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People v. Oldham

Criminal Court of the City of New York, New York County

January 12, 2018

The People of the State of New York, Plaintiff,
v.
Marquis Oldham, Defendant.

          For the People: Cyrus R. Vance, Jr. District Attorney, New York County By Assistant District Attorney Matthew Thiman

          For the Defendant: Seymour W. James, Jr., Esq The Legal Aid Society By Arthur Mendola, Esq. and Jamie Niskanen-Singer, Esq.

          CURTIS J. FARBER, J.

         Defendant Marquis Oldham moves, pursuant to CPL 330.30 (2), to set aside the jury verdict convicting him of the crime of Assault in the Third Degree (Penal Law ["PL"] § 120.00 [1]). Defendant contends that during deliberations, outside the presence of the Court, improper conduct occurred by a juror or jurors which rendered the verdict a product of coercion, requiring reversal of his conviction. The People oppose Defendant's motion, maintaining that Defendant's claims of juror impropriety relate solely to the tenor of the jury's deliberations, and therefore, are not a proper basis to set aside the verdict.

         Procedural History

         At the commencement of the trial, Defendant stood charged with Assault in the Third Degree as well as the crime of Resisting Arrest (PL § 205.30). A jury was selected on October 5, 2017, and the case was adjourned to the following day for opening statements and further proceedings. On the morning of Friday, October 6, 2017, Defendant, who was incarcerated at Rikers Island, was not produced in court for his continued trial. Officials from the Department of Corrections advised the Court that Defendant had refused to comply with the directives of corrections officers who were attempting to transport him to the courthouse. They related that Defendant had been involved in a physical altercation with corrections officers, with the resultant deployment of a chemical agent to subdue him. After the Court concluded its investigation into Defendant's non-appearance, the jury was instructed that, for administrative reasons, the trial would not proceed until October 10th, because Monday, October 9th, was the Columbus Day holiday. On October 10, 2017, opening statements were heard and the People's direct case commenced. The parties rested on October 11, 2017, and the jury began its deliberations. Within ten minutes of being given the case, the Court received the first note from the jury. The jurors asked to hear the 911 tape recording, to review photographs in evidence, and to have readback of the testimony of two police officers. Due to the lateness of the hour (4:37 p.m.), and with the agreement of the parties, after the 911 call was replayed and the jurors reviewed the photographic evidence, the jury was discharged for the day. The jury was advised that readbacks would be provided the following morning. The jury was directed to return to court on October 12, 2017, at 11:00 a.m. [1]

         On the morning of October 12, 2017, the jury heard readback of the requested testimony. At about 12:30 p.m., the jury briefly resumed its deliberations. At 12:45 p.m., the jury sent out a note requesting definitions of resisting arrest and "effectuating an arrest." After the Court responded to this note, the jury was sent to lunch. At approximately 3:00 p.m., the jury sent out the verdict sheet instead of a note. Although the verdict sheet showed the jury had recorded a verdict for Count Two, Resisting Arrest, no verdict was recorded for Count One, Assault in the Third Degree. Instead, the jury had written: "5-guilty, 1-not guilty" in the box provided to record that verdict. The Court, after consulting with the prosecutor and counsel for Defendant, brought the jury into the courtroom and reminded them that their verdict must be unanimous. The Court advised the jury to simply write a note when they reached a verdict, and not to advise the Court as to how they were voting. The jury was provided with a new verdict sheet and directed to resume their deliberations.

         At 3:27 p.m., the jury sent the Court a note indicating they had reached a verdict on the resisting arrest count, but could not come to an agreement on the assault count. Believing that the jury remained split five-to-one for a guilty verdict on the assault count, defense counsel asked the Court to take the partial verdict on the resisting arrest charge and declare a mistrial on the assault charge. The People asked the Court to give the jury an Allen charge.

         Pursuant to CPL 310.70 (1)(b)(i), the Court agreed to accept the partial verdict and advised the parties it would give the jury an Allen charge on the remaining count. The jury was brought into the courtroom, and a verdict of not guilty on the resisting arrest count was entered. The standard deadlock charge from the Criminal Jury Instructions ("CJI 2d"), was read to the jury on the remaining count, which includes the language:

I want to emphasize that I am not asking a juror to violate his or her conscience, or to abandon his or her best judgment. Any verdict you reach must be the verdict of each juror, and not mere acquiescence in the conclusion of others, but I am asking you to continue deliberating and to resume your deliberations with an open mind.

         At 5:25 p.m., the jury sent out a note, indicating they were "hopelessly deadlocked and cannot reach an agreement/verdict." The People asked the Court to repeat the Allen charge, while the defense moved for a mistrial. [2] This Court informed the parties that due to the lateness of the hour it would send the jury home and give them a chance to resume deliberations the following day. The jury was brought into the courtroom and the Court acknowledged their hard work throughout the day. The Court apprised the jury that their deliberations should cease, that they should rest for the evening, and return the following day at 10:30 a.m.

         On October 13, 2017, the jury resumed its deliberations. At 11:22 a.m., a jury note was received asking the Court to: "(1) Restate the role of a juror (evaluate evidence, make judgment, etc.), (2) define 'reasonable doubt, ' and (3) instruct the jury regarding "[w]hat is a juror allowed to factor in for consideration/exclude." The Court responded, in sum and substance, by advising the jury that it was up to them to decide which witnesses to believe or not believe, to decide how much of a witness's testimony to accept or reject, and to use their common sense to determine who is telling you the truth, who is not, and who is telling you something less than the full truth. The jury was next re-instructed on the definition of reasonable doubt. With regard to the third request in the note, the Court advised the jury that they were to determine the facts from the evidence alone, not to be governed or influenced by sympathy or prejudice before or against any party, and to base their verdict on the evidence and not upon speculation, guess or conjecture.

         At 3:40 p.m., the jury sent out a note indicating they had reached a verdict. The jury returned to the courtroom and recorded a verdict of guilty on Count One, Assault in the Third Degree. At defense counsel's request, the jury was polled. Each of the six jurors individually affirmed their verdict of guilty.

         CPL 330.30(2) Motion

         Pursuant to CPL 330.30 (2), a motion to set aside a verdict may be granted upon the ground "[t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the ...


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