        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1199
KA 08-02020
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRONE L. MEMBERS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (ERIC M. DOLAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered August 15, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts), criminal possession of a weapon in the second degree (four
counts) and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, two counts of murder in the second degree
(Penal Law § 125.25 [1]), defendant contends that County Court
improperly accepted the verdict from 11 jurors. Shortly before 6:00
p.m. on a Friday, after the parties were released for a dinner break,
the jury sent a note to the court indicating that it had reached a
verdict. The jurors’ dinners arrived and within minutes the jurors
knocked on the locked door vigorously when one of the jurors
experienced a seizure. That juror was rushed to the hospital. When
the parties thereafter reassembled in the courtroom, defendant
objected to the substitution of an alternate juror and moved for a
mistrial. The court, over the objection of defendant, took the
verdict of guilty from the remaining 11 jurors, polled them, accepted
their verdict, and directed that they return on Monday morning to
ascertain whether the missing juror had rendered the same verdict.

     Over the weekend, the court contacted the missing juror and on
Monday relayed to counsel the substance of its ex parte conversations
with that juror. Defendant renewed his motion for a mistrial. In the
presence of the full jury, the court set forth the events of Friday
evening and explained what had transpired: “I brought the jury back
and went through kind of a questioning of each of the jurors as a
group and individually. I took the verdict. Had the foreman announce
                                 -2-                          1199
                                                         KA 08-02020

the verdict to the jury . . . And the foreman of the jury indicated
that the verdict of the jury was guilty on all counts, all 7 charges
in the indictment.” The court asked the attorneys if that was a
correct representation, and they agreed. Then the court asked the
missing juror if that was his verdict, to which he replied, “Yes.” At
defendant’s request, the jurors reaffirmed their verdict on all
counts.

     The court’s attempt to avoid a mistrial at the conclusion of this
double homicide trial is understandable. However, “under our State
Constitution a person accused of a crime is entitled to determination
by a jury of 12” (People v Page, 88 NY2d 1, 5; see NY Const, art I, §
2), unless he or she waives that constitutional right in writing and
in open court (see People v Gajadhar, 9 NY3d 438, 441). It is
undisputed that defendant did not waive that right here.
Additionally, the verdict must be unanimous (see People v Garvin, 90
AD2d 682, 683; see also People v DeCillis, 14 NY2d 203, 205). “The
verdict of a juror should be free and untrammeled . . . [and] the
court must not attempt to coerce or compel the jury to agree upon a
particular verdict, or any verdict” (People v Faber, 199 NY 256, 259;
see People v LaValle, 3 NY3d 88, 124). Moreover, when “the trial
court record[s] and accept[s] the verdict, the verdict [becomes] final
and binding” (People v Johnson, 287 AD2d 274, 274, lv denied 97 NY2d
705; see CPL 310.80; see also People v Khalek, 91 NY2d 838, 840).

     We conclude that the court erred in accepting the verdict from 11
jurors. When the juror became unavailable, the court could have
recessed the proceeding over the weekend and reconvened on Monday for
the rendition of the verdict (see People v Monroig, 223 AD2d 730, 731,
lv denied 88 NY2d 1022; People v Webster, 205 AD2d 312, 312, lv denied
84 NY2d 834). Alternatively, the court could have inquired whether
defendant would waive in open court and in writing his constitutional
right to be judged by 12 jurors (see Gajadhar, 9 NY3d at 441). Either
postponement of the rendition of the verdict or defendant’s written
waiver pursuant to Gajadhar would have avoided the result we must
reach. The judgment of conviction must be reversed and a new trial
granted.

     In view of the fact that we are granting a new trial, we need not
address defendant’s remaining contention regarding the court’s ex
parte communications with the ill juror.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
