The opinion
Tom, J.P.,
dissents in a memorandum as follows: Because the trial court failed to conduct a tactful and probing inquiry to ascertain whether a juror was capable of rendering an impartial verdict and because the court, in further instructing the jury, failed to emphasize the need to arrive at a verdict without requiring any single juror to surrender her conscientious belief, the record does not afford an adequate basis for this Court to conclude that the verdict was not the result of coercion, and a new trial is required.
On the morning of the fourth day of deliberations, after the alternate jurors had been discharged, the court received a message from juror number 1 stating that she wanted to be excused. The court conducted an inquiry into the juror’s concerns in the courtroom in the presence of counsel and defendant (s ee People v Buford, 69 NY2d 290, 299 [1987]). The juror was able to say only, “I’m not sure that I’m able to separate my emotions from the case so I just wanted to — ,” when the court cut her off:
“THE COURT: Well, I mean, you have to do that. You have to separate your emotions. You’re a member of a jury of 12 people. As I said, this has to be decided. And you promised you will be able to do so. It has to be decided on the evidence and the law as you find it to be. And I know it’s difficult to be a juror but that’s you know — I mean we’ve all put a lot of time, a lot of effort, and there’s no way we can go forward without you.
“THE JUROR: Well, I do understand. I feel — I thought I would be able to but it is my duty to let you know that I haven’t been able to.
“THE COURT: Well, I mean, it’s something. We can’t go forward and there’s no way we can excuse you. We can’t go forward without you, we just can’t.
“THE JUROR: So is it just that I make a decision based on my emotions just to get it out of the way?”
*613 The court responded that it would not ask the juror to make a decision based on her emotions, but asked that she attempt to put aside her emotions and make a decision. The juror responded, “I don’t feel like I’m able to. I mean I’ve been trying extremely hard and I don’t feel that I can without — I can’t separate it I thought that I could.” The court again directed the juror “to decide the facts . . . and apply the law as I have said it to you.” To which the juror replied, “But that’s what I have been trying to do and that’s why I’ve come to [the] conclusion that I can’t. I don’t have it in me.” The court again asked the juror to “try very hard” to continue engaging in deliberations with her fellow jurors. Again the juror responded, “I can’t, I can’t separate it anymore. Don’t know, I don’t know. I don’t have the capabilities to. I’ve been trying and I can’t. That’s what I’m trying to tell you.” Ignoring the juror’s plea, the court once again told the juror to “go back over it with your fellow jurors and to try because that’s your job,” the following colloquy ensued:
“THE JUROR: I feel like I am. And I don’t feel like I can do that that’s what I feel. Like it’s not like I came to this conclusion, I stepped in one minute and I came right back out. I feel like I’ve come and giving [sic] up my conscience. I did take an oath to do a certain job that I can’t do it I can’t.
“THE COURT: But you can decide what the facts are can’t you?
“THE JUROR: Yes.
“THE COURT: And once you’ve done that, once you’ve decided the facts, then you have to apply the law as I [gave] it to you that you have to do.”
When the juror said, “[A] 11 right, I mean I’m telling” — the court abruptly cut short the juror’s further attempt to explain her feelings with another instruction to “come to a decision based on the law and the facts,” at which point defense counsel moved for a mistrial on the ground that “this juror is no longer qualified to be a juror in this case.” The court immediately denied the application. When the jury returned to the courtroom, the court asked them collectively to apply the law to the facts and to continue deliberations “without fear or favor or sympathy or bias, okay.” Juror number 1 responded, “I have no choice,” and the court stated, “That’s true, okay. Thank you very much.”
After the jury left the courtroom to resume deliberations, the court expressed its belief to counsel that “the juror, at this stage, is the sole hold on [sic] in this case . . . but for whatever reason up to now feels, notwithstanding what she had sworn to *614 do, that she can’t say guilty.” The court urged defendant to accept an offer to enter a plea to manslaughter in the first degree and recessed the case for lunch to allow him to consider it. But when the jurors returned only a short while later at 2:30 p.m., they announced that they had reached a verdict, finding defendant guilty of first-degree manslaughter.
A defendant has the right to removal of a juror who is “grossly unqualified” to continue serving (CPL 270.35 [1]; People v Rodriguez, 71 NY2d 214, 218-219 [1988]). Disqualification requires a “tactful and probing inquiry” that convinces the court, based on the juror’s unequivocal responses, of the “gross disqualification to serve impartially” (People v Anderson, 70 NY2d 729, 730 [1987]).
