People v. Ramirez

• Decision Date: 22 January 1996
• Citation: 636 N.Y.S.2d 847,223 A.D.2d 656
• Parties: The PEOPLE, etc., Respondent, v. George RAMIREZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 847

636 N.Y.S.2d 847

223 A.D.2d 656

The PEOPLE, etc., Respondent, v. George RAMIREZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 22, 1996.

Daniel L. Greenberg, New York City (Robert S. Dean, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Ruth E. Ross, Migdalia A. Castillo, and Lawrence Oh, of counsel), for respondent.

Before O'BRIEN, J.P., and JOY, ALTMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered December 15, 1993, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The hearing court properly ruled that the defendant consented to the search and seizure of his bloody clothing in a hospital emergency room (see, People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575; People v. Ruiz, 188 A.D.2d 495, 591 N.Y.S.2d 183).

We reject the defendant's contention that the court's Allen charge (see, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was improper. We agree with our dissenting colleague that, as a general rule, a court should not deviate from the standard Allen charge. However, while the charge in this case was unusually and unnecessarily lengthy, a review of the charge as a whole demonstrates that it was essentially neutral, directed at the jurors in general, and did not coerce them to reach a verdict or to achieve a specific result (see, People v. Pagan, 45 N.Y.2d 725, 408 N.Y.S.2d 473, 380 N.E.2d 299; People v. Bastien, 180 A.D.2d 691, 580 N.Y.S.2d 54; People v. Fleury, 177 A.D.2d 504, 575 N.Y.S.2d 713; People v. Austin, 168 A.D.2d 502, 562 N.Y.S.2d 745).

JOY, ALTMAN and FLORIO, JJ., concur.

O'BRIEN, J.P., dissents and votes to reverse the judgment and to order a new trial with the following memorandum.

O'BRIEN, Justice Presiding, dissenting.

I agree with my colleagues that the trial court's suppression ruling was correct. I would grant the defendant a new trial, however, since I cannot agree with my colleagues that the court's Allen charge (see, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was neutral and not coercive. The court's instructions deflected the focus of the jury's deliberations from the evidence in the case to the race and personalities of the participants at the trial.

The defendant was charged with killing a drug dealer who wounded him and killed his friend during an exchange of gunfire on a public street. The defendant's first trial ended in a hung jury. At his second trial, the jury deliberated the first day for about six hours without reaching a verdict. After deliberating the next morning, the jury informed the court that it could not reach a verdict. The court instructed the jury to continue deliberating. After about another hour of deliberations, the jury informed the court that it was still deadlocked. The court again instructed the jury to continue deliberating. Later that evening, the jury informed the court a third time that it was unable to come to an agreement. The court sent the jurors to a hotel for the night after informing them that it hoped that they would be able to reach a verdict.

The next morning, outside the presence of the jury, the court informed the attorneys that it was going to give the standard Allen charge and that it would instruct the jurors that they should not be influenced by any racial considerations or by their feelings for the attorneys, the victim, or the defendant. The defense counsel objected to any instructions other than the standard Allen charge and noted that there was no indication that sympathies or race were playing a part in the jury's deliberations. Race was not an issue in this case since the victim and the defendant were of the same race. The court agreed that it was speculating about what was on the jurors' minds. However, it delivered its charge over defense counsel's strenuous objections.

The court began by suggesting to the jurors that some of them might not be making a "careful, calm, reasonable and logical determination." The court also stated:

"But sometimes we make important decisions not based on the facts and the evidence and the weighing and the logic, and even sometimes we vote for political candidates not based on political merits but on the color of a candidate's skin. Again, that has nothing to do with the merits but sometimes we do these things."

The court suggested that the jurors' problem in reaching a verdict might be due to their feelings about the attorneys:

"Now the second area you may be having a problem with--and again, I don't know--you may be letting your feelings about the lawyers influence your verdict. Now, this may not even occur to you because it may be unconscious, rather than something you're consciously thinking about, because sometimes the jurors let their decisions be guided by their feelings about the lawyers, rather than their analysis of the evidence in the case. Even if the lawyer hasn't given his or her personal opinion in the case, you still may be thinking in terms of whether you like or dislike a particular lawyer.

"Now, Abraham Lincoln was a lawyer before he was a [P]resident, and he hardly ever lost a case, and it [didn't] matter if he was a [d]efense [a]ttorney, it [didn't] matter if he was a prosecutor, it didn't matter if he was representing the railroad against the small farmer, and it didn't matter if he was representing the small farmer against the railroad. He won his cases. He won his cases, not because the law and the evidence were always on his side; he won his cases because juries trusted Abe Lincoln, because it's natural sometimes for juries not to really think about the evidence...