People v. Rukaj

Decision Date25 September 1986
Citation123 A.D.2d 277,506 N.Y.S.2d 677
PartiesThe PEOPLE of the State of New York, Respondent, v. Peter RUKAJ, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

T.J. Miller, New York City, for respondent.

G.J. Singer, J.R. Benfante, New York City, for defendant-appellant.

Before SANDLER, J.P., and CARRO, FEIN, MILONAS and ELLERIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered April 30, 1985, which convicted defendant, after jury trial, of burglary in the third degree and sentenced him to a prison term of one and one third to four years, reversed, on the law, and the matter remanded for a new trial.

Prior to sentence, defendant moved to set aside the jury verdict pursuant to CPL 330.30 on the grounds that during the course of the jury's deliberations a Court Officer made unauthorized communications to a juror and also that the jury deliberations were tainted by racial bias. The application was supported by the affidavit of a juror, Diane Diaz, in which she recounted that a particular Court Officer stated to her in a voice loud enough for other jurors to hear that if there was not a verdict the jury might be sequestered for the entire weekend or perhaps five or six weeks. The Diaz affidavit also alleged various instances wherein considerations of racial bias infiltrated the jury's deliberations and stated that a note was sent to the judge during the course of deliberations, informing him that the jury was unable to reach a verdict due to racial prejudice and speculation. In the affidavit, Ms. Diaz also claimed that she was forced to relinquish her position for acquittal because of the coercion of the Court Officer's remark and the racially motivated pressure that other jurors had placed on her.

The Judge granted the motion to the extent of ordering a hearing to investigate the "intrusion" of the Court Officer's communication. The motion was denied with respect to the claimed ground of racial bias.

At the hearing, Ms. Diaz testified as to the circumstances of the Court Officer's communication, which she indicated took place after the jury had deliberated vigorously for two days and was still deadlocked when the jurors repaired to dinner at about 7:00 PM on the second evening, a Friday. She testified that while being escorted to or from the restaurant, she asked one of the attending Court Officers how long deliberations would continue if the jury could not reach a verdict and that the Court Officer replied that the jury would be sequestered for the weekend and then went on to state that a jury could be sequestered for as long as five or six weeks before a mistrial would be declared. It was shortly thereafter that evening, at 9:36 PM, that the jury returned its unanimous guilty verdict.

We initially note that Court Officers are prohibited by statute (CPL 310.10) and case law (Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420; People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347) from communicating with jurors unless authorized by the court or when performing administrative duties. The trial judge made no findings on the issue of what remarks were, in fact, made by the Court Officer. If Ms. Diaz's testimony is accepted in that regard, the Court Officer's remarks were not only highly inappropriate but, in light of the jury's relatively quick turnaround in reaching agreement, these remarks could be seen as having influenced the verdict by prejudicially suggesting that the jury reach an agreement or be subject to extended sequestration. (People v. Perfetto, 96 A.D.2d 517, 464 N.Y.S.2d 818; People v. Eadie, 83 A.D.2d 773, 443 N.Y.S.2d 477; People v. Cadby, 75 A.D.2d 713, 427 N.Y.S.2d 121; cf. People v. Horney, 112 A.D.2d 841, 844, 493 N.Y.S.2d 130.) This is persuasively demonstrated by the testimony, at the post trial hearing, of the juror to whom the remarks were made indicating that, at the very least, she voted for conviction because of her concern about a lengthy sequestration even though she still believed the defendant to be not guilty.

For this reason, the conviction must be reversed and the matter remanded for a new trial.

Note must also be taken of a further issue of deep concern that has been raised here by allegations that racial bias permeated this jury's deliberations, allegations which, if proven true, would also require reversal. The trial court summarily denied the motion to set aside the verdict on this ground without a hearing or other appropriate inquiry into this most serious charge made under oath.

While the post trial hearing to set aside the verdict was limited to the matter of the Court Officer's remarks, in the course of that hearing Ms. Diaz, herself a member of a minority group, testified with concern and disquietude about what she perceived as deeply rooted racial bias permeating the jury's deliberations. The jury here was composed entirely of blacks and Hispanics and the two arresting police officers who testified for the People were black, while the defendant and the defense attorney were white.

