| People v Cridelle |
| 2013 NY Slip Op 08470 [112 AD3d 1141] |
| December 19, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRichard Cridelle, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered July 15, 2011, upon a verdict convicting defendant of the crimesof rape in the first degree and unlawful imprisonment in the second degree.
Defendant was charged in a three-count indictment with rape in the first degree,unlawful imprisonment in the second degree and assault in the third degree. The chargesstemmed from a sexual encounter that occurred between the victim and defendant duringthe early morning hours of May 27, 2010. Defendant and the victim each admitted thatthey had exchanged drugs for sex in the past, but their accounts of the incident inquestion varied dramatically. According to defendant, he approached the victim in thearea of Albany and Backus Streets in the City of Schenectady, Schenectady County,inquired as to whether she was "working" and indicated that he "want[ed] to get laid,"whereupon the victim agreed to have sexual intercourse with him in exchange for "[a] 40of crack." The victim disputed this version of the events, contending instead that sheagreed to "[h]ang out[,] [d]rink[,] [p]robably smoke" and perform oral sex upondefendant—a man she knew as "Green Eyes"—in exchange for a quantity ofcrack cocaine. After driving to a local convenience store to purchase "some Pepsi, bluntwraps . . . [,] a box of condoms" and some Starbursts, defendant and thevictim drove to defendant's apartment. While there, defendant and the victim eachconsumed alcohol, defendant smoked marihuana and the victim smoked crack. After aperiod of time, the victim showered, [*2]following whichdefendant and the victim had sexual intercourse. Defendant contended that the entireencounter was consensual, while the victim testified that she showered only afterdefendant started slapping her around and that defendant thereafter raped her. Followingthis incident, defendant called a cab for the victim and, as the victim was leaving thepremises, defendant purportedly stated, "Bet you won't get back in my car."
At the conclusion of the ensuing jury trial, County Court dismissed the assault countand the jury thereafter found defendant guilty of rape in the first degree and unlawfulimprisonment in the second degree. Defendant's subsequent motion to set aside theverdict due to alleged errors in the jury's deliberations was denied, and defendantthereafter was sentenced, as second felony offender, to time served on the unlawfulimprisonment conviction and 20 years in prison—followed by 10 years ofpostrelease supervision—on the rape conviction. This appeal by defendant ensued.
Of the various arguments raised by defendant upon appeal, only three warrantdiscussion. Initially, we reject defendant's contention that the jury's verdict was againstthe weight of the evidence. As noted previously, there is no dispute that defendant andthe victim engaged in sexual intercourse on the morning in question; the primaryquestion for the jury's consideration was whether such encounter was by "forciblecompulsion" (Penal Law § 130.35 [1]). "Where, as here, [an] acquittal[ ] wouldnot have been unreasonable, this Court must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Beliard, 101 AD3d 1236, 1238 [2012], lvdenied 20 NY3d 1096 [2013] [internal quotation marks and citations omitted]).
The victim's and defendant's contradictory testimony regarding the nature of theirencounter presented the jury with "a classic credibility issue" (People v Allen, 13 AD3d892, 894 [2004], lv denied 4 NY3d 883 [2005] [internal quotation marksand citation omitted]), and the jury plainly elected to credit the victim's account of theincident. In this regard, our review of the record reveals that the victim's testimony wasneither "contradicted by any compelling evidence" nor "so unworthy of belief as to beincredible as a matter of law" (People v Fernandez, 106 AD3d 1281, 1285 [2013][internal quotation marks and citations omitted]; accord People v Allen, 13AD3d at 894). According due deference to the jury's "opportunity to view the witnesses,hear the testimony and observe demeanor" (People v Tompkins, 107 AD3d 1037, 1038 [2013][internal quotation marks and citation omitted]; see People v Beliard, 101 AD3dat 1239), we cannot say that the jury failed to accord the evidence the weight it deserved.
