The Uncomfortable Jury Foreperson

New York’s Criminal Procedure Law § 310.30 contains a certain procedure when a court receives a note from a jury during deliberations. It generally requires that when a court receives a note from the jury, it must return the jury to the courtroom and, after notice to both the people and defendant’s counsel, and in the presence of the defendant, the court must deal with the note as it deems proper.

Yesterday in People v Figueroa, 2008 NY Slip Op 01604, the First Department was confronted with whether the trial court violated the procedure in CPL § 310.30 after receiving a somewhat unusual note from the jury foreperson.

After the jury had sent a note indicating that it had reached a verdict, the foreperson sent a personal note to the court indicating that he did not feel “comfortable” about reading the verdict. The court inquired of the foreperson about the meaning of the note, outside the presence of defendant, his codefendant or any of the attorneys. Subsequently, the court informed counsel of the note, and related that during the inquiry, no mention of the verdict itself was made. Instead, the foreperson stated that he was uneasy about having to read the verdict out loud in some sort of narrative form. The court related to counsel that when it assured the foreperson he would only have to answer the clerk’s questions, the foreperson, who had not served on a jury before, was “relieved” and satisfied. In response to the prosecutor’s question, the court stated that the foreperson never indicated any discomfort with the verdict itself, which was simply not discussed. Neither defendant objected to this procedure or sought a further inquiry of the foreperson. The jury then rendered its verdict, and, when individually polled, each juror including the foreperson agreed with it.

Subsequent to trial, the codefendant moved to set aside the verdict on the ground that the court failed to follow the procedure set forth in CPL § 310.30, specifically in that he was absent when the court responded to the note. The foreperson signed an affidavit, which was obviously drafted by an attorney, in which he claimed that other jurors had coerced his verdict, and that he had communicated to the court that this was why he was uncomfortable announcing the verdict. However, during the course of a CPL § 330.30 hearing, the foreperson conceded that he had never communicated to the court any discomfort with the substance of the verdict, but only with the process of reading it out loud. Thus, he essentially corroborated the court’s version of the colloquy. The court, treating the motion as the motion of both parties, ruled that it had acted only ministerially, that defendants had waived any challenge, and that there was no basis to set aside the verdict.

The First Department agreed with trial court’s ruling on the motion and refused to set aside the verdict. While the defendant argued that his presence was necessary and that counsel’s presence would have elicited from the foreperson a better articulation of why he was “uncomfortable,” the First Department found that the only reasonable conclusion was that the trial court’s interaction with the foreperson, involving only the mechanism by which the foreman would announce the verdict, was entirely ministerial. The First Department stated the trial court simply clarified what the foreperson meant by being uncomfortable, and it did not discuss anything about the law, the facts of the case or the verdict. Thus, neither the defendant nor his attorney could have made a meaningful contribution, so their presence was not required. The First Department added that since the trial court’s action was only ministerial and did not fall within its core responsibilities in responding to a jury note, the defendant was required to request a further inquiry of the foreperson or otherwise preserve a claim of error, which he failed to do.

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