Opinion
2017NY011846
01-12-2018
The PEOPLE of the State of New York, Plaintiff, v. Marquis OLDHAM, Defendant.
Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By Assistant District Attorney Matthew Thiman, (212) 335–9000, For the People Seymour W. James, Jr., Esq, The Legal Aid Society, 49 Thomas Street, New York, NY 10013, By Arthur Mendola, Esq. and Jamie Niskanen–Singer, Esq., For the Defendant
Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By Assistant District Attorney Matthew Thiman, (212) 335–9000, For the People
Seymour W. James, Jr., Esq, The Legal Aid Society, 49 Thomas Street, New York, NY 10013, By Arthur Mendola, Esq. and Jamie Niskanen–Singer, Esq., For the Defendant
Curtis J. Farber, J.
Defendant Marquis Oldham moves, pursuant to CPL 330.30 (2), to set aside the jury verdict convicting him of the crime of Assault in the Third Degree ( Penal Law ["PL"] § 120.00 [1 ] ). Defendant contends that during deliberations, outside the presence of the Court, improper conduct occurred by a juror or jurors which rendered the verdict a product of coercion, requiring reversal of his conviction. The People oppose Defendant's motion, maintaining that Defendant's claims of juror impropriety relate solely to the tenor of the jury's deliberations, and therefore, are not a proper basis to set aside the verdict. Procedural History
At the commencement of the trial, Defendant stood charged with Assault in the Third Degree as well as the crime of Resisting Arrest (PL § 205.30). A jury was selected on October 5, 2017, and the case was adjourned to the following day for opening statements and further proceedings. On the morning of Friday, October 6, 2017, Defendant, who was incarcerated at Rikers Island, was not produced in court for his continued trial. Officials from the Department of Corrections advised the Court that Defendant had refused to comply with the directives of corrections officers who were attempting to transport him to the courthouse. They related that Defendant had been involved in a physical altercation with corrections officers, with the resultant deployment of a chemical agent to subdue him. After the Court concluded its investigation into Defendant's non-appearance, the jury was instructed that, for administrative reasons, the trial would not proceed until October 10th, because Monday, October 9th, was the Columbus Day holiday. On October 10, 2017, opening statements were heard and the People's direct case commenced. The parties rested on October 11, 2017, and the jury began its deliberations. Within ten minutes of being given the case, the Court received the first note from the jury. The jurors asked to hear the 911 tape recording, to review photographs in evidence, and to have readback of the testimony of two police officers. Due to the lateness of the hour (4:37 p.m.), and with the agreement of the parties, after the 911 call was replayed and the jurors reviewed the photographic evidence, the jury was discharged for the day. The jury was advised that readbacks would be provided the following morning. The jury was directed to return to court on October 12, 2017, at 11:00 a.m.
Defendant had previously been designated a behavioral at-risk inmate (called a "Red ID") due to alleged incidents of assaultive behavior while in custody. As a result, the start of the trial was delayed each day to enable Defendant to be produced separately from other inmates. Defendant was in custody on an unrelated charge of Murder in the Second Degree pending against him in another county, for which he was on remand status.
On the morning of October 12, 2017, the jury heard readback of the requested testimony. At about 12:30 p.m., the jury briefly resumed its deliberations. At 12:45 p.m., the jury sent out a note requesting definitions of resisting arrest and "effectuating an arrest." After the Court responded to this note, the jury was sent to lunch. At approximately 3:00 p.m., the jury sent out the verdict sheet instead of a note. Although the verdict sheet showed the jury had recorded a verdict for Count Two, Resisting Arrest, no verdict was recorded for Count One, Assault in the Third Degree. Instead, the jury had written: "5–guilty, 1–not guilty" in the box provided to record that verdict. The Court, after consulting with the prosecutor and counsel for Defendant, brought the jury into the courtroom and reminded them that their verdict must be unanimous. The Court advised the jury to simply write a note when they reached a verdict, and not to advise the Court as to how they were voting. The jury was provided with a new verdict sheet and directed to resume their deliberations.
At 3:27 p.m., the jury sent the Court a note indicating they had reached a verdict on the resisting arrest count, but could not come to an agreement on the assault count. Believing that the jury remained split five-to-one for a guilty verdict on the assault count, defense counsel asked the Court to take the partial verdict on the resisting arrest charge and declare a mistrial on the assault charge. The People asked the Court to give the jury an Allen charge.
