People v. Aponte , 759 N.Y.S.2d 486 ( 2003 )

—Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered May 30, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to a term of 6 to 12 years, reversed, on the law, and the matter remanded for a new trial.

Defendant was arrested following an undercover “buy and bust” operation and charged with selling $20 worth of crack cocaine to an undercover detective in a building located at 310 East 100th Street. After the detective left the building, he radioed the other members of his team and described the suspect as “male hispanic, white durag [sic], white shirt, blue jeans and white sneakers.” (A “do rag” is a cloth, wrapped and tied tightly around the head above the eyes and ears, covering the hair.) At trial, the detective testified that the suspect also wore a black baseball cap atop his do rag. The other police officers moved in and detained a group of Hispanic males in the vicinity of the drug sale, including defendant, who wore neither a white do rag nor a black hat. The undercover detective returned in a car to the area and did a “drive-by” identification of defendant as the seller, and defendant was then arrested. The identification was made at night, with street lights providing the only illumination, following a transaction that had lasted only a few minutes. The arresting officers conducted a search of defendant and of the vicinity, but did not find any of the premarked money that had been used in the drug purchase or any drugs.

The only real issue in the trial of the case was the reliability of the undercover detective’s identification of defendant as the individual who sold him the drugs. The trial consisted of the testimony of two prosecution witnesses — the undercover detective and a second police officer involved in the operation — and one defense witness — a resident of the East 100th Street neighborhood who testified that defendant had been visiting her on the evening in question and that he left shortly before the police detained the group of Hispanic men. The testimony was completed in approximately three hours.

Following the court’s charge, the jury began its deliberations. The jury sent out three notes, requesting that it be provided with specific exhibits and that certain testimony be read back. After approximately five hours of deliberations, the jury sent out its first deadlock note to the court. The court reconvened the jury and admonished it, in part, as follows: “I don’t know what you expected when you signed on for jury service. You’ve heard me in one way or the other say I’ve been doing this for 18 years and this is jury deliberations. Continue deliberating. We await your verdict.”

The jury returned to its deliberations without decision for the remainder of the day. During deliberations the next day, the jury requested a readback of the undercover detective’s testimony regarding the time of the “actual sale.” After more than five hours of further deliberation, the jury sent its second deadlock note to the court. The court called the jury back to the courtroom and, in a supplemental charge, instructed it in relevant part as follows:

“[t]he point of the process is to get a result. Something happened in this case. It was proven or not. The standard was met or it was not. The tree that fell made a noise or it didn’t * * *. Something hit the bell probably and with nobody around. Only you folks can tell us was there a gong, a ding, a ping or nothing * * * [I told] you what the law is to put you in a position to do what you said you would do when we started, which is to decide this case * * *. Something happened in this case. It was not a nonevent. The standard was met or it was not, and there is no other entity on the face of the earth [besides the jury] that can tell us what the answer is to that.

“Whether there is the rare occurrence — of course, it happens, but it is a rare occurrence — * * * of a jury unable to resolve a case is not a factual decision. It’s a legal decision. It is not your decision. It is mine. We are nowhere near at the point where I would begin to consider the possibility that you folks might not be able to resolve this case. Continue your deliberations, please.” The trial court denied defendant’s objection to the supplementary jury instruction, rejecting his contention that the instruction was an improper Allen charge (see Allen v United States, 164 US 492, 501 [1896]). Five minutes after the court gave its supplementary charge, the jury returned a verdict of guilty.

Defense counsel’s objection included the assertion that the supplementary instruction “would lead [jurors] to feel that they were doing something improper” if they were “steadfastly holding to a firm conviction either way whether for a conviction or acquittal.” Thus, contrary to the dissent’s contention, this objection was preserved as it was made in sufficient time “to call the court’s attention to and permit it to correct” (People v Narayan, 54 NY2d 106, 114 [1981]) the asserted error.

In discussing the preservation issue, the dissent concedes that the defense maintained that the Allen charge was coercive, but contends that defendant’s request was that the jurors only be told that they could deliberate further. This misapprehends the import of the quoted language. Defense counsel, in taking exception to the supplemental charge, conveyed the essence of the need for a cautionary instruction that jurors should not abandon conscientiously held beliefs simply to reach a verdict, thus preserving the issue for appeal.

Defendant contends that the trial court’s supplementary instruction was an “unbalanced” Allen charge (see Allen v United States, 164 US 492, 501 [1896]) that exerted improper pressure on the members of the jury to return a guilty verdict. We agree.

