This week, the Second Department reversed a defendant's conviction for Criminal Possession of a Weapon in the Third Degree. In People v. Cassell (2d Dept. 5/26/2009), a case out of Kings County, a juror informed a court officer that she did not want to continue deliberations and that she wanted to go home. The court officer escorted her outside. The judge's law clerk informed the court officer to bring the juror back into the jury room to continue deliberations. The court officer told the juror that she would have to continue deliberations and "I don't think you're going to be going home." The juror complied. Ten minutes later, the jury returned a guilty verdict.
The court reversed:
While a court officer can communicate with the jury during deliberations in connection with his or her administerial duty (see CPL
310.10[1]), the court officer's communication here conveyed a legal
instruction to the juror regarding her duty and obligation to continue
deliberating (see People v Torres, 72 NY2d 1007, 1008-1009; People v Ahmed, 66 NY2d 307, 312; People v Ciaccio, 47 NY2d 431, 437; People v Lara, 199 AD2d 419; People v Tucker, 182 AD2d 654]). This instruction should have been given to the juror directly by the trial court in the defendant's presence (see People v Bonaparte, 78 NY2d 26, 30; People v Rogoski, 194 AD2d 754, 755) and the trial court's failure to have done so is per se reversible (see People v Lara, 199 AD2d 419; People v Boyd, 166 AD2d 659). Additionally, it was error for the law clerk to assume a judicial function (see People v Ahmed, 66 NY2d at 311-312). Accordingly, the judgment of conviction must be reversed and a new trial ordered.
(LC)
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