People v. Diaz

• Decision Date: 22 December 1997
• Citation: 245 A.D.2d 526,666 N.Y.S.2d 684
• Parties: , 1997 N.Y. Slip Op. 11,178 The PEOPLE, etc., Respondent, v. Henry DIAZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 684

666 N.Y.S.2d 684

245 A.D.2d 526, 1997 N.Y. Slip Op. 11,178

The PEOPLE, etc., Respondent, v. Henry DIAZ, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 22, 1997.

Sharon Weintraub Dashow and George Sheinberg, Brooklyn, for appellant (one brief filed).

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Ellen C. Abbot, and Eliana Salzhauer of counsel; H. Daniel Murphy on the brief), for respondent.

Before BRACKEN, J.P., and COPERTINO, THOMPSON and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Golia, J.), rendered May 13, 1996, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

In the instant case, the trial court, in its Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528), instructed the jury that "[i]f you have a reasonable doubt * * * and one or more of your fellow jurors questions you about it, you should be willing and able to give that juror what you believe is a fair, calm explanation for your position based upon the evidence or lack of evidence". Given that this language is virtually identical to the language which was condemned by the Court of Appeals in People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, reversal is warranted, as this charge implicitly imposed on the defendant the burden of supplying the jurors with the arguments they needed to legitimize their votes to acquit (see, People v. Roche, 239 A.D.2d 270, 658 N.Y.S.2d 16; People v. Jones, 216 A.D.2d 324, 325, 627 N.Y.S.2d 778; People v. Arce, 215 A.D.2d 277, 278, 627 N.Y.S.2d 15). Further, the formerly deadlocked jury announced its verdict convicting the defendant within a relatively brief interval subsequent to the delivery of the Allen charge and without any intervening communication with the court. Under these circumstances, there is "no way of conclusively discounting the erroneous instruction as a factor in the eventuation of the guilty verdict" (see, People v. Roche, supra).

The defendant's remaining contention is without merit.