Pursuant to CPL 310.70 (1)(b)(i), the Court agreed to accept the partial verdict and advised the parties it would give the jury an Allen charge on the remaining count. The jury was brought into the courtroom, and a verdict of not guilty on the resisting arrest count was entered. The standard deadlock charge from the Criminal Jury Instructions ("CJI 2d"), was read to the jury on the remaining count, which includes the language:
I want to emphasize that I am not asking a juror to violate his or her conscience, or to abandon his or her best judgment. Any verdict you reach must be the verdict of each juror, and not mere acquiescence in the conclusion of others, but I am asking you to continue deliberating and to resume your deliberations with an open mind.
At 5:25 p.m., the jury sent out a note, indicating they were "hopelessly deadlocked and cannot reach an agreement/verdict." The People asked the Court to repeat the Allen charge, while the defense moved for a mistrial. This Court informed the parties that due to the lateness of the hour it would send the jury home and give them a chance to resume deliberations the following day. The jury was brought into the courtroom and the Court acknowledged their hard work throughout the day. The Court apprised the jury that their deliberations should cease, that they should rest for the evening, and return the following day at 10:30 a.m.
Defense counsel argued that having the jury return for another day of deliberations would result in the trial continuing longer than the initial estimate, thereby putting pressure on the holdout juror to reach a verdict. However, defense counsel failed to take into account that the extension in the length of the trial was due, in significant part, to Defendant's failure to appear in court on October 6, 2017, causing an entire trial day to be lost. The jury was sent home without knowing the reason for the delay, ensuring they remained unaware that Defendant was in custody.
On October 13, 2017, the jury resumed its deliberations. At 11:22 a.m., a jury note was received asking the Court to: "(1) Restate the role of a juror (evaluate evidence, make judgment, etc.), (2) define ‘reasonable doubt,’ and (3) instruct the jury regarding "[w]hat is a juror allowed to factor in for consideration/exclude." The Court responded, in sum and substance, by advising the jury that it was up to them to decide which witnesses to believe or not believe, to decide how much of a witness's testimony to accept or reject, and to use their common sense to determine who is telling you the truth, who is not, and who is telling you something less than the full truth. The jury was next re-instructed on the definition of reasonable doubt. With regard to the third request in the note, the Court advised the jury that they were to determine the facts from the evidence alone, not to be governed or influenced by sympathy or prejudice before or against any party, and to base their verdict on the evidence and not upon speculation, guess or conjecture.
At 3:40 p.m., the jury sent out a note indicating they had reached a verdict. The jury returned to the courtroom and recorded a verdict of guilty on Count One, Assault in the Third Degree. At defense counsel's request, the jury was polled. Each of the six jurors individually affirmed their verdict of guilty.
CPL 330.30(2) Motion
Pursuant to CPL 330.30 (2), a motion to set aside a verdict may be granted upon the ground "[t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict."
In this case, defense counsel contends that outside of the presence of the Court, Juror No. 5 was verbally harassed by her fellow jurors because she was the sole juror voting in favor of acquittal on the assault count. Defense counsel argues that Juror No. 5 only changed her vote to guilty because she was mentally exhausted after being yelled at by the other jurors.
Attached to defense counsel's moving papers is a notarized statement by Juror No. 5, dated December 1, 2017, seven weeks after the jury's verdict. Within the document, Juror No. 5 contends that during deliberations, Juror No. 3 insulted her and yelled in her face. When she moved away from Juror No. 3 and sat at the other side of the table, she states that Juror No. 6 in turn verbally ridiculed her. Juror No. 6 and other jurors thereafter questioned her ability to be a juror. Juror No. 5 responded by saying: "why don't you send the judge a note asking the judge why I was picked as a juror." She maintains the jury refused to send such a note to the Court.
Juror No. 5's statement further alleges that to retaliate against her, the other jurors threatened to change their not-guilty vote on the resisting arrest charge to guilty. This threat was purportedly made after that verdict had already been recorded in open court. She further asserts that all of the jurors were angry with her because they wanted to get back to their jobs and their lives, and that she voted to convict on the assault charge because she was not willing to continue to be yelled at and insulted. Juror No. 5 never alleges that she was either physically assaulted or threatened with physical violence by any member of the jury.
Defendant's Mistrial Motions
The jurors had only briefly engaged in deliberations when they sent out a note indicating they had reached a verdict on the resisting count, but could not agree on the assault count. To aid the jury in its deliberations, the Court responded to the jury's note by reading the standard CJI 2d Allen charge. As the Allen charge itself indicates, it is not an uncommon occurrence for a jury to believe it will be unable to reach a unanimous verdict, yet, after further deliberations, most juries are able to reach a verdict. Thus, it would have been improvident to declare a mistrial at the first suggestion of discord among the jurors.
