noting that “[cjounsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict with *548 out conducting a hearing as to juror number 6,” and finding “no basis to conclude that the verdict was less than unanimous”
How later courts described this case
- noting that “[cjounsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict with *548 out conducting a hearing as to juror number 6,” and finding “no basis to conclude that the verdict was less than unanimous”
Written by the judges who cited it.
The opinion
Rosenberger, J.
(dissenting). A State criminal defendant has a right to a unanimous trial verdict (NY Const, art I, §§ 2, 6), and CPL 310.80 provides that upon application, the jury must "be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict”. This section further provides that, where "no disagreement is expressed”, the jury is to be discharged (ibid.)
The object of the jury poll is " 'to test the uncoerced unanimity of the verdict by requiring "each juror to answer for himself, thus creating individual responsibility, eliminating any uncertainty as to the verdict announced by the foreman” ’ ” (United States v Gambino, 951 F2d 498, 502, cert denied sub nom. D’Amico v United States, 504 US 918 [citations omitted]). Further, " 'upon the appearance of any uncertainty or contingency in a jury’s verdict, it is the duty of the trial judge to resolve that doubt, for "there is no verdict as long as there is any uncertainty or contingency to the finality of the jury’s determination.” (citations omitted)’ ” (United States v Rastelli, 870 F2d 822, 835, cert denied sub nom. Agar v United States, 493 US 982 [2d Cir 1989], adopting the test set forth in United States v Morris, 612 F2d 483, 489 [10th Cir 1979]).
Upon the polling of the jury, it took over seven minutes and approximately 16 requests of juror number six, and considerable prodding by the Judge, before this juror provided a response to the court’s inquiry as to whether the verdict announced by the foreperson was, in fact, her verdict. After six requests for an answer, with no response forthcoming, the following took place:
"the court: What’s the juror’s name?
"court clerk: Betty Hallums.
"the court: Miss Hallums, do you hear me?
*494 "juror number six: Yes.
"the court: Yes? Do you hear me?
"juror number six: Yeah.
"the court: Do you understand my question?
"juror number six: Yes.
"the court: Do you understand that you’re being asked whether you agree with the verdict that’s been announced? Do you understand that?
"You do understand that?
"Do you agree with that verdict? Is that your verdict as it was announced?
"Please tell us yes or no?
"(No response.)
"[defense counsel]: Judge, I request a sidebar.
"the court: No. I want a response. Either yes or no?
"(No response.)
"the court: What is it that you want to say? Are you able to speak?
"juror number six: Yes.
"the court: Tell us either yes or no? Do you agree with that verdict or do you not agree with that verdict?
"(No response.)
"the court: Miss Hallums, it is necessary for you to respond to that question. You must tell us either yes or no?
"(No response.)
"the court: Please respond?
"(No response.)
"the court: Please respond, Miss Hallums?
"(No response.)
"the court: Miss Hallums, we cannot continue until we get a response from you?
"(No response.)
"the court: Respond either yes or no?
"(No response.)
"the court: What is your response please?
"(No response.)
"the court: Is that your verdict, yes or no?
"(No response.)
"the court: Now, Miss Hallums, it’s obvious that you’re very emotional about this and that you are taking your job as *495 a juror seriously. We understand that. But you have indicated your verdict in the jury room and it is necessary for us to confirm it here if, in fact, that was your verdict. And therefore you are being asked whether that, in fact, is your verdict, yes or no? Please make a response to my question?
"juror number six: Yes.
"the court: What was the response?
"court reporter: Yes.
"[defense counsel]: Judge, I didn’t hear it and earlier I saw her indicating her head no.
"the court: Is your response, yes? The juror — the Reporter says that the juror responded yes.
"[defense counsel]: Judge, just prior to that I saw her shaking her head no so I’d like to hear it.
"the court: Continue polling the jury.”
This verdict did not meet the applicable standard for obtaining a criminal conviction (see, People v Garvin, 90 AD2d 682 ).
