People v. Gale

• Citation: 79 A.D.3d 903,912 N.Y.S.2d 305
• Parties: The PEOPLE, etc., respondent, v. Abdule GALE, appellant.
• Decision Date: 14 December 2010
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 305
79 A.D.3d 903

The PEOPLE, etc., respondent,
v.
Abdule GALE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 14, 2010.

912 N.Y.S.2d 305

James B. LeBow, New York, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove,

912 N.Y.S.2d 306

Lori Glachman, and David Korngold of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

79 A.D.3d 903

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered October 18, 2007, convicting him of criminal possession of a weapon in the third degree, and violation of Vehicle and Traffic Law § 1227(1), upon a jury verdict, and imposing sentence.

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

On the second day of deliberations, the jury informed the Supreme Court that it could not agree on a verdict. The Supreme Court responded by instructing the jury that it should continue to deliberate on the two counts upon which it was

79 A.D.3d 904

instructed, and that a partial verdict would be acceptable. The jury found the defendant guilty of violating Vehicle and Traffic Law § 1227 (1), and continued deliberations with regard to the count of criminal possession of a weapon in the third degree. On the morning of the fourth day of deliberations, after the jury reported that it was deadlocked, the Supreme Court delivered an Allen charge ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528). That afternoon, the Supreme Court received a note from the jury with a request that it not be read in front of the defendant. The note indicated that 11 jurors had decided on a verdict and the one undecided juror had just told the others that he was taking the opposite stance because he feared retribution. The juror in question was worried because he lived near the crime scene, had seen the defendant in the neighborhood, and had been threatened by others in the neighborhood in connection with an unrelated event. Due to the circumstances under which the note was drafted, the Supreme Court correctly surmised that the note concerned Juror No. 1, the foreperson.

The Supreme Court suggested that a curative instruction should be given to the jury, and indicated that it did not want to question the subject juror directly because it did not want to conduct such an inquiry in front of the defendant. Defense counsel refused to...