People v. Troche

• Decision Date: 21 January 1958
• Citation: 9 Misc.2d 452,172 N.Y.S.2d 872
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Nelson S. TROCHE, George W. Kahler, Jr., and James J. Long, Jr., Defendants.
• Court: New York County Court

Page 872

172 N.Y.S.2d 872

9 Misc.2d 452

The PEOPLE of the State of New York, Plaintiff, v. Nelson S. TROCHE, George W. Kahler, Jr., and James J. Long Jr., Defendants.

Albany County Court.

Jan. 21, 1958.

George M. Meyl, District Attorney (Philip Coffey, Jr., and John T. Garry, 2nd, Albany, of counsel), for plaintiff.

Manuel Zapata, New York City, for defendant Nelson A. Troche.

Manuel Zapata, New York City, and John T. De Graff, Jr., Albany, for defendant George W. Kahler, Jr.

Benjamin Ungerman, Albany, for defendants James J. Long, Jr. MARTIN SCHENCK, Judge.

These three defendants were indicted for the crime of robbery in the first degree. The alleged victim died on the morning on which the People contend that the crime was committed. The three defendants were arrested several months later and were charged with the crime of murder in the first degree. When their respective cases were presented to the Grand Jury, however, they were indicted for robbery in the first degree. Following a trial which lasted three weeks, the jury brought verdicts of guilty of robbery in the second degree against the defendants Troche and Kahler. In the case of the defendant Long, the verdicts was guilty of robbery in the third degree. Motions are now addressed to the court challenging the verdicts as being inconsistent, in violation of the court's instructions to the jury, and against the weight of evidence.

The court charged the jury that, if two or more of the defendants were found guilty, they should be so found in the same degree. The court, however, in citing an example upon this point, stated in effect as follows: 'For example, you cannot find one Defendant guilty of Robbery in the First Degree and another guilty of Robbery in the Second Degree'. The court never specifically cited an example with respect to the proposition that the jury should not find one or more of the defendants guilty of robbery in the second degree and one guilty of robbery in the third degree. The charge was necessarily long and complicated because of the numerous points of law involved, and also because of the tremendous volume of testimony which had to be reviewed. The charge took about an hour and a half for delivery. In the course of hearing this lengthy charge, the jury apparently became confused or forgot the admonition that verdicts of guilty should be in the same degree. The question now presented deals with the effect of these verdicts of varying degrees of guilt.

It seems obvious that the jury was endeavoring to afford leniency to the defendant Long. Nevertheless, they did find him guilty of robbery, although their verdict was in a degree lower than the verdict against the other two defendants. It is clear that the jury could have acquitted Long while finding the other two defendants guilty of robbery in the second degree. The question is accordingly raised as to whether any of the three defendants have been prejudiced by the verdicts. There would be no question at all upon this point if the jury had convicted Kahler and Troche of robbery in the second degree while acquitting Long. It is, therefore, impossible to see how Kahler and Troche have been prejudiced in any respect, merely because Long was not acquitted, but was found guilty in a lower degree. Furthermore, it would seem clear from the evidence, in the light of the jury's verdicts against Kahler and Troche, that they might well have found Long guilty of robbery in the second degree. How, then, has Long been prejudiced by the jury affording him the benefit of a conviction in a lower degree? I can see no prejudice in his case either. It would, therefore, seem clear that none of the three defendants have been prejudiced by these verdicts of guilty in varying degrees.