Given the equivocal nature of the elicited response, the court’s repeated demands for an open court "yes” or "no” answer, over defense counsel’s requests for a sidebar, were unduly coercive, presenting an unacceptable risk that the juror did not render an independent verdict but instead merely acquiesced to the verdict announced by the foreperson (People v Pickett, 61 NY2d 773, 775 ; see also, Sharrow v Dick Corp., 86 NY2d 54, 58 [" 'No response’ ” by juror to questions on verdict sheet raised legitimate question as to juror’s participation in deliberative process]; cf., People v Cain, 151 AD2d 591 , revd on other grounds 76 NY2d 119 [questioning proper where not compelling a "yes” or "no” answer]; United States v Lawrence, 618 F2d 986 [open court inquiry proper where juror was unable to declare "guilty” or "not guilty” because of religious convictions, and inquiry revealed no doubt of juror’s conclusion that the government proved its case beyond a reasonable doubt]).
Contrary to the majority’s analysis, Pickett is not distinguishable on the basis of the Pickett juror’s affirmative statement that the verdict was rendered under duress. The instant juror exhibited duress through her hesitancy, her inaudible response and her immediate physical illness (see, Sharrow v Dick Corp., supra, at 61-62). Since her unqualified agreement was called into question by the poll, it was incumbent upon the trial court to take further action to confirm the propriety of the verdict as rendered.
The majority relies upon a portion of CPL 310.80, which provides that only upon a negative declaration by any juror *496 must the entire panel be sent back to resume its deliberations. Since the instant juror did not make a negative declaration, the majority determines that no further action was warranted. This is an oversimplified application of the statutory section. Plainly, where a negative declaration is made, further deliberation is required, and where complete unanimity is expressed, the jury may be discharged. These facts present a situation between the two extremes, where Pickett (supra) instructs that further inquiry is required to ensure that the verdict is unanimous.
As the Second Circuit observed in Deane v Dunbar (777 F2d 871, 875 [1985]), "A juror’s expression of hesitancy in announcing his verdict may indicate one of at least three possibilities. The juror may mean * * * that he or she had held a view differing from that of the majority of jurors but had abandoned that view to reach unanimity. It may also mean that the juror has not really decided to cast a vote in agreement with the majority sentiment. It may even mean that some untoward influence or coercion has been applied, beyond tolerable arguments of fellow jurors. Compare, Mattox v. United States, 146 U.S. 140 * * * (1892) (improper influence of jury bailiff and newspaper article), and United States v. Pleva, 66 F.2d 529 (2d Cir. 1933) (coercion resulting from illness), with United States v. Grieco, 261 F.2d 414 (2d Cir. 1958) (per curiam) (tolerable persuasion), cert. denied, 359 U.S. 907 .” Given the instant juror’s extreme reluctance to respond, it was incumbent upon the Judge to have acknowledged the potential uncertainty of the verdict, and taken an appropriate remedial action, either: (1) conducting further separate inquiry of this juror as to the source of her hesitance within the bounds of the secrecy of the deliberative process, (2) instructing the jury to resume its deliberations for purposes of avoiding a premature verdict (CPL 310.80; see, Deane v Dunbar, supra), (3) replacing the juror with the defendant’s consent (CPL 270.35), or (4) discharging the jury upon declaration of a mistrial (CPL 310.60, 280.10; People v Pickett, supra, at 775 ).
Since the court did not present this juror, who was obviously emotionally upset and had to be led out of the courtroom, with an opportunity to explain or expound upon the predicament in which she found herself, I would reverse the judgment, as in Pickett , and order a new trial.
*497 Sullivan, J. P., and Ellerin, J., concur with Tom, J.; Rosenberger and Milonas, JJ., dissent in a separate opinion by Rosenberger, J.
Judgment, Supreme Court, Bronx County, rendered November 13, 1995, affirmed.