To the extent that defendant's challenge regarding the admission of certain testimonyunder the prompt outcry exception to the hearsay rule has been preserved for our review,we find it to be lacking in merit. "Under the prompt outcry rule, evidence that a victim ofsexual assault promptly complained about the incident is admissible to corroborate theallegation that an assault took place" (People v Lapi, 105 AD3d 1084, 1087 [2013], lvdenied 21 NY3d 1043 [2013] [internal quotation marks and citations omitted];see People v McDaniel, 81 NY2d 10, 16-17 [1993]; Matter of Gregory AA., 20AD3d 726, 727 [2005]). Although "promptness is a relative concept dependent onthe facts" (People v McDaniel, 81 NY2d at 17), courts traditionally have requiredthe complaint to be made "at the first suitable opportunity" (People v O'Sullivan,104 NY 481, 486 [1887]; accord People v Rosario, 17 NY3d 501, 512 [2011];People v McDaniel, 81 NY2d at 17; People v Pruchnicki, 74 AD3d 1820, 1821 [2010], lvdenied 15 NY3d 855 [2010]). As all of the challenged disclosures by the victim weremade within hours of the underlying [*3]incident, we aresatisfied that such complaints were timely (see People v Shepherd, 83 AD3d 1298, 1300 [2011], lvdenied 17 NY3d 809 [2011]; compare People v Rosario, 17 NY3d at 513;People v Allen, 13 AD3d at 894) and, hence, the admission of such testimony didnot constitute improper bolstering.[FN1]
We do, however, find merit to defendant's claim that a new trial is warranted basedupon errors that occurred during the jury's deliberations. The jury commenced itsdeliberations at 12:27 p.m. on April 5, 2011 and, insofar as is relevant here, CountyCourt received a note from the jury at 3:00 p.m. requesting that juror No. 4 be dismissed.Juror No. 4 then was brought into the courtroom and questioned regarding her statedinability to render a decision. Based upon her responses to the questions posed by CountyCourt and counsel, as well as her observed demeanor, County Court concluded that jurorNo. 4 was "grossly unqualified to serve."[FN2] At 4:05 p.m., juror No. 4, the remaining 11 jurors and the sole remaining alternate werebrought into the courtroom, dismissed for the day and admonished, "Don't startdeliberating until I get you all [back] here [tomorrow]." Although County Court advisedthe parties that it would revisit the issue in the morning, the court expressed itsinclination to discharge juror No. 4 as it did not believe that this juror could give eitherthe People or defendant "a fair trial."
When court reconvened the following morning, and before the issue regarding jurorNo. 4 could be resolved, County Court received a note from the jury at 9:11 a.m. raisingan issue with respect to juror No. 12—specifically, an allegation that this jurorfailed to disclose during voir dire that he previously had been accused of a sex crime,prompting the other jurors to question whether juror No. 12 could be "unbiased." WhenCounty Court inquired as to how the issue concerning juror No. 12 came to light, the juryforeperson responded, "He told us all in the jury room." County Court then stated, "Andyou've had discussions with the other jurors in his absence or not?", to which theforeperson replied, "Yes." When pressed on this issue, the foreperson indicated that thedisclosure had been made the previous day after the jury commenced itsdeliberations—specifically, that juror No. 12 had made his disclosure while thejury was "talking about the facts" of this case. Upon further questioning, the forepersoncould not recall how the individual jurors had responded to this event, noting that "it hadgotten a little heated in [the jury room]," but indicated that the jurors "thought [juror No.12's disclosure] should be brought to everyone's attention."
While debating how to respond to the issue concerning juror No. 12, juror No. 4again was brought into the courtroom and, in response to questioning by County Court,indicated that she was "[n]ot well" and that she would "rather not do it," i.e., she wouldprefer not to continue deliberations. After giving what the parties have now characterizedas a modified Allen charge, juror No. 4 indicated that she could continue and,over defendant's objection, County Court [*4]directedthat juror No. 4 remain on the jury. Mindful of the new issue concerning juror No. 12, hisdisclosure and the ensuing "heated" discussion among the members of the jury, CountyCourt asked juror No. 4, "Now, were there any other incidents in the jury room aboutjurors in prior incidents that came up while you were in there?", to which juror No. 4replied, "No."
As juror No. 4 waited in a hallway, juror No. 12 was brought into the courtroom andquestioned regarding the substance of the jury's note. The juror denied that he had beenaccused of a sexual act, but acknowledged that he had discussed with the jury an incidentwherein his sister-in-law had "fabricat[ed]" a sexual relationship with him—thegist of the discussion being "that people can say something about you that is notnecessarily true." Juror No. 12 then returned to the jury room, followed a short time laterby juror No. 4.
At 10:04 a.m., all 12 jurors plus the remaining alternate were returned to thecourtroom, at which time County Court released the alternate juror. Without furtherinquiry, and after only generally reminding the individual jurors of their obligation tokeep an open mind and listen to one another, County Court directed the jury to "continue[its] deliberations." After the jury retired at 10:06 a.m., defense counsel reiterated hispreviously expressed concerns that the jury had discussed juror No. 12's disclosureoutside of his presence and requested that County Court conduct a further inquiry in thisregard. County Court denied counsel's request to pursue this matter and, at 11:21 a.m.,the jury returned with a verdict. Before the jury was brought into the courtroom, defensecounsel again requested that County Court question juror Nos. 4 and 12 and seek furtherclarification as to the various discussions that had occurred in the jury room. CountyCourt again denied defendant's request and proceeded to "take the verdict."
