People v. Mercado
| Decision Date | 30 April 1998 |
| Citation | 91 N.Y.2d 960,695 N.E.2d 711,672 N.Y.S.2d 842 |
| Parties | , 695 N.E.2d 711, 1998 N.Y. Slip Op. 4260 The PEOPLE of the State of New York, Respondent, v. Javier MERCADO, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division should be affirmed.
On appeal, defendant assigns various claims of error arising out of a juror's initial silence when polled about the verdict. Among his remaining contentions, defendant argues that the trial court erroneously gave an "acting-in-concert" instruction in response to a note from the deliberating jury requesting further explanation of some of the crimes charged against defendant.
Defendant was tried on charges stemming from a murder occurring on July 16, 1994 in Bronx County. During deliberations, the jury requested "another explanation of the law on attempted murder in the second degree and assault in the second degree." In responding to the request, the court also repeated its previous instruction on "acting-in-concert" liability. The jury subsequently informed the court that it had reached a verdict and the foreperson, in open court and in the presence of all parties, confirmed that the jury had found defendant guilty of murder in the second degree and assault in the second degree.
When the jury was polled, juror number 6 initially failed to answer whether the stated verdict was hers. The court repeated the question a number of times but, each time, the juror failed to respond. The court finally stated:
To this, the juror responded "yes" and the remaining jurors were polled. Defendant was convicted of murder in the second degree and assault in the second degree and was sentenced to concurrent terms of 25 years to life, and 2 to 6 years, respectively. The Appellate Division affirmed the conviction and sentence with two Justices dissenting. A dissenting Justice granted defendant leave to appeal to this Court.
As provided under the Criminal Procedure Law, either party may request polling the jury after a verdict has been rendered and, if "any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberations" (CPL 310.80). Even in the absence of an outright negative declaration, a juror's response during polling may engender doubts about a full verdict and we have recognized the responsibility of a court to resolve any uncertainties (see, Sharrow v. Dick Corp., 86 N.Y.2d 54, 629 N.Y.S.2d 980, 653 N.E.2d...
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