People v. Mercado

• Decision Date: 26 June 1997
• Citation: 659 N.Y.S.2d 453,230 A.D.2d 488
• Parties: The PEOPLE of the State of New York, Respondent, v. Javier MERCADO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 453

659 N.Y.S.2d 453

230 A.D.2d 488

The PEOPLE of the State of New York, Respondent, v. Javier MERCADO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 26, 1997.

Stephen R. Mahler, of counsel (Mahler, Miller, Harris & Engel P.C., attorneys) for defendant-appellant.

Daniel R. Wanderman, of counsel (Jennifer A. Daskevich and Robert Moore, on the brief, Robert T. Johnson, attorney) for respondent.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, ELLERIN and TOM, JJ.

TOM, Justice.

Defendant appeals from a judgment convicting him of murder and a related charge on the grounds of, inter alia, failure of the trial court to take remedial action to insure that the jury verdict was unanimous.

Testimony adduced at the trial reveals that on July 16, 1994, shortly after 8:30 PM, Brenton Rousey, Daniel Serrano and Mike Fernandez were accosted by defendant and a group of young men on Valentine Avenue in the Bronx. An altercation broke out and Fernandez was struck on the head with a 40 ounce beer bottle. As the two friends attempted to drag the unconscious Fernandez to safety, Serrano was pummeled to the ground, and beaten by three youths. As he lay on the ground, he was shot several times by defendant and another gunman. Serrano later died from his wounds. Fernandez was also shot in the back, but he survived his injuries.

Defendant was convicted, after a jury trial, of murder in the second degree and assault in the second degree. He was sentenced to concurrent terms of 25 years to life, and 2 to 6 years, respectively.

On October 20, 1995, the jury informed the court, by a written note, that they had reached a verdict. After convening the parties, the foreperson, in open court, once again answered in the affirmative that the jury had agreed upon a verdict. After the foreperson answered on behalf of the jury on all the counts, indicating a guilty verdict for counts two and six (murder in the second degree and assault in the second degree) and not guilty on all other counts, defendant's counsel requested that the jury be polled.

When juror number 6 was asked whether the stated verdict was hers, she did not respond. In fact, juror number 6 repeatedly failed to answer the court after the same question was reiterated a number of times. The juror, however, did indicate to the court her understanding of the question and her ability to hear the court. The court then stated:

[I]t's obvious that you're very emotional about this and that you are taking your job as juror seriously. We understand that. But you have indicated your verdict in the jury room and it is necessary for us to confirm it here if, in fact, that was your verdict. And therefore you are being asked whether that, in fact, is your verdict, yes or no? Please make a response to my question.

At this point the juror responded "yes". On appeal, defendant argues that the failure of the court to conduct an inquiry to determine whether the juror's verdict was a product of coercion or duress created an uncertainty as to the unanimity of the jury verdict that mandates reversal.

When juror number 6 repeatedly did not respond to the court's query whether the verdict announced by the foreperson was her verdict, defense counsel only requested a sidebar; the application was denied so that the court could repeat its question to the juror. Counsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict without conducting a hearing as to juror number 6 (People v. Cain, 76 N.Y.2d 119, 124, n. 2, 556 N.Y.S.2d 848, 556 N.E.2d 141; People v. Dicks, 188 A.D.2d 352, 590 N.Y.S.2d 499 lv. denied 81 N.Y.2d 838, 595 N.Y.S.2d 737, 611 N.E.2d 776; see, People v. Williams, 70 N.Y.2d 946, 524 N.Y.S.2d 669, 519 N.E.2d 615). In any event, we find no basis on this record to conclude that defendant was deprived of his right to a unanimous jury verdict.

Criminal Procedure Law 310.80 provides in relevant part that after a verdict has been rendered, upon polling the jury, if "any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume deliberation". (emphasis added). Giving the specific language of the statute its literal meaning, the requirement of further deliberation turns on whether a negative answer is imparted by the juror to the court. As articulated succinctly in People v. Maddox, 139 A.D.2d 597, 598, 527 N.Y.S.2d 89 lv. denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 903, in the "absence of a declaration in the negative ... or a claim of duress, no more was required" during polling to uphold the validity of the verdict.

