People v. Spencer

• Citation: 24 N.Y.S.3d 48,135 A.D.3d 608,2016 N.Y. Slip Op. 00447
• Decision Date: 26 January 2016
• Docket Number: 16142,3817/09
• Parties: The PEOPLE of the State of New York, Respondent, v. Darrell SPENCER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 608
24 N.Y.S.3d 48
2016 N.Y. Slip Op. 00447

The PEOPLE of the State of New York, Respondent,
v.
Darrell SPENCER, Defendant–Appellant.

16142
3817/09

Supreme Court, Appellate Division, First Department, New York.

Jan. 26, 2016.

24 N.Y.S.3d 49

Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.

135 A.D.3d 608

Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered July 18, 2013, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 25 years, affirmed.

The court properly denied defendant's motion to suppress his statements as fruits of a warrantless home arrest based upon its finding that defendant voluntarily came out of his apartment. There is no basis for disturbing the court's credibility determinations. The hearing evidence established that there was no violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) because defendant knowingly and voluntarily presented himself for public view (People v. Ashcroft, 33 A.D.3d 429, 429, 823 N.Y.S.2d 23 1st Dept.2006, lv. denied 8 N.Y.3d 843, 830 N.Y.S.2d 702, 862 N.E.2d 794 2007, cert. denied 552 U.S. 829, 128 S.Ct. 49, 169 L.Ed.2d 43 2007 ).

The court properly denied defendant's request for a jury instruction regarding intoxication. At trial, defendant maintained he had stabbed the victim out of self-defense. In the aftermath of the stabbing, he carried the victim to the tub, ran the shower to wash away the blood, tried to clean up the living room floor and walls, and sent his friend a text message, asking her to bring over plastic bags and cleaning supplies. Viewed as a whole and in a light most favorable to defendant, the evidence, which included, among other things, defendant's entirely purposeful behavior, provided no reasonable view that he was so intoxicated as to be unable to form the requisite intent (see People v. Beaty, 22 N.Y.3d 918, 921, 977 N.Y.S.2d 172, 999 N.E.2d 535 2013 ).

135 A.D.3d 609

The court properly denied defendant's application for a mistrial. On the fourth day of the deliberation, after counsel had agreed to excuse the alternate jurors, the court was notified that juror number one, the foreperson, had concerns. In the presence of both attorneys, the court conducted an in camera, individualized inquiry of the juror (see People v. Rodriguez, 71 N.Y.2d 214, 524 N.Y.S.2d 422, 519 N.E.2d 333 1988 ). The juror said she could not “separate [her] emotions from the case” and although she had originally thought she could do that, was now unable to do so. The court reminded her that she had a duty to decide the case “on the evidence and the law as you find it to be” adding, that “I know it's difficult to be a juror but ... we've all put [in] a lot of time, a lot of effort, and there's no way that we can go forward without you.” When the juror asked the court, “So is it just that I make a decision based on my emotions, just to get it out of the way?” the court replied, “No, no I wouldn't ask you to make a decision based upon your emotions ...” and urged her to “put aside, to the extent that you can, your emotion and make a decision. Speak to your fellow jurors; discuss with your fellow jurors; listen to your fellow jurors; express your own views to your fellow jurors; and then, eventually, come to a decision as to the one issue here ... whether or not the People have proven Mr. Spencer's guilt beyond a reasonable doubt. I'm going to have to ask you to really try very hard to do that.” When the juror told the court “I don't have it in me,” the court reassured her

24 N.Y.S.3d 50

“there is no new jury that's going to be any better doing this than you are” and stated:

“THE COURT: Look if you think of the position that we're in now ... I mean this is a significant case and everybody here has a real interest in it being resolved. Your fellow jurors have an interest in it being resolved; the People of the State have an interest of it being resolved, everybody does. And so I'm going to ask you to really do, you know, to decide the case. Figure out what you believe the facts are. And without fear or favor or bias or sympathy, once you decide the facts and apply the law, then you will decide whether or not Mr. Spencer is even [sic] guilty or not guilty.”