When faced with a deadlock, a trial court must decide whether to declare a mistrial or give the jury a supplementary instruction directing it to continue deliberating and try to reach agreement, an instruction meeting the criteria set by the United States Supreme Court in Allen v United States (164 US 492, 501 [1896]). The decision as to which course to take is one committed to the trial court’s discretion (see Plummer v Rothwax, 63 NY2d 243, 250 [1984]). Although the trial court stated that its supplementary instruction was not an “Allen” charge, that is essentially what it was (see e.g. Smalls v Batista, 191 F3d 272 [1999]). An appropriate Allen charge “encourage[s] the jurors to continue their deliberations in an attempt to reach a verdict” (People v Shortridge, 294 AD2d 182, 183 [2002], lv denied 98 NY2d 681 [2002]), but such a charge “must not attempt to persuade jurors to abandon their beliefs or convictions, must not attempt to coerce dissenting jurors to reach a particular verdict, and must not attempt to shame the jury into reaching any verdict” (People v Cowen, 249 AD2d 560 [1998]). In this case, the trial court’s supplementary instructions failed to inform the jurors that, while they each should be open to considering the views of the others, no juror should feel compelled to abandon conscientiously held beliefs (People v Alvarez, 86 NY2d 761, 763 [1995]; People v Ali, 65 AD2d 513, 514 [1978], affd 47 NY2d 920 [1979]; see also People v Nunez, 256 AD2d 192 [1998], lv denied 93 NY2d 975 [1999]). Instead, the instruction simply stressed the need to “get a result.” A charge that stresses the need for a verdict at the expense of the individual jurors’ judgment mandates reversal (People v Demery, 60 AD2d 606 [1977]).

In addition to improperly emphasizing the need to come to a verdict, even at the expense of individual jurors’ good-faith and strongly held beliefs, the trial court’s Allen charge improperly sought to shame the jury into reaching a verdict by its suggestion that the jurors were failing in their duty to do what they “said” they would do “which is to decide this case.” The coercive effect of the instruction was also exacerbated by the trial court’s insistence that “[something happened” in this case, “[s]omething hit the bell,” and “[t]he tree that fell made a noise or it didn’t,” which may have misled the jury into believing that finding that a sale occurred necessitated a finding of defendant’s guilt, when the key issue in the case was not whether or not there was a sale but whether defendant was the seller.

Finally, the court’s admonition to the jury, after two days of deliberating over a three-hour trial, that it was “nowhere near at the point where I would begin to consider the possibility that you folks might not be able to resolve this case,” added to the coercive impact of the instruction by presenting the jurors with the prospect of unending deliberations unless and until a verdict was reached. The fact that the jury returned a verdict of guilty within five minutes of having received the supplementary instruction certainly suggests that the instruction had the desired effect of “getting a result.”

It is true, as the dissent points out, that the adequacy of the Allen charge must be considered in conjunction with the original charge (see e.g. People v Crawley, 291 AD2d 310 [2002], lv denied 98 NY2d 674 [2002]). The objection in that case was that the trial court had failed to include in its Allen charge the instruction that the jurors were to consider the evidence against each defendant separately. That is very different from the issue presented here.

The trial court in this case did instruct the jury in the main charge that the verdict had to reflect the individual verdict of each juror. The court refused to include any such suggestion or instruction in any of its supplemental instructions. No case has been identified in which such a challenged omission was approved on the ground that the matter had been covered in the court’s main charge. This Court, in People v Ali (65 AD2d 513, 514 [1978]) stated: “An Allen charge * * * is proper if it assists the jury in its deliberations by stressing the importance of reaching a verdict without forcing any juror to yield a conscientious belief * * * The charge here properly stressed the importance of each juror keeping an open mind to the arguments advanced by the others. But the court erred when it failed to balance that instruction by stressing that ‘the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion’ of the others. (Allen v United States, [164 US 492 at] 501.) In our view, this imbalance had a coercive effect upon the jury.” (Citations omitted.)

In the present case, the overemphasis in the supplementary charge on getting a result, the suggestions that the jurors were failing in their duty, the insistence that the jurors should reach a verdict because “[something happened,” the threat of prolonged, potentially unresolvable deliberations, as well as the omission of the admonition cited in Ali (supra), all combined to overshadow the appropriate message in the original instructions. The combination of coercive instructions in this case compels the conclusion that the verdict cannot stand.

In light of the foregoing, we need not address defendant’s additional claims that the prosecutor committed misconduct during summation and that his sentence was excessive. Concur— Mazzarelli, J.P., Rosenberger and Lerner, JJ.