People v. AlbertPeople v. Albert
Judgmеnt, Supreme Court, Bronx County (Frank Diaz, J.), rendered April 29, 1992, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to two concurrent indeterminate terms of 10 years to life and 6 years to life, respectively, affirmed.
On November 14, 1990, shortly before 1:00 a.m., Sean Es-course was confronted on 183rd Street in the Bronx by defendant-appellant James Albert, who was wearing a white jacket, and his co-defendant Stewart Jackson, who was wearing a black jacket. Albert pointed a shiny silver gun at Escourse’s head and demanded his money, while Jackson reachеd into Escourse’s pockets and removed his wallet and money, which included 39 single-dollar bills. Albert and Jackson then fled.
Several minutes later Police Officer Thomas Fitzgerald and Sergeant Robert Rauhofer, while on motor patrol, observed Albert, wearing a white jacket, and Jackson, wearing a black jacket, running down 183rd Street toward them, and looking over their shoulders as they ran. The officers asked Albert and Jackson why they were running, and both men responded "we’ve just been robbed.” As the officers stopped their patrol car and got out to investigate, Albert removed a silver gun from his jacket and threw it under a parked car. Both men were immediately restrained by the officers. Thirty-eight single-dollar bills were later found in Jackson’s possession.
As this was taking place, Mr. Escourse flagged down another police car, and reported to Police Officers Luis Aponte and Brian Martin that he had been robbed at gunpoint just two minutes earlier. After receiving a description of the robbers, Officer Aponte transmitted an alarm for two black
After the jury had been deliberating for approximately 4 Vi hours, the foreperson sent a note to the court which read: "We the members of the jury will never be able to reach a verdict due to the fact that information pertaining to this case was overheard outside of the courtroom by a juror and was repeated in the presence of all the jurors.” Albert’s counsel moved for a mistrial, but "failing that,” requested that the court determine, in writing, which juror had conveyed the information to the rest of the jurors. A written inquiry was then made by the court as to the identity of the juror. The jury responded that it was juror number 9, Ms. Barnes, who was then brought into the courtroom and asked what she had heard. Ms. Barnes replied: "One day I was leaving the jury room, seeing another juror, and we got on that elevator with these two individuals, and they was lаughing and joking. Then I heard one say, 'Wait until we get Shawn.’ And so when we was deliberating, you know, it was the statement I made in there.” Further inquiry by the court revealed that one of the two individuals in the elevator was Officer Aponte. Albert’s counsеl then told the court that "I am going to oppose any mistrial because I believe jeopardy has attached. And this is through the interference of the District Attorney’s own witnesses in this case, Judge. And I am going to be opposing any mistrial. If one is granted, it is over my objection.” Counsel for Jackson and the Assistant District Attorney concurred in the position taken by Albert’s counsel.
The jury was instructed "to decide this case only on the evidence presented in оpen court and nothing else, absolutely nothing else.” The court asked the jurors individually whether they could follow that instruction and 10, including Ms. Barnes, immediately said they could. Two jurors responded that they were unsure, but after being reminded оf their duty to decide the case only on the evidence presented, those jurors also agreed to do so. The court then sent the jury back to continue deliberations without objection by either counsel.
Forty-five minutes later, the jury sent out a note requesting "in layman’s terms” the elements of robbery in the first degree, robbery in the second degree and criminal possession
In any event, even if all of the above were to be assumed, Albert’s appellate counsel concedes that "there was absolutely no reason that Officer Aponte would wаnt to threaten the complainant, the People’s key witness.” This view is in accord with the Trial Judge’s comment during colloquy respecting this alleged incident, that "I fail to see the prejudice to the defendants because it аppears to me that the allegation is that somehow or other Officer Aponte wants to get in a threatening manner his own complaining witness. And that makes no sense.”
Albert’s conviction must be affirmed. When defense counsel is present and given notice of the court’s determination of how to respond to a juror’s inquiry, traditional preservation rules are applied (People v DeRosario,
Further, although defense counsel at one point requested a mistrial when the issue arose, he firmly and unequivocally opposed a mistrial once he became aware of the substance of Ms. Barnes’ disclosure, and did not object when the court delivered curative instructions and sent the jury back to deliberate; thus Albert has not preserved for appellate review any claim regarding the court’s actions or prejudice resulting from Ms. Barnes’ disclosure (People v Igartua,
Even if we were to examine thе issue in the interest of justice, we would find no reversible error. "[N]ot every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically. Because juror misconduct can take many forms, nо ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered.” (People v Brown,
Murphy, P. J., dissents in a memorandum as follows: I would reverse and remand for a new trial. Criminal Term should have declared a mistrial after receiving a written note from the jury stating: "We the members of the jury will never be able to reach a verdict due to the fact that information pertaining to this case was overheard outside of the courtroom by a juror and was repeated in the presence of all the jurors” (emphasis in the оriginal).
While the facts concerning the communication are far from clear, it is nonetheless apparent that juror number 9 reported
The fact that defense counsel initially declined to seek a mistrial out of some apparently perceived advantage and then later moved for a mistrial is inconsеquential. The note from the jury created a manifest need for a mistrial, and the curative effort of the Criminal Term was insufficient.
When the court inquired of individual jurors whether each could follow the court’s instructions and decide the case only on the evidence heard in open court, one juror repeated, "I have difficulty,” and another said "I’ll try.” The subsequent examination of those two jurors, in which the court essentially persuaded them to agrеe, is wholly insufficient.
Appellant was deprived of a fair trial by the outside communication (see, People v Dashnau,