The court then asked the juror whether she could decide what the facts are and she responded “yes.” The court then asked whether she would apply the law as “I give it to you” and the juror replied that she would. The court then made the following statement and sent the juror back to join the other jurors:

“THE COURT: I understand what you're saying. But you're capable of deciding, on your own, what the facts are. And once you do that, once you do that, then its your job to apply the law to the facts. And come to a decision based on the [135 A.D.3d 610] law and the facts and that's what you promised to do. So I'm going to ask you to try to do that ...”

After juror number one had left the courtroom, defense counsel immediately moved for a mistrial, claiming that juror number one was grossly unqualified (CPL § 270.351 ). The court, stating that it was “not prepared, at this time to grant a mistrial” denied the motion, but asked defense counsel, “[I]s there anything you feel I should ask her further?” to which defense counsel answered, “No.” The trial court then offered to give the jurors an Allen charge, but both attorneys objected. The People's objection was on the basis that they had not asked for it, and defense counsel's objection was “You already said it.” The court had all the jurors brought in and gave them the following additional instruction:

“THE COURT: What I'm going to ask you to do is I'm going to ask you to continue to apply the law to the facts as you find the facts without fear or favor or bias or sympathy of any kind that's your job. An I'm going to ask you to do that. So I'm going to ask you to return to the jury room and resume your deliberations. And if something occurs to you that you think will be helpful, because that's what you promised to do and I'm going to really hold you to that promise. That you will decide this case on the facts as you find them; the law as I've told you; without fear or favor or sympathy or bias, okay.”

Without prompting, juror number one responded, “I have no choice,” and the court agreed: “That's true, okay, thank you very much.” The jurors were sent back to deliberate. Outside the presence of the jurors, the court encouraged both sides to discuss the possibility of resolving the case with a plea. Later that afternoon, however, the jury notified the court it had reached a verdict.

After a juror is sworn in, the juror should be disqualified only “when it becomes obvious that [the] juror possesses a state of mind which would prevent the rendering of an impartial verdict” (CPL § 270.351; People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 1987; People v. Watson, 243 A.D.2d 426, 663 N.Y.S.2d 564 1st Dept.1997, lv. denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454 1998 ). The trial court properly concluded, based upon its observations

24 N.Y.S.3d 51

of the juror and its interactions with her, that she was not grossly unqualified from continuing to serve (CPL § 270.351; Buford, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901). Contrary to how the dissent characterizes the trial court's interactions with the juror, the colloquy, consisting of some 10 transcribed pages, shows that the court patiently listened to the juror and tactfully asked her probing questions to determine whether, for some reason, she could not be impartial (see

135 A.D.3d 611

People v. Sanchez, 99 N.Y.2d 622, 760 N.Y.S.2d 391, 790 N.E.2d 766 2003 ). She was candid in her responses and forthright about her concerns. None of her concerns had to do with fear about her personal safety (see People v. Ward, 129 A.D.3d 492, 493–494, 13 N.Y.S.3d 9 1st Dept.2015 [juror afraid of reprisal from defendant's accomplices], lv. denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 2015 ), nor did she express any concerns about feeling coerced by her fellow jurors to vote in any particular way (see People v. Alvarez, 86 N.Y.2d 761, 763, 631 N.Y.S.2d 130, 655 N.E.2d 171 1995 ). The juror never expressed an inability to deliberate fairly and render an impartial verdict, nor did she make any statements that could be taken as evidence of bias or sympathy either towards the deceased or the defendant that would have prevented her from deciding defendant's guilt or innocence. The juror only said that she was having difficulty separating her emotions, not that she was incapable of deciding the facts or applying the law, or that she would disobey the court's instructions.

After the court listened to her concerns, and reassured her that she could do the job that she had taken an oath to do, the juror told the court...