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Jurors may be released from sequestration in the middle of deliberations, even without the criminal defendant’s consent, if the trial court has installed safeguards against prejudice, a Bronx Supreme Court justice has ruled in a case of first impression. Acting Justice Troy K. Webber said that a deadlocked jury could be sent home for a weekend when it could not reconvene since a lawyer in the case was observing a religious holiday. Moreover, the judge said, convenient accommodations could not be secured for the jurors since hotels normally used for that purpose were all booked for the World Series between the New York Mets and New York Yankees. After three days of deliberations in People v. Pena, 4857/99, the jury reported to Justice Webber on Friday afternoon, Oct. 20, that it was “hopelessly deadlocked” in its deliberations in a carjacking case. One of the defendants was represented by a lawyer who told the court that he could not return to court until sundown on Sunday because of his observance of the Sabbath and the holiday of Simchat Torah. When Webber suggested that the jurors be let out of sequestration for two days, defense counsel objected, arguing that de-sequestration would be prejudicial to their clients. Webber made the decision to de-sequester the jury for the weekend, and wrote a reported opinion to illustrate her reasoning in taking the unusual step. “In making its determination, this court considered the integrity of the deliberation process as well as possible prejudice to the defendants in separating the jury for the weekend,” Webber wrote. Since the case had not drawn media attention, there was little chance for concern about extraneous influences affecting the jurors, she said. Also, the prior good behavior of the jurors convinced her there would be no attempts at improper contact or collusion among jurors. INTEGRITY PARAMOUNT Also, Webber reasoned, there was a danger in compelling the jurors to remain at a hotel for nearly three days (until Monday morning) with nothing to do. “Had there been the possibility of some [formal] deliberations, this court would not have considered separation,” she wrote. She added that enforced idleness would have been “pointless and arbitrary” and would have caused “needless inconvenience,” as well as the chance that the jurors may have come to an unduly hasty verdict. Moreover, she found, the objections from defense counsel were not fleshed out by specific claims of prejudice. Since jury sequestration, required under Criminal Procedure Law Section 310.10 in serious felony or violent felony case, is a creature of statute and not a fundamental right of the defendant, courts have retained the right to depart from sequestration for religious observance and other reasons. Webber said that de-sequestration may be ordered, over the objection of a defendant, to preserve the essential function of the jury trial. “Paramount … is whether the integrity of the deliberation process has been or will be compromised,” she wrote. In this case, the danger to the integrity of deliberations was greater from a rushed verdict to avoid weekend sequestration or a mistrial, Webber concluded. There was less danger to the deliberative process with the jurors being sent home after an admonition against considering the case, she said. The jurors returned to deliberate on Monday morning and eventually arrived at unanimous verdicts on Wednesday, Oct. 24. Defendant Eulogio Pena was convicted of first-degree robbery and related charges. Defendant Ivan Cabrerra was acquitted of all of the robbery counts against him. Pena was represented by Mara Maradoff of the Legal Aid Society in the Bronx. Cabrerra’s defense counsel was Michael Gottlieb of the Bronx. Sandra B. Suweidan, a Bronx Assistant District Attorney, handled the prosecution.

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