People v. Pickett

— 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

(dissenting). Defendant was convicted of robbery in the first degree, criminal possession of a firearm in the first degree and fraudulent accosting. Upon the return of the verdict the defendant’s attorney requested that the jury be polled. During the polling the following took place: Clerk: “Mary White, are those your verdicts?” Mary White: “Yes, under duress, I’m saying yes”. Defense counsel: “Your Honor, may we approach?” The court: “No. Are those your verdicts, yes or no?” Mary White: “Yes”. After completion of the polling of the jury a sidebar conference was held at which defense counsel urged that the court make inquiry of the jurors to determine what the duress consisted of. The court refused indicating that to do so would invade the privacy of the jury room. We are now called upon to determine whether acceptance of the verdict by the court under those circumstances constituted error. There are four cases in this State which, to my knowledge, have dealt with the matter. The first was People v Gottlieb ( 44 AD2d 587 ). Two issues were passed upon. The first was whether an application for a certificate of occupancy was an “instrument” within the meaning of section 175.35 of the Penal Law which makes it a crime to offer a false instrument for filing; the second involved much the same situation as that here presented. There, when the jury was polled two jurors responded evasively as to whether the verdicts announced were their verdicts. Juror number 7 answered “ ‘Guilty with reservations’ ” while juror number 12 answered “ ‘Yes, with a question as to intent to defraud’ ” (p 590). Without further instructions and without leaving the jury box the jury was immediately repolled and all indicated their assent to the verdict. Our brethren in the Second Department affirmed the conviction by a vote of four to one. The Court of Appeals reversed ( 36 NY2d 629 ). However, it did so solely on the ground that the application for a certificate of occupancy was not an “instrument” within the meaning of section 175.35 of the Penal Law. The court did not reach the question of the propriety of accepting the verdict. Next in line was a Third Department case, People v Crandall ( 53 AD2d 956 ). Among the several issues before the court was one dealing with the verdict. Upon the polling of the jury as to one of the counts, one of the jurors answered “no” in response to the question “Is that your verdict”. The court commented on the lateness of the hour and asked the juror whether he misunderstood. After the juror answered in the affirmative the jury was repolled and all answered “yes”. The conviction was affirmed. Following Crandall came our decision in People v Farrell ( 66 AD2d 718 ). There, after the verdicts had been returned, the jury was polled. The forewoman was the first to be asked whether the verdicts on both counts of robbery in the second degree were her verdicts. She responded: “Yes — what do you mean? I’d like to explain Actually, I didn’t understand the whole thing but * * * The Court: It’s a very simple thing. Do you believe that the defendant is guilty of robbery, in the second degree? Forewoman: Well, according to some of the charges, yes. But not quite * * * The Court: You have to sit now and think and tell me yes or no. I’ll read it * * * Forewoman: Guilty. The Court: Guilty, thank you”. Pursuant to a request by defense counsel there was further colloquy between the court and the forelady. We held (p 718) that “while it might have been preferable, when the possibility of a doubt in the juror’s mind was indicated, to send the jury back into session for a resolution of the doubt, in the totality of the circumstances demonstrated by a reading of the transcript with regard to the jury’s determination and the polling of the jury, there could be no real question with respect to the determination of guilt”. The final case in the quartet is a Fourth Department holding, People v Garvin ( 90 AD2d 682 ). In that case, when