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People v. Cherry

Other Lower Courts

June 13, 2001

The People of the State of New York, Plaintiff,
v.
Errol Cherry, Defendant.

Page 800

COUNSEL

Howard Greenberg, Brooklyn, for defendant.

Robert M. Morgenthau, District Attorney of New York County (Todd Harrison of counsel), for plaintiff.

OPINION

Dora L. Irizarry, J.

This case raises the unique issue of what procedural safeguards must be followed to determine questions of potential juror bias and/or impartiality based upon concerns brought to the court's attention by sitting jurors during various stages of a criminal trial.

The defendant herein is charged with two counts of assault in the first degree (under Penal Law § 120.10 [1], [2]) and one count of criminal possession of a weapon in the third degree (under Penal Law § 265.01 [2]; § 265.02 [1]).

In connection with the first assault count, the indictment charges, in essence, that the defendant intended to, and did, cause serious physical injury to another person " by means of a dangerous instrument." Additionally, the weapon possession count alleges that the defendant possessed " a dangerous instrument" (the same dangerous instrument alleged under the first assault count) with the intent to use it unlawfully against another.

Following a thorough jury voir dire conducted by the court and the parties, which included questioning regarding personal and professional experience, 12 jurors and 3 alternate jurors were deemed acceptable by the parties and were duly sworn.

This court then gave required preliminary instructions to the jury, explaining in general terms the basic functions and duties of the jurors, standard trial procedures and relevant legal principles. As pertinent herein, the jury was instructed that opening statements do not constitute evidence; that " there is no obligation on the defendant to offer evidence since the entire burden of proof remains upon the People" ; that the People have the sole burden of proving each and every element of each crime charged beyond a reasonable doubt, failing which the jury must return a not guilty verdict; and that competent evidence consists of testimony of witnesses under oath, exhibits which are introduced into evidence and any stipulations entered into between the parties.

The jury was instructed further that, during the course of the trial, either party " may object to a question or an answer

Page 801

on the ground that somehow it is legally improper or inadmissible" and that the court would make appropriate rulings on such objections. In this connection, the court instructed specifically:

" Please do not resent the fact that either attorney makes objections. This is their duty. Also, do not hold it against either attorney or party if I rule against him. You must not concern yourselves with the court's reason for rulings on any objections. You must not consider any question or testimony to which an objection was sustained or which has been ordered stricken.

" As I will explain to you in detail in my final charge, as jurors in this case, you are the sole judges of the facts and I am the sole judge of the law. You must accept the law as I give it to you without hesitation or reservation, even if you privately disagree with me. You must keep an open mind. It is my function to make rulings and to charge you on the law. I tell you now that you are not to infer from any of my evidentiary rulings or from anything else that may occur in the courtroom that I have an opinion on this case. I tell you and I instruct you that I do not."

Regarding credibility and factual determinations, the jury was instructed that they " must keep an open mind and not form or express any opinions or conclusions with respect to the evidence in this case, until I submit the case to you for your deliberation." [*]

During defense counsel's opening statement, the court sustained objections by the prosecutor to references to a 911 tape that (as discussed at sidebar) had not yet been the subject of a ruling regarding admissibility; to an alleged statement of the defendant that had previously been ruled inadmissible; to attempts by defense counsel to give legal instructions to the jury; and to counsel's comment that the jury should not be " impressed" ...


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