In the present case, juror number 6 did not at any time make a negative declaration in response to the court's question as to whether the stated verdict was hers. Although she initially failed to respond to the court's inquiry, she later answered "yes" unequivocally. Upon further inquiry, the court reporter informed the court that she said "yes". When the court once again asked: "Is your response, yes?" Juror number 6 confirmed that the verdict was hers.

The trial court, an experienced and discerning jurist, noted for the record that the juror clearly took her responsibility as a juror seriously, and was visibly upset in discharging the responsibility. The juror's momentary inability to articulate her individual verdict may have been caused by fear, or stage fright, or by being overwhelmed by the violent nature of the crime involved or the gravity of her decision. However, an inquiry would have served no statutory purpose under these circumstances, where the record clearly reflects that the juror provided an unqualified affirmative response to the court, which is the dispositive consideration. Based on the juror's affirmative response during polling, together with the announcement by the foreperson that a unanimous verdict had been reached, we find no basis to conclude that the verdict was less than unanimous.

The validity of the verdict is established as well by a comparison with cases where a juror's response during polling was expressly equivocal. In the present case, the juror did not request to talk to the trial court in connection with the verdict, resulting in a robing room inquiry (cf., People v. Cain, 151 A.D.2d 591, 542 N.Y.S.2d 692, rev'd on other grounds 76 N.Y.2d 119, 556 N.Y.S.2d 848, 556 N.E.2d 141). Nor was this juror's initial failure to respond tantamount to the juror's deliberate, and negative, statement "no response" (cf., Sharrow v. Dick Corporation, 86 N.Y.2d 54, 58, 629 N.Y.S.2d 980, 653 N.E.2d 1150). Nor did the juror answer affirmatively, but explicitly qualify the response during polling by indicating that the answer was "with reasonable doubt" (cf., People v. Garvin, 90 A.D.2d 682, 683, 456 N.Y.S.2d 30), which, on its face, was a response contrary to the requisite standard of guilt.

The dissent relies on People v. Pickett (61 N.Y.2d 773, 774, 473 N.Y.S.2d 157, 461 N.E.2d 294) as authority requiring a reversal, but the further remedial action required in that ruling resulted when the juror, in response to the court's question whether the verdicts were hers, specifically answered, "yes, under duress." In this case, the dissent's contention that the juror exhibited duress based on her hesitancy to respond is purely speculative. There is no precedent to support an analogy between an explicit statement of duress and a juror's delay in responding, especially when the juror herein subsequently affirmatively answered "yes". The dissent also relies by analogy on the ruling in Deane, et. al v. Dunbar, 777 F.2d 871, issued in the context of a civil proceeding, in which the jurors were polled as to their response to special interrogatories. However, the salient circumstance in that case resulting in further inquiry was a juror's statement during polling that he had given his answer at the conclusion of deliberations "with misgivings," that he had "different ideas," that he did not now concur in the verdict and that "we are not unanimous, though I gave in," a circumstance manifestly not present herein (supra, at 874). Any of these or similar circumstances, by contrast with the delayed but unqualified affirmative response of juror number 6, would constitute negative answers under Criminal Procedure Law 310.80, precluding the court from accepting the verdict and requiring that the jury resume deliberations.

Finally in this regard, the dissent contends that, as a consequence of the verdict, the juror was sick and had to be led from the courtroom. Her putative illness is not clearly established in the record, and the inference drawn by the dissent is conjectural. Trial counsel's attempt to place on the record that the juror was sick was rejected by the trial court as unfounded, in which correction counsel acquiesced. Rather, the trial court observed that it was difficult for the juror to arrive at a verdict and that she became very emotional when she had to publicly announce her verdict. The record also indicates that the juror's affirmative response was her own, and not the court reporter's.

Turning to defendant's remaining arguments, we note that defendant's claim that the prosecutor improperly questioned defendant's witness about her failure to go to the police with her exculpatory observation was not preserved since counsel did not make an objection or seek curative instructions (People v. Dawson, 50 N.Y.2d 311, 316, 428 N.Y.S.2d 914, 406 N.E.2d 771) and we decline to review it in the interest of justice. Were we to review, we would find it to be without merit. Also unpreserved, and unreviewable in light of an inadequate record, is defendant's claim that the court did not provide him with meaningful notice of a jury note and a meaningful opportunity to be heard with respect to the court's supplemental instruction (People v. Starling, 85 N.Y.2d 509, 626 N.Y.S.2d 729, 650 N.E.2d 387).

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