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A Brooklyn, N.Y., judge who offered a criminal defendant a last-minute “game show” choice – hear a jury’s verdict or accept the judge’s finding of guilt and a shorter prison sentence – has been reprimanded by the Appellate Division, 2nd Department. The unusual circumstances in People v. Nicholson played out in the courtroom of Acting Supreme Court Justice Joel M. Goldberg in October 2004. At the conclusion of Damian Nicholson’s robbery trial, the jury, on its first day of deliberations, told Goldberg that it was deadlocked. It was 3:30 p.m. on Friday and one juror had to leave at 4 p.m. for an appointment. A juror could not return on Monday, so deliberations would have to wait until Tuesday. Goldberg told the jury to continue deliberating, but he had another proposition for Nicholson: He could waive his right to a jury trial and accept the judge’s verdict of guilty on a lesser-included offense, third-degree robbery. Accepting the judge’s verdict would mean one year in prison; a guilty finding by the jury would result in a minimum of five years in prison. The jury then informed Goldberg that it had reached a verdict. The judge gave Nicholson a few moments to speak to his attorney and his mother, but not much more. “I hate to say this is a game show,” Goldberg said. He added, “So five minutes to four I don’t know what to say but the options are yours.” In another colloquy, the judge said: “Although it’s not much time to think about it, I can’t keep the jury waiting much longer. If you say you want to get the verdict, that’s fine. But if you say you want to waive the jury and have me essentially reach a verdict, you will have to do it now.” Nicholson chose to accept the judge’s verdict, to which the judge responded, “To some extent I am uncomfortable myself about doing this knowing that the jury has reached a verdict.” He added: “If I hear by word of mouth that the verdict is not guilty I am still going to sentence you to one year and I can always say this guilty verdict was based on time pressure rather than one really thinking it through.” Nicholson’s trial attorney, Susan Mitchell, later learned the jury would have acquitted her client. Nicholson’s sentence was reduced to 11 months after a motion and he served all of it. On appeal, the 2nd Department reversed the judgment in the interest of justice and said Nicholson could not be retried. The court said Goldberg’s bargain was “improper” and “coercive.” “While the trial court was authorized to promise to impose a minimum sentence if the defendant opted for a nonjury trial, no authority existed for the trial court to prematurely determine guilt and the sentence as a condition of the waiver,” the unanimous court wrote in an unsigned opinion. The court said Goldberg had “warned and frightened” Nicholson into waiving a jury trial when the judge declared, “I heard the testimony in this case and in good conscience I do not have any trouble finding the defendant guilty of participating in the crime.” Nicholson, now 25, was accused of participating in the gunpoint robbery of a 67-year-old man in September 2003. Two other men pleaded guilty to the crime; Nicholson allegedly acted as a lookout as the other two defendants pushed the victim to the ground, pinned him and stole $39. Tonya Plank of Appellate Advocates, who represented Nicholson on appeal, said she was pleased the conviction would be removed from Nicholson’s record. “The whole thing was so odd,” Plank said. “I’ve never seen anything like that before.” This article originally appeared in the New York Law Journal, a publication of ALM.

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