The dissenting juror testified as to the extremely heated nature of the deliberations. Chairs were "shuffled about" and one was even thrown at her. (Cf. People v. Lavender, 117 A.D.2d 253, 502 N.Y.S.2d 439, and People v. Jacobson, 109 Misc.2d 204, 440 N.Y.S.2d 458, aff'd. 89 A.D.2d 826, 452 N.Y.S.2d 473.) There was "static" and "violence", and some of the jurors cursed at her and harassed her. According to her testimony, the reasons for this harassment appeared to be predicated upon the fact that she didn't "look at people by color, race, or ethnic background" while other members of the jury repeatedly expressed their prejudice against defendant and his counsel by virtue of their race and exhorted the other jurors to vote for conviction on this basis alone. She asserted that comments were made to the effect that one juror would not vote for acquittal because, "I won't let a white man [defense counsel] influence or manipulate me and I won't do it" and, "we as blacks should not allow 'whitey' to win out".

Apparently the jury was so troubled over this issue that it sent a note to the Court indicating that it could not reach a verdict "because of speculations and biased feelings". After this note was read, defense counsel requested a mistrial. The Court denied this request and also a request to conduct further inquiry. Instead, the Court further highlighted the racial issue by a supplemental charge which was insufficient to appropriately address the issue.

At this point, the trial judge should have conducted an inquiry into the nature of the jury's "speculations and biased feelings". The court had a clear obligation to respond to the jury note and at that juncture should minimally have questioned the jurors. (People v. Lavender, supra.)

The fact that the jury sent this note is supportive of the fact that the allegations of Ms. Diaz were not mere afterthoughts or second guesses, raised post hoc by a disaffected juror. The long standing rule that a jury verdict should not be impeached, absent special circumstances, by affidavit or testimony of jurors after their verdict is publicly returned is intended to protect jurors from being harassed after verdict and to ensure the secure foundation of the verdict. (See, e.g., People v. DeLucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211.) Here, it appears that the jury's concern about biased feelings was not an afterthought but the note evidences that the concern was present at the time of deliberation.

As we recently noted in People v. Lavender, supra, in distinction to the rule that statements by jurors may not ordinarily be used to impeach a verdict once the jury has been discharged, when the juror's concern is transmitted to the court prior to report of the verdict the issue should be investigated.

CPL 330.30 provides that a jury verdict may be set aside, upon motion of the defendant, inter alia, on the ground of improper conduct by a juror which may have affected a substantial right. While, as a general rule, statements by the jurors themselves may not be used to impeach a verdict and the court may not inquire into the mental processes of deliberation (e.g. Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089-90, 97 L.Ed.2d 1522; People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51), there is an exception to the rule where there has been an improper outside influence on jury deliberations. (Id.) When these outside influences impair the impartial assessment of the facts by the jury, and thus constrain defendant's fundamental right to a fair trial, reversal is warranted. (People v. Phillips, 87 Misc.2d 613, 384 N.Y.S.2d 906, aff'd. 52 A.D.2d 758, 384 N.Y.S.2d 715, lv. app. denied 39 N.Y.2d 949, 386 N.Y.S.2d 1039, 352 N.E.2d 894.)

Accordingly, when the spectre of an outside influence of the jury affecting defendant's fundamental right to a fair trial is raised, it is vital that a hearing or other appropriate inquiry be held to ascertain what actually transpired. (See People v. Phillips, supra; People v. Horney, supra; People v. Morales, 121 A.D.2d 240, 243, 503 N.Y.S.2d 374, Fein, J., dissenting.) At such hearing or inquiry, Ms. Diaz could be examined and cross-examined closely as to the validity of her allegations. Moreover, the People and the other jurors could have an opportunity to respond. (See People v. DeLucia, supra.)

If, after thorough examination, Ms. Diaz's claim that she was coerced into abandoning her position for acquittal by reason of another juror's harassment survives scrutiny and is established, it would demonstrate that invidious racial bias and prejudice permeated this jury's deliberations so as to deprive this defendant of a fair trial. When a juror manifests any bias or prejudice towards a defendant because of race, creed, or color, that juror is unable to return an impartial...

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