Having reached the conclusion that the verdicts have not prejudiced any of the defendants, the next point to be determined deals with the legal effect of the verdicts in the light of the court's charge. If the court had not attempted to charge that verdicts of guilty should be in the same degree, there is no question but that verdicts in different degrees with respect to different defendants would have been proper and valid. The case of People v. Cohen, 223 N.Y. 406, 119 N.E. 886, holds squarely to this effect. The court there said, 223 N.Y. at pages 429-430, 119 N.E. at page 893: 'Complaint is made that the verdict of the jury is illogical, in that, while it convicted the defendant of murder in the first degree, it convicted Graff, a codefendant, who, if guilty at all, was equally guilty with Cohen, only of manslaughter in the first degree. That the jury failed to do their duty towards Graff is no reason for reversing the verdict which they found against Cohen. Why they made the distinction in favor of Graff we do not know. It cannot be explained upon the record. The jury saw the two men, however, and it is possible that something in Graff's attitude or condition may have inclined it to mercy in his case. Juries do forget, at times, that the question of mercy is something with which they should have no concern.' In the light of this holding and in view of the lack of prejudice, I fail to see any basis for disturbing these verdicts merely because in the course of an hour and a half charge the jury overlooked one of the points of law that the court thought should be stated. The court could have sent the jury back to reconsider the verdicts under section 447 of the Code of Criminal Procedure. That course, however, would clearly have opened the door to possible prejudice and very likely would have resulted in a miscarriage of justice. The only thing that the jury could have done, if sent back for further consideration would be either to acquit Long or drop the verdicts against the other two defendants to robbery in the third degree. Furthermore, the procedure of reconsideration indicated by section 447 was not followed in the Cohen case, supra. There, the jury first passed upon the cases of three of four defendants and reported their verdicts. They acquitted two defendants and found one guilty of murder in the first degree. The court, thereafter directed the jury to deliberate further on the fourth case. Thereupon, the jury returned with a verdict of guilty of manslaughter in the first degree against the fourth defendant. The court did not direct a reconsideration of this verdict, even though it was termed 'inconsistent' with the verdict of guilty of murder in the first degree which was brought in against Cohen. The Court of Appeals, in affirming Cohen's conviction, at least condoned the procedure by the trial court in receiving the two verdicts in varying degrees.

As a practical proposition, the difference in the two degrees of guilty found in the case at hand is much less than the difference in degrees found in the Cohen case. The only difference here is with respect to the punishment which may be imposed, for robbery in the second degree on one hand and robbery in the third degree on the other. In the case of first offenders, such as are involved here, there is no minimum in either case and a 15-year maximum in one instance and a 10-year maximum in the other. In the Cohen case, of course, one of the so-called 'inconsistent' verdicts provided for the death penalty. As a practical proposition, this court recognizes that the jury should not have endeavored to exercise leniency in punishment with respect to one of these defendants. It is, therefore, the intention of this court in sentencing Kahler and Troche to regard their cases precisely as if they had been found guilty of robbery in the third degree. The jury exercised leniency in the Long case, so that the court, in the interest of justice, will exercise the same degree of leniency in passing sentence upon the other two defendants.

The defendants have attempted to distinguish this case from the Cohen case, which, otherwise, would seem beyond question to uphold these verdicts, on the ground that the jury did not follow the instructions of the court. As already indicated above, the charge was long and undoubtedly complicated from a layman's viewpoint. It would be a manifest absurdity to say that a jury of laymen can absorb such a charge and pass upon a case without in some way unconsciously violating at least a few points covered by the court's instructions. It so happens that these verdicts reflected openly a misunderstanding on one point of the charge. In the total absence of prejudice, however, that does not impress me as amounting to more than a technicality. As a matter of fact, the court need not have charged that all guilty verdicts should be in the same degree. The purpose of that portion of the charge was to deter the jury from attempting to exercise leniency with respect to one of the defendants as against the others. In the Cohen case the jury was instructed that punishment was no concern of theirs. Nevertheless, they exercised a far greater degree of differentiation between two codefendants than the jury did in the case before us. Commenting upon this point, the Court of Appeals said in the Cohen case, 223 N.Y. at page 430, 119 N.E. at page 893: 'Juries do forget, at times, that the question of mercy is something with which they should have no concern'. The Court of Appeals recognized, as this court now recognizes, that juries have in the past and will continue in the future to exercise leniency in many cases, even though they are convinced of a defendant's guilty and have been specifically told that punishment and the exercise of leniency are not within their province. Such action by juries is inherent in human nature and will remain so as long as we have our jury system which has worked so well in criminal cases throughout the history of our jurisprudence.

It follows that, although the jury did not literally follow the law given by the court in its charge, its only violation upon the point under consideration was to exercise leniency...