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THE MAJORITY CONCLUDED JUROR 15 WAS ONE OF TWO JURORS WHO GAVE A NON-VERBAL ASSURANCE HE WOULD NOT HOLD IT AGAINST THE DEFENDANT IF HE DID NOT TESTIFY; THE DISSENT ARGUED THE RECORD DOES NOT IDENTIFY JUROR 15 AS ONE OF THE TWO JURORS AND DID NOT DESCRIBE THE NATURE OF THE NON-VERBAL ASSURANCE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that a juror gave a non-verbal assurance that he would not hold it against the defendant if he did not testify. The dissent argued the record did not clearly indicate which jurors gave the non-verbal assurance:

We disagree with the dissent that “[t]here is no indication in the record that prospective juror number 15 was one of the two prospective jurors who were acknowledged by the court as having given some form of nonverbal assurance that they could follow its instructions.” Only three prospective jurors were questioned by defense counsel regarding their desire to hear from defendant. In response to the court’s follow-up questions, one prospective juror unequivocally indicated that he could not follow the court’s instructions regarding defendant’s failure to testify, and the court went on to ask, “[o]kay, anyone else? Can you follow that instruction whether you believe in it or not? I mean, obviously we talked about this. You both can? Okay. All right, thanks” … . Having already spoken to one of the three prospective jurors, it is clear that the court was addressing the remaining two prospective jurors who had expressed a desire to hear from defendant—including prospective juror number 15. Furthermore, in denying defense counsel’s for-cause challenge, the court stated on the record that both prospective juror number 15 and prospective juror number 16 “said they could follow [its] instructions. I asked them exactly on that . . . but they said no, they could follow it.”

From the dissent:

There is no indication in the record that prospective juror number 15 was one of the two prospective jurors who were acknowledged by the court as having given some form of a nonverbal assurance that they could follow its instruction, and the nature of the nonverbal assurance provided by those prospective jurors is not identified in the record. People v Smith, 2021 NY Slip Op 07406, Fourth Dept 12-23-21

 

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