A trial judge’s failure to follow up on reports that a juror in a robbery case was flirting with a defendant’s wife and a co-defendant’s daughter, and that he apparently expressed an opinion about the case before the trial concluded, has prompted an appellate panel to topple the conviction.
The Appellate Division, Second Department, said Queens Supreme Court Justice Kenneth Holder (See Profile) should have questioned the juror in camera, as the defense requested.
In People v. Henry, 2012-07204, the defendant’s wife informed the court that a juror told her during a recess that “the evidence speaks for itself” or the suspects “got themsel[ves] into this situation.”
Although the defense asked Holder to question the juror, Holder refused, and instead admonished the jury as a group to keep an open mind and asked generally if any of the jurors had changed their mind about their ability to be impartial.
During deliberations, attorneys for the defendant and co-defendant both moved for a mistrial after learning that a juror, apparently the same one who had spoken to the defendant’s wife, appeared to be flirting with the defendant’s wife and the co-defendant’s daughter.
The Second Department said in an unsigned opinion that Holder failed to conduct the “probing and tactful inquiry” required under People v. Buford, 69 NY2d 290 (1987) and reversed the defendant’s convictions for first and second-degree robbery, criminal possession of a weapon and criminal possession of stolen property. On the panel were justices L. Priscilla Hall (See Profile), Sheri Roman (See Profile), Colleen Duffy (See Profile) and Hector LaSalle (See Profile).
Bryan Kreykes of Appellate Advocates argued for the defendant. Queens assistant district attorneys John Castellano, Nicoletta Caferri and Nancy Fitzpatrick Talcott appeared for the prosecution.