This opinion is uncorrected and subject to revision before
publication in the New York Reports.
The People &c.,
Lisa Napoli, for appellant.
Diane R. Eisner, for respondent.
This appeal requires us to determine whether the trial
court violated Criminal Procedure Law § 310.70 when it instructed
the jury to render a partial verdict, in which the jury acquitted
defendant of four counts and convicted him of one, refused to
accept said verdict after it was announced in open court, and
then ordered the jury to continue deliberations on all the counts
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We conclude that the trial court violated CPL
According to the People, at approximately 1:00 a.m. on
July 28, 2001, defendant and his brother broke into the thirdfloor apartment shared by three Pakistani immigrants in the Bay
Ridge section of Brooklyn.
Over the next two to three hours,
defendant and his brother terrorized the occupants, bound and
gagged them with duct tape, threatened to shoot them and demanded
money and jewelry.
After taking money and property from the
apartment, and after demanding the keys to the nearby
delicatessen where one of the victims worked, defendant and his
brother left the apartment.
The victims then freed themselves
and called the police, telling them to go to the delicatessen.
little while later, the police found defendant and his brother in
a car near the delicatessen and arrested them.
defendant's jury trial commenced.1
On April 7, 2003, after the presentation of evidence at
defendant’s jury trial, and after the jury instructions were
given, the trial court submitted the following eleven counts to
first-degree robbery (armed with a deadly weapon)
(three counts); second-degree criminal possession of a weapon;
third-degree criminal possession of a weapon; first-degree
burglary (apartment); third-degree burglary (delicatessen); petit
Prior to trial, defendant's brother pled guilty to one
count of first-degree robbery, and was sentenced to a determinate
prison term of seven years.
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larceny; and second-degree unlawful imprisonment (three counts).
The trial court informed counsel on April 10, 2003 that it had
received a note from the jury informing the court that it had
reached a verdict on some counts but was at a standstill as to
The trial court determined it would bring the jury in,
"take" the partial verdict if the jury had in fact reached one
and "then see where we go from there."
On the record (in open
court), the foreperson of the jury announced the jury's partial
verdict, acquitting defendant of the three unlawful imprisonment
counts and second-degree weapons possession, but convicting him
of petit larceny.
Over defendant's objection, the trial court
refused to accept the partial verdict and ordered the jury to
resume deliberations on the entire case (all eleven counts).
On the following day–-April 11, 2003–-the jury
convicted defendant of ten of the eleven counts submitted to the
jury, acquitting him only of second-degree weapons possession.
Defendant was sentenced, as a persistent violent felony offender,
to three consecutive prison terms of 25 years-to-life for the
robbery counts, to run concurrently with concurrent prison terms
of 25 years-to-life for third-degree weapons possession and the
burglary counts, and one year for the petit larceny and unlawful
The Appellate Division modified the
judgment, on the law and as a matter of discretion in the
interest of justice, with respect to the sentences imposed (60
AD3d 788 [2d Dept 2009]).
As relevant here, the Appellate
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Division held that "[t]he trial court did not improvidently
exercise its discretion in refusing to accept a partial verdict"
(id. at 789).
A Judge of this Court granted defendant leave to
appeal (12 NY3d 920 ), and we now modify the order of the
Under the plain language of CPL 310.70, a trial court
is required to follow one of two courses when a deliberating jury
declares that it has reached a verdict as to some, but not all,
of the counts submitted to it, and there is a reasonable
possibility of ultimate agreement on any of the unresolved
The court may either (1) order the jury to render a
partial verdict and continue deliberating "upon the remainder" of
the counts submitted to the jury (CPL 310.70 [b][i]), or (2)
"refuse to accept a partial verdict" and order the jury to
continue its deliberations "upon the entire case" (CPL 310.70
Here, after the jury informed the court that it had
reached a partial verdict as to five of the eleven counts
submitted to it, the trial court ordered the jury to render its
partial verdict, which the foreperson announced in open court.
The trial court then refused to accept the partial verdict on the
five counts as requested by the defense, and ordered the jury to
resume deliberations on the entire case.
In so doing, the trial
court took the pulse of the jury deliberations and then ordered
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This was error.2
By refusing to accept the partial verdict after it was
announced, the trial court signaled to the jury that the partial
verdict was incorrect.
What's more, given the full verdict
rendered the day after the partial verdict was announced, in
which the jury convicted defendant of counts it had acquitted
defendant of the day before, one could reasonably conclude that
the trial court's actions had a coercive effect on the jury (and
its deliberations after the partial verdict was announced).
short, the trial court not only violated the partial verdict
procedure under CPL 310.70, it impinged on defendant's right to a
trial by jury.
The right to a trial by jury in criminal cases is
"fundamental to the American scheme of justice" and essential to
a fair trial (Duncan v Louisiana, 391 US 145, 148-149, 154
At the heart of this right is the need to ensure that
jury deliberations are conducted in secret, and not influenced or
intruded upon by outside factors (see People v Rodriguez, 71 NY2d
214, 218 n 1 ; People v Bouton, 50 NY2d 130, 138 ;
A trial court may reject an announced verdict only under
two circumstances: (1) where it is legally defective, e.g.,
where the jury failed to follow the court's instructions (see
People v Salemmo, 38 NY2d 357, 360-361 ), or (2) where it
is repugnant (see People v Tucker, 55 NY2d 1, 7-8 ; People
v Trappier, 87 NY2d 55, 58  ["A verdict is inconsistent or
repugnant . . . where the defendant is convicted of an offense
containing an essential element that the jury has found the
defendant did not commit."]). Here, the announced partial
verdict was neither legally defective nor repugnant.
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United States v Thomas, 116 F3d 606, 618 [2d Cir 1997]).
This case makes clear why the secrecy and independence
of jury deliberations must be vigilantly protected.
If the trial
court finds out where the jury stands on a particular count and
then orders the jury to deliberate further on that count, the
trial court effectively, even though inadvertently, inserts
itself into the jury's deliberations.
The mere possibility of a
trial court exerting such influence over the jury is improper and
at odds with the strong public policy that jury deliberations
should be confidential and free from outside interference, and
has the potential to render a defendant's right to a trial by
We have considered defendant's remaining arguments and
they are either academic or without merit.
Accordingly, the order of the Appellate Division should
be modified by dismissing the three counts of unlawful
imprisonment in the second degree and remitting to Supreme Court
for a new trial on the counts of the indictment charging robbery
in the first degree, criminal possession of a weapon in the third
degree, burglary in the first degree and burglary in the third
degree, and for resentencing on defendant's conviction of petit
larceny, and, as so modified, affirmed.
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Order modified by dismissing the three counts of unlawful
imprisonment in the second degree and remitting to Supreme Court,
Kings County, for a new trial on the counts of the indictment
charging robbery in the first degree, criminal possession of a
weapon in the third degree, burglary in the first degree and
burglary in the third degree, and for resentencing on defendant's
conviction of petit larceny, and, as so modified, affirmed.
Opinion by Judge Jones. Chief Judge Lippman and Judges Ciparick,
Graffeo, Read, Smith and Pigott concur.
Decided May 6, 2010
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