In the matter before us, the trial court’s inquiry was neither particularly tactful nor probing. By cutting off the juror’s attempt to explain the nature of her emotional conflict, the court neglected to investigate how her emotions might — or might not — interfere with her ability to render an impartial verdict (id.). Having rendered equivocal, by its interruptions, the juror’s responses, there was little for the trial court to assess, resulting in an inadequate record for this Court to review. Like a trial court, we “may not speculate as to the possible partiality of a sworn juror based on equivocal responses” (id.). Furthermore, it is clear that the trial court failed to ascertain that the juror would not render a determination “based on my emotions just to get it out of the way” or by “giving up my conscience” or because “I have no choice.” Finally, the court failed “to stress the importance of reaching a verdict without requiring that any juror surrender a conscientious belief” (People v Nunez, 256 AD2d 192, 193 [1st Dept 1998], lv denied 93 NY2d 975 [1999], citing People v Ali, 65 AD2d 513 [1st Dept 1978], affd 47 NY2d 920 [1979]).
Moreover, a review of the record makes clear that, like the court in Rodriguez , the trial court’s predominant concern was not determining whether the juror was “grossly unqualified” but was to avoid declaring a mistrial at all costs. In Rodriguez , the trial court expressly informed the juror that her discharge would result in a mistrial, that there were no more alternates, and remarked that “after almost two days of deliberating all this goes down the drain” ( 71 NY2d at 217 ). Here, the court, faced with the same concern, repeatedly pressured the juror and ignored her concerns, stating that she had to continue, that “there’s no way we can excuse you,” confirming that she had “no choice,” and noting the time and effort put into the case and how the defendant, the prosecution, and the other jurors had a “real interest in [the case] being resolved.”
*615 In addition, unlike the jurors in People v Buford and its companion case, People v Smitherman, who were concerned about relatively insignificant matters “unlikely to affect their deliberations” (Rodriguez, 71 NY2d at 219 ), the record here does not allow for such a conclusion. Indeed, while the trial court did not sufficiently probe the juror’s emotional conflict, it is clear that, although the juror tried to separate her emotions for three days of deliberations, she felt compelled to advise the court that she was unable “to separate her emotions from the case” and could not do the job she took an oath to do without “giving up [her] conscience.”
Nor did the juror here claim an ability to render an impartial verdict or state that she “could separate her own emotions and experience from the facts and the evidence in this case” (cf. People v Dacus, 215 AD2d 578, 579 [2d Dept 1995], lv denied 86 NY2d 793 [1995]).
Contrary to the majority’s implication, it is not necessary for the juror to express concern for her personal safety or about feeling coerced by her fellow jurors in order for her to be found “grossly unqualified.” Significantly, the juror stated that she could not render an impartial verdict, could not separate her emotions despite her best efforts, and did not want to make a decision “based on my emotions just to get it out of the way.”
While defense counsel may not have objected to any of the statements the trial court made to the juror and did not propose further questions for the juror, it is ultimately the trial court’s responsibility to conduct a sufficient inquiry to ensure the juror can serve impartially and without surrendering her conscientious belief. Nonetheless, after the court ended the colloquy with the jurors, counsel immediately moved for a mistrial on the ground she was no longer qualified to be a juror in this case.
The court’s failure to conduct a sufficient inquiry is no better than a refusal to make any inquiry whatsoever. Indeed, in either case, the issue is “not whether the juror ultimately would or should have been discharged” (People v McClenton, 213 AD2d 1, 7 [1st Dept 1995], lv granted 86 NY2d 848 [1995], appeal dismissed 88 NY2d 872 [1996]). Rather, it is the failure of the court to fully explore whether the juror was unwilling or unable to separate her emotions from her task as a juror, and whether she would render a decision based on her emotions for expedience sake. Ultimately, this failure means we can not be certain that defendant was fairly convicted because it will never be known whether the conviction was obtained under “questionable circumstances which could have been easily clari *616 fied had appropriate inquiry been timely made” (id. at 6; see also People v Ventura, 113 AD3d 443, 446 [1st Dept 2014], lv denied 22 NY3d 1203 [2014]).
The improper discharge of a sworn juror violates the right of a defendant to be judged by a jury in whose selection he has participated (Rodriguez, 71 NY2d at 218 ). By the same token, it is equally improper and prejudicial for a court to “attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict” (People v Pagan, 45 NY2d 725, 726 [1978], quoting People v Faber, 199 NY 256, 259 [1910]). The record here clearly supports the fact that the court coerced the juror, who may have surrendered her conscientious belief, to render a verdict. “The verdict of a juror should be free and untrammeled” (Fa ber, 199 NY at 259 ) and here, as in Faber , the court’s instructions “may have resulted in an agreement by the jury where an agreement would not have been obtained if each juryman in obedience to his right and duty had decided the case upon his own opinion of the evidence and upon his own judgment” {id.).
Accordingly, the judgment of conviction should be reversed and the matter remanded for a new trial.