Opinion
September 30, 1991
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered. No questions of fact have been raised or considered.
The complainant and her companion were robbed at gunpoint on a Brooklyn street while walking home at approximately 9:00 P.M., on January 23, 1988. The defendant was subsequently arrested and charged with robbery in the first degree when the complainant identified him at a police lineup. The complainant's companion was unable to identify the defendant at the same lineup. At the trial, the complainant confirmed her identification of the defendant as the perpetrator of the crime. The defendant's wife testified in his behalf, and stated that he was at home with her and the rest of his family at the time of the robbery.
The trial court delivered a lengthy charge in which it instructed the jurors on the importance of harmonizing their views and avoiding emotions. In the midst of this charge, the court stated: "And when you examine it logically, if you were 12 computers, you'd all reach the same results because you all have the same knowledge of the case. None of you knows anything about the case more than the others. If you have 12 computers and they're all identically programmed and you push the verdict button, the verdict will be guilty."
A Trial Judge may not "`attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict'" (People v Pagan, 45 N.Y.2d 725, 726, quoting People v. Faber, 199 N.Y. 256, 259; see also, People v. Page, 47 N.Y.2d 968, 970, cert denied 444 U.S. 936). It is improper for a Trial Judge to "prod jurors through prejudicial innuendoes or coerce them with untoward pressure" to reach a verdict or a particular result (People v Pagan, supra, at 727; People v. Carter, 40 N.Y.2d 933, 934).
Under the circumstances of this one-witness identification case, where the jury was only able to reach a verdict after two days of deliberations and numerous readbacks of testimony, we find that the court's computer analogy and corresponding statement that "the verdict will be guilty" may have had a significant coercive effect on the jury. Moreover, we note that both this court and the Court of Appeals have previously expressed dissatisfaction with lengthy predeliberation charges of the type given by this trial court (see, People v. McGee, 76 N.Y.2d 764; People v. Speights, 151 A.D.2d 793).
In addition, during its identification charge, the trial court posed a hypothetical situation to the jurors where an eyewitness was able to identify a stranger after making eye contact with him and remembering the song "Some Enchanted Evening" from the musical "South Pacific". We find that this hypothetical situation was diversionary, potentially coercive, and minimized the seriousness of the task which the jurors were called upon to perform (see, People v. Lane, 143 A.D.2d 581; People v. Hodge, 141 A.D.2d 843; People v. Davis, 73 A.D.2d 693). Jury instructions in the trial of a criminal offense are not the place for judicial innovation (see, People v. Owens, 69 N.Y.2d 585, 589).
Although these errors are unpreserved for appellate review, we find their combined effect so egregious as to have deprived the defendant of a fair trial. We therefore reverse the defendant's conviction, and order a new trial in the interest of justice. Harwood, J.P., Lawrence, Eiber and Balletta, JJ., concur.