The First Department reviewed a conviction and did not find harmless error to uphold the conviction. Here, the “Defendant’s right of confrontation was violated by testimonial hearsay evidence that went beyond the permissible scope of explanatory background material….Defendant was further deprived of his right to a fair trial by other portions of the prosecutor’s summation…The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial…[therefore,] [t[he totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict.” People v DeJesus, 2015 NY Slip Op 08959 (1st Dep’t. Dec. 8, 2015). What happened here?
Among the problems stated by the First Department in reaching their decision, I focus on one in particular:
During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days (see People v Aponte, 2 NY3d 304, 308-309  [trial court improperly stated, among other things, that it was “nowhere near” the point when it would find a hung jury, where deliberation had lasted two days]). The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system (see People v Huarotte, 134 AD2d 166, 170-171 [1st Dept 1987]; see also Aponte, 2 NY3d at 308 [finding reversible error where, among other things,Allen charge “suggested that the jurors were failing in their duty”]). Pp. 1-2 (external quotation marks omitted and internal citations and quotations preserved).
In light of other criminal cases coming out of the Bronx (e.g. Kalief Browder), it is important to emphasize the neutral role the judge is to play while making sure the rights of the defendant are not violated by the prosecutor. In this case, the First Department concluded that “there is a significant probability that defendant would have been acquitted if not for the violation of his right of confrontation, the prosecutor’s improper statements in summation, and the court’s improper statements during deliberation.” Pp. 2 (citing People v Crimmins, 36 NY2d 230, 242 (1975)). The case is People v DeJesus, 2015 NY Slip Op 08959, (1st Dep’t. Dec. 8, 2015). A new trial was ordered. The case is People v DeJesus, 2015 NY Slip Op 08959.