THE PEOPLE &C., RESPONDENT, v. ABDUL KHALEK, APPELLANT.
91 N.Y.2d 838, 689 N.E.2d 914, 666 N.Y.S.2d 1020 (1997).
December 2, 1997
2 No. 231
(97 NY Int. 0213)
Decided December 2, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Submitted by Leon H. Tracy, for appellant.
Ann Bordley, for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, and the case
remitted to that court for consideration of the facts ( see, CPL
470.25(2)(d); 470.40(2)(b)).
After the court informed the jurors to cease deliberating for the
evening on March 22, 1995, and while the jurors were retrieving their
personal belongings from thedeliberation room, one or more jurors
asked a court officer to inform the judge that a verdict had been
reached. The markings on a verdict sheet indicated that the jurors had
found defendant not guilty on all counts of the indictment. In
response, the court officer repeated the court's earlier instructions
that the jury was to cease deliberations and would be sequestered for
the night. The court officer's supervisor told the jurors, without
having first attempted to contact the court, that they would not be
permitted to deliver their verdict until the next morning. A juror
then stated that if the verdict could not be accepted that evening,
there would be no verdict. After being sequestered for the night, the
jury continued with deliberations the following morning, and
ultimately acquitted defendant of one count of rape in the first
degree, and two counts of sexual abuse in the first degree, but found
him guilty of one count of sexual abuse in the first degree.
We disagree with the Appellate Division's conclusion that the court
officers' communication with the jury on the evening of March 22, 1995
constituted the mere enforcement of the court's directives, and thus
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. ABDUL KHALEK, APPELLANT.
This opinion is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be reversed, and the case remitted to that court
After the court informed the jurors to cease deliberating for the evening on March 22, 1995,
the court officer repeated the court's earlier instructions that the jury was to cease
The court officer's supervisor told the jurors, without having first attempted to contact the
After being sequestered for the night, the jury continued with deliberations the following
We disagree with the Appellate Division's conclusion that the court officers' communication
Although the first officer repeated the court's prior instructions to cease deliberations,
the supervisor's remark did not reflect the court's prior instructions which could not have
Had the court been informed of the verdict, it could have chosen to immediately determine if
Thus, the supervisor's chosen course exceeded his ministerial duties and the scope of
This trial error of law warranted a grant of defendant's motion to set aside the final
However, since the jury later acquitted defendant of one count of rape and two counts of
Defendant is entitled to a new trial on count 4 of the indictment upon which the jury found
Order reversed and case remitted to the Appellate Division, Second Department, for further
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