People v. Sharff

• Decision Date: 12 November 1974
• Citation: 45 A.D.2d 666,360 N.Y.S.2d 671
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard SHARFF, Defendant-Appellant.

Page 671

360 N.Y.S.2d 671

45 A.D.2d 666

The PEOPLE of the State of New York, Respondent, v. Richard SHARFF, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 12, 1974.

Carolyn Wheat, New York City, of counsel (William E. Hellerstein and William J. Gallagher, Attys., New York City), for defendant-appellant.

Edward A. McDonald, New York City, of counsel (Lewis R. Friedman, New York City, with him on the brief; Richard H. Kuh, Dist. Atty.), for respondent.

Before MARKEWICH, J.P., and NUNEZ, MURPHY and TILZER, JJ.

TILZER, Justice.

The defendant appeals from a judgment convicting him after a trial by jury of Rape in the First Degree and sentencing him to a term of imprisonment of 4 to 12 years.

The jury went into deliberations at about 12:30 P.M. It appears that about five hours later the jury reported that it was 'still having additional arguments'. Thereupon, the Court gave the following supplemental instructions:

'As you all know, the purpose of a trial is a search for the truth.

Therefore, if it is at all possible, it is desirable that a jury should reach a verdict, one way or the other.

I am not suggesting that you should agree on a verdict that you do not consider to be a just verdict, but I am suggesting that you attempt to resolve your differences and agree on a proper verdict that is in accordance with your findings of fact and the law as I have explained it to you.

New I ask you to go back into the jury room and once again review the evidence.

Go over the testimony of each witness sensibly, weigh it very carefully. Discuss it calmly, dispassionately. Listen to the view and arguments of your fellow jurors. This is what I mean by deliberations.

Being under oath you must continue; or you are under oath to deliberate in this court until there are no further deliberations warranted in this case.

That does not mean that every decision must be made by you.

It does not mean that a verdict must be reached.

But it does mean that every effort should be made by you consistent with your conclusions to arrive at a verdict.'

The Court further stated:

'. . ..t f

If you are unable to reach a verdict by 6:45 P.M., I am going to tell you what I will do.

I am going to send you out dinner and then to a hotel at 6:45 P.M., because there is no point in coming back here from dinner. It will be late at night.

Tomorrow morning your minds will be free and fresh. You can deliberate some more then. This is a serious case. A verdict should be reached, one way or the other.

I am going to ask you to go back in there now and work until 6:45 P.M.

If there is no verdict reached one way or the other, I am sending you out to dinner and out to a hotel, and you will leave the building until tomorrow morning, when you will come back here and go back to the jury room, and once again see if you can come to a verdict one way or the other.'

After the jurors left the courtroom, counsel for the defendant objected, arguing that the supplemental instructions were unduly coercive, which objection was overruled. Approximately 15 minutes later the jury returned a guilty verdict.

On appeal it is urged that the supplemental instructions improperly emphasized the necessity of reaching a verdict and that the Court's statements with reference to sequestration were prejudicial and constituted reversible error.

We believe that the instructions were proper and were not coercive. Contrary to the contention that the Trial Justice unduly emphasized the necessity for arriving at a verdict, the Court specifically stated that it '(w)as not suggesting that (the jury) should agree on a verdict (it did) not consider to be a just verdict', and that 'it (did) not mean that a verdict must be reached.' The total effect of the instructions was to remind the jurors of their obligations and the importance of reaching a verdict and in so doing, the Court acted well within the bounds of discretion (see People v. Randall, 9 N.Y.2d 413, 214 N.Y.S.2d 417, 174 N.E.2d 507; People v. Faber, 199 N.Y. 256, 92 N.E. 674).

Further, we do not believe that the Trial Court's statements concerning sequestration were coercive. Although, under certain circumstances, informing the jury that it might be held overnight has been considered to be improper, it has not been held that such is reversible error in and of itself, but rather, the courts have given consideration to the manner in which the jury was so informed as well as the circumstances involved in each situation.

Accordingly, in People v. Kincaid, 9 A.D.2d 954, 195 N.Y.S.2d 784, although a new trial was directed because of certain 'remarks and innuendoes made in urging the jury to arrive at a verdict' (9 A.D.2d at p. 955, 195 N.Y.S.2d at p. 785), the Court stated:

'(W)e do not think that it was improper for the learned Trial Judge to remonstrate with the jury, six hours after they had first retired, for possible obstinacy which might have prevented agreement by them up to that time, and to tell them that he would lock them up for the night if they did not reach an agreement . . ..' (9 A.D.2d at p. 955, 195 N.Y.S.2d at p. 785.)

And as indicated, even where it has been concluded that the Trial Justice's references to sequestration were improper, that conclusion was arrived at only upon consideration of the manner in which the Court instructed the jury. For example, in People v. Josey, 19 A.D.2d 660, 241 N.Y.S.2d 620, the jury was not only told that it might be kept over night but was also informed that there had not been a hung jury in that County for over 20...