| People v Jimenez |
| 2012 NY Slip Op 08656 [101 AD3d 513] |
| December 13, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamesJimenez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J., at first jury trial; JillKonviser, J., at second jury trial and sentencing), rendered September 7, 2010, convictingdefendant of burglary in the second degree and two counts of criminal trespass in the seconddegree, and sentencing him to an aggregate term of four years, unanimously affirmed.
At the first trial, the court correctly declined to "accept" a purported verdict of guilty on twocounts of criminal trespass. The court had submitted three counts of second-degree burglary withthree corresponding counts of the lesser included offense of second-degree criminal trespass. Asto one of these pairs of counts, the jury reached a proper verdict, acquitting defendant of burglaryand convicting him of trespass, and the court accepted that verdict. The jury announced that ithad not reached unanimous verdicts as to the two other burglary counts. However, on the verdictsheet the guilty boxes for the two corresponding trespass counts contained check marks. Thecourt rejected defendant's request that it take the verdict according to the sheet (which wouldhave amounted to acquittals of the greater burglary charges).
The court did not err in its handling of the situation. In the first place, "[m]arks on verdictsheets are not verdicts" (Matter ofSuarez v Byrne, 10 NY3d 523, 528 n 3 [2008]). Therefore, with respect to the counts atissue there was nothing before the court but a statement that the jury had not reached a verdict.
In any event, trespass convictions not preceded by corresponding burglary acquittals wouldhave been defective (see CPL 310.50) because they would have violated the court'sinstruction to consider the lesser offenses only if the jury found the defendant not guilty of thecorresponding greater offenses (see People v Boettcher, 69 NY2d 174, 182-183 [1987]).Furthermore, guilty verdicts on the trespass counts without any verdicts on the burglary countswould have demonstrated the jury's confusion as to the order in which to proceed. Accordingly,the court did not err when it repeated its acquit-first instruction and directed the jury to resume itsdeliberations on the counts upon which it had not reached a verdict.
There was nothing coercive about this course of action. We note that the jury was still unableto reach a verdict on the counts at issue, resulting in a mistrial on those counts, followed by aretrial where defendant was convicted of one count of burglary and one additional count of [*2]trespass.
During jury deliberations at the second trial, the court properly exercised its discretion inrefusing to disqualify a juror who had read, and mentioned to some jurors, a portion of a newsarticle that described the case. Following probing and tactful individual inquiries by the court,each juror unequivocally assured the court that he or she could decide the case based solely onthe evidence presented in the courtroom and could render a fair and impartial verdict (see e.g.People v Costello, 104 AD2d 947 [2d Dept 1984]). The circumstances did not warrant afinding that the juror who read the article was grossly unqualified to serve. Moreover, since itwas no longer possible to substitute an alternate, removal of the juror would have necessitatedthe drastic remedy of a mistrial followed by yet another trial. Concur—Tom, J.P., Sweeny,Moskowitz, Renwick and Clark, JJ.