coercion of herself by another juror.

The dissent cites People v Jacobson (109 Misc 2d 204 [Sup Ct, Bronx County 1981], affd 89 AD2d 826 [1st Dept 1982], lv denied 57 NY2d 781 [1982]) and Jacobson v Henderson (765 F2d 12 [2d Cir 1985]). In both of those opinions (dealing with the same trial), the courts noted that the jurors had had the opportunity to communicate their concerns to the trial court but had not done so. The Court of Appeals observed (765 F2d, at p 15): "[T]he complaining jurors had several opportunities to communicate directly with the court if any of them felt unfairly coerced, harassed, intimidated, or felt themselves to be in physical danger.” The Supreme Court noted "[T]his court rejects the claim that the jurors could not transmit their fears to the bailiff or the court. They did not see fit to do so until prodded by a representative of the defendant some four weeks to six months later” (109 Misc 2d, at p 211). The situation here, as previously noted, is different. The complaining juror did, before the verdict was announced, report directly to the court that she had been coerced, harassed, intimidated, and felt herself to be in physical danger.

Stein v New York (346 US 156, 178 [1953]), also cited in the dissent, holds that statements by jurors may not ordinarily be used to impeach a verdict once the jury has been discharged. In the instant case, the juror’s statement had been transmitted to and received by the court prior to the discharge of the jury and, in fact, prior to the report of the verdict.

This court has said that "[t]he court has the * * * duty to protect its officers. This duty embraces the obligation not to subject counsel to unnecessary personal risk.” (Matter of Legal Aid Socy. v Rothwax, 69 AD2d 801 [1st Dept 1979].) The court has at least as great a duty to protect those citizens of the State who are "drafted” and properly respond to a subpoena summoning them for jury service.

The verdict here was the result of coercion. A juror was threatened with assault by another juror, which threat was reported to the court but ignored by it. The juror thereupon acquiesced in a conviction. Such a verdict should not be permitted to stand. In light of this result, it is unnecessary to reach the appellant’s other contentions.

Accordingly, the judgment of the Supreme Court, Bronx County (Cerbone, J.), rendered March 19, 1984, which convicted defendant of attempted rape in the first degree, and sentenced him, as a persistent violent felony offender, to an indeterminate term of imprisonment of 25 years to life, should be reversed, on the law, and the matter remanded for a new trial.