Initially, we agree with defendant that County Court erred in failing to dischargejuror No. 4. "If at any time after the trial jury has been sworn and before the rendition ofits verdict, . . . . the court finds, from facts unknown at the time of theselection of the jury, that a juror is grossly unqualified to serve in the case. . . , the court must discharge such juror" (CPL 270.35 [1]; see People vHarris, 99 NY2d 202, 212 [2002]; People v Reichel, 110 AD3d 1356, 1358 [2013]). "A jurorwill be deemed to be grossly unqualified to serve only when, after conduct[ing] aprobing, tactful inquiry into the specific circumstances, it becomes obvious that aparticular juror possesses a state of mind which would prevent the rendering of animpartial verdict" (People v Reichel, 110 AD3d at 1358 [internal quotationmarks and citations omitted]; see People v Buford, 69 NY2d 290, 298-299[1987]; People v Guy, 93AD3d 877, 877-878 [2012], lv denied 19 NY3d 961 [2012]; see also People v Brock, 107AD3d 1025, 1028 [2013], lv denied 21 NY3d 1072 [2013]). Although thetrial court traditionally is accorded "great deference in deciding whether a juror is grosslyunqualified" (People v Guy, 93 AD3d at 878 [internal quotation marks andcitation omitted]), inasmuch as juror No. 4 repeatedly expressed her inability to render adecision one way or the other, and County Court expressly found that she was bothgrossly unqualified to serve and unable to afford either the People or defendant a fairtrial, County Court erred in failing to discharge juror No. 4 on the afternoon of April 5,2011. As we are of the view that juror No. 4 should have been discharged on that date,we need not address the propriety of the modified Allen charge that was giventhe following day in an apparent effort to rehabilitate this juror.
Moreover, even assuming that we discerned no impropriety with respect to juror No.4's continued service on the jury, we nonetheless would be compelled to reversedefendant's conviction and order a new trial, as it is readily apparent from the record thatthe jury deliberated—on at least one occasion—with fewer than 12 memberspresent. CPL 310.10 (1) provides, in [*5]relevant part,that "[f]ollowing the court's charge, . . . the jury must retire to deliberateupon its verdict in a place outside the courtroom . . . and must, except asotherwise provided in [CPL 310.10 (2)], be continuously kept together under thesupervision of a court officer." Consistent with the provisions of CPL 310.10 (2), "[a]tany time after the jury has been charged or commenced its deliberations, and after noticeto the parties and affording such parties an opportunity to be heard on the record outsideof the presence of the jury, the court may declare the deliberations to be in recess andmay thereupon direct the jury to suspend its deliberations and to separate for a reasonableperiod of time to be specified by the court." Additionally, "[b]efore each recess, the courtmust . . . direct [the jury] not to resume its deliberations until all twelvejurors have reassembled in the designated place at the termination of the declared recess."
To be sure, a "brief, momentary separation" (People v Kelly, 16 NY3d 803, 804 [2011]) among jurors ispermissible in order to, for example, allow the court to question a juror privately (seePeople v Kelly, 16 NY3d at 804; People v Jackson, 103 AD3d 1245, 1246 [2013], lvdenied 21 NY3d 944 [2013]) or permit the jurors to take a smoking break (seePeople v Manzo, 233 AD2d 529, 529-530 [1996]). Here, however, juror No. 4 wasabsent from the jury room for slightly more than one hour on the afternoon of April 5,2011 and, as evidenced by (1) the foreperson's recitation of the manner in which the issueregarding juror No. 12 arose and the ensuing "heated" discussion among the jurors, and(2) juror No. 4's professed lack of knowledge of this issue or the resulting discussion, itis readily apparent that the jurors continued their deliberations during this period of time(compare People v Speed, 226 AD2d 1090, 1091 [1996], lv denied 88NY2d 969 [1996]). Any assertion that the jury's "discussion" of juror No. 12's disclosuredid not arise in the context of the jury's "deliberations" is belied by the record, whichreflects that this issue arose while the jurors "were talking about the facts" of this caseand their obligation "to make a determination . . . based on what [evidence]was presented." Indeed, it was in the course of that discussion that juror No. 12 tried "toexplain . . . that people can say something about you that is not necessarilytrue," noting the corresponding need "to decide on why they're saying it" and providingan example from his own life. As the crux of this discussion—of which juror No.4 professed no knowledge—plainly implicated credibility issues and, arguably, awitness's motivation to testify in a particular manner, it cannot be deemed anything otherthan deliberations among what clearly was less than 12 members of the jury.[FN3] Accordingly, defendant is entitled to a new trial. In light of this decision, we need notaddress the remaining arguments raised by defendant on appeal.
Rose, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County [*6]Court ofSchenectady County for a new trial.
Footnote 1: To the extent that thetestimony offered by the investigating detectives and the sexual assault nurse examinerdisclosed certain details of the crime, we find the admission of such testimony to beharmless.
Footnote 2: Juror No. 4 variouslystated, "I don't feel I [can] make a decision either way" and "I cannot make a decision,"prompting County Court to observe, "she doesn't have it in her to make a judgment."
Footnote 3: Moreover, the recordsuggests that the jury may have been deliberating in the absence of juror No. 12 as well.As noted previously, when the jury foreperson initially brought the concerns regardingjuror No. 12 to County Court's attention, County Court inquired, "And you've haddiscussions with the other jurors in [juror No. 12's] absence or not?", to which theforeperson replied, "Yes."