| People v Morgan |
| 2015 NY Slip Op 00209 [124 AD3d 406] |
| January 6, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Patrick Morgan, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Nicholas J. Iacovetta, J.), renderedFebruary 7, 2012, convicting defendant, after a jury trial, of manslaughter in the firstdegree and criminal possession of a weapon in the second degree, and sentencing him toan aggregate term of 18 years, affirmed.
After the jury purported to return a verdict but a poll revealed that two jurors did notagree, the court properly instructed the jury to resume deliberation and attempt to reach aunanimous verdict. Contrary to defendant's argument, defendant was not deprived of dueprocess by the absence from this instruction of language reminding the jurors not tosurrender their conscientiously held beliefs. The court had so instructed the jury in acharge that was given, with defendant's consent, two hours earlier. "Jurors are presumedto follow the legal instructions they are given" (People v Baker, 14 NY3d 266, 274 [2010]). Therefore, thecourt's charge in response to the defective verdict was appropriate under thecircumstances (see People v Ford, 78 NY2d 878 [1991]; People v Jolly,282 AD2d 474, 474-475 [2d Dept 2001], lv denied 96 NY2d 863 [2001]).Contrary to defendant's argument, the charge did not apply improper pressure on the twojurors who did not agree with the verdict or criticize those particular jurors (seePeople v Pagan, 45 NY2d 725 [1978]). Moreover, defense counsel did not actuallyrequest any particular instruction. Counsel merely conjectured that the two jurors whoinitially disagreed with the verdict might be led to believe that the case could not beresolved unless they submitted to the will of the remaining jurors. We note that the jurydid not announce the verdict until a full day after the disputed charge was givenfollowing the readback of testimony it requested. Accordingly, the record does notsupport the dissent's position that the court's deadlock charge was coercive.
Defendant's contention that he was deprived of a fair trial when the court denied thejury's request for a readback of defense counsel's summation is unpreserved and waived,since defense counsel expressly agreed to the court's proposal to deny the jury's request.We decline to review this claim in the interest of justice. As an alternative holding, wereject it on the merits, since "declining to read back a summation is not an abuse ofdiscretion" (People v Clariot, 188 AD2d 281, 282 [1st Dept 1992], lv denied81 NY2d 838 [1993]; see also People v Velasco, 77 NY2d 469, 474[1991]).
Defendant's ineffective assistance of counsel claim relating to the summationreadback issue is unreviewable on direct appeal (People v Love, 57 NY2d 998[1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits ofthe ineffectiveness claim may not be addressed on appeal. In the alternative, to the extentthe existing record permits review, we find that defendant received effective assistanceunder the state and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).Concur—Sweeny, J.P., DeGrasse, Feinman and Gische, JJ.
Manzanet-Daniels, J., dissents in part in a memorandum as follows: Because Ibelieve that the deadlock charge in this case was unduly coercive, I would reverse theconviction and remand for a new trial.
Supplemental charges addressing a jury's declaration of deadlock must not coercejurors "with untoward pressure to reach an agreement" (People v Aponte, 2 NY3d304, 308 [2004] [internal quotation marks omitted]). A court aware of the nature ofthe jury's split must exercise particular care in delivering a deadlock charge (seeSmalls v Batista, 191 F3d 272, 280 [2d Cir 1999]). Jurors may not be "impermissiblysingled out for noncompliance with the majority" (People v Pagan, 45 NY2d 725,727 [1978]; cf. People vKisoon, 23 AD3d 18, 23-24 [2d Dept 2005] [court's decision not to read jury'snote verbatim but to summarize it in such a manner so as not to, inter alia, reveal thejury's 10-2 vote for conviction, constituted prejudicial error requiring a new trial; courtnoted that had counsel been aware that two jurors were holding out for acquittal, hemight have asked the court to include language in its response emphasizing theimportance of jurors not surrendering their conscientiously held views merely for thepurpose of rendering a verdict], affd 8 NY3d 129 [2007]).
The court's initial deadlock charge was balanced, appropriately encouraging thejurors to reach agreement "if that can be done without surrendering individualjudgment." But after the jury revealed that it was split 10-2, the court summarily rejectedthe verdict and directed the jury to resume deliberations in an effort to reach a unanimousverdict, without including cautionary language admonishing them to adhere to theirconscientiously held views. In my view, this was error.
As counsel noted in registering his objection to the charge, the court's instruction leftthe minority jurors with the impression that "the only way that things [would] ever[ ]come[ ] to an end is if they follow to the will of the other ten." The minority jurors verywell may have felt "impermissibly singled out for noncompliance with the majority"(Pagan, 45 NY2d at 727). The lack of "cautionary language may well have leftthe minority juror with the belief that he or she had no other choice but to convince orsurrender" (Smalls, 191 F3d at 280 [absence of language urging jurors not tosurrender their conscientiously held beliefs, following revelation of 11-1 split,constituted reversible error]).
The fact that the jury twice requested a readback of the defense summation onlybolsters the conclusion that the holdout jurors were struggling with the evidence andperhaps attempting to persuade the other jurors of their views before surrendering themfor purposes of returning a verdict. If the holdouts favored the defense, they (as well asothers on the jury) may have perceived the court's denial of the request as a sign ofjudicial disapproval of the defense position. At the same time, the denial of the requestserved to deprive any jurors who were predisposed toward the defense of ammunitionthey might have needed to persuade their fellow jurors.
I would accordingly hold that the court's refusal to include more balanced languagein the charge constituted prejudicial error requiring reversal.