When, only two hours later, the jury sent out a note indicating it was deadlocked, it was not necessary for the Court to repeat the Allen charge, nor had the deliberations reached a stage where it was manifest that the jury would be unable to reach a verdict. Instead, the Court advised the jury to cease its deliberations for the evening. The jurors were allowed to go home and rest before resuming their deliberations the following day. Experience has shown that permitting a jury to take a break from deliberations and return with a fresh outlook, very often results in agreement between jurors, despite their initial belief that they will not be able to reach a unanimous verdict. As the CJI2d charge instructs, starting anew, with a fresh slate, while being open to the reasoning of others, is often an essential aid to the deliberation process. Thus, Defendant's renewed mistrial motion was deemed premature and was denied.
Recently, the Court of Appeals, in People v. Morgan , 28 N.Y.3d 516, 46 N.Y.S.3d 493, 68 N.E.3d 1224 (2016), addressed a similar situation to the one at hand. Morgan is instructive on the appropriate action for the trial court to take when faced with a jury which has reached a stalemate. In Morgan , on the second day of deliberations, the jury sent out a deadlock note. In response, the trial judge gave the jurors an Allen charge and directed them to resume their deliberations. Two hours later, the jury announced it had come to a verdict. However, when the jury was polled, it was revealed that the verdict was not, in fact, unanimous. Two of the jurors voiced their disagreement with a portion of the verdict. At this point, the judge denied defendant's motion for a mistrial. Instead, the judge reminded the jury that their verdict had to be unanimous, and directed them to resume deliberations. The judge declined defense counsel's subsequent request for additional instructions. The following day, the jury returned a verdict of guilty, and this time polling revealed the verdict was unanimous. Morgan determined that the trial judge's instruction on the need for unanimity, without repetition of the Allen charge, was proper and was not coercive. There was no need for the judge to remind the jurors that they should not surrender their views of the evidence simply because they want the trial to end or they are outvoted, as that admonition had been included in the court's instruction just two hours earlier, and the court's further instruction had not directed the jury that it had to reach a verdict. As in Morgan , this Court initially gave the jurors the Allen charge. Shortly thereafter, when their lack of unanimity was again placed before the Court, a break in deliberations, without a second Allen charge, was not coercive. Instead, it gave the jury a chance to start fresh and attempt to resolve their differences.
Verbal Disputes Are Not Sufficient to Impeach a Jury's Verdict
Defendant's current motion is centered on one juror's post-conviction statement contending she succumbed to the opinion of the other jurors, and voted guilty on the assault charge, because she was verbally insulted and disrespected during deliberations. Post-conviction examination of the deliberation process on the basis of these types of allegations has repeatedly been deemed inappropriate.
The general rule states that jurors may not impeach their own duly-rendered verdicts by complaints involving the tenor of the jury's deliberations. (See , People v. Brown , 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 [1979] ; People v. De Lucia , 20 N.Y.2d 275, 278, 282 N.Y.S.2d 526, 229 N.E.2d 211 [1967] ; People v. Brunson , 66 A.D.3d 594, 596, 888 N.Y.S.2d 22 [1st Dept. 2009], lv denied 13 N.Y.3d 937, 895 N.Y.S.2d 328, 922 N.E.2d 917 [2010] ; People v. Grant , 43 A.D.3d 800, 802, 843 N.Y.S.2d 214 [1st Dept. 2007], lv denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024 [2007] ; People v. South , 47 A.D.3d 734, 849 N.Y.S.2d 603 [2d Dept. 2008], lv denied 17 N.Y.3d 862, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ; People v. Scales , 121 A.D.2d 578, 503 N.Y.S.2d 629 [2d Dept. 1986], app denied 68 N.Y.2d 817, 507 N.Y.S.2d 1035, 499 N.E.2d 884 [1986] ).
In People v. De Lucia , 20 N.Y.2d at 278, 282 N.Y.S.2d 526, 229 N.E.2d 211, supra, the rational for this rule was explained as follows:
The policy reason for the present rule is, of course, that we do not wish to encourage the posttrial harassing of jurors for statements which might render their verdicts questionable. With regard to jury room deliberations, scarcely any verdict might
remain unassailable, if such statements were admissible. Common experience indicates that at times articulate jurors may intimidate the inarticulate,
the aggressive may unduly influence the docile. Some jurors may "throw in" when deliberations have reached an impasse. Others may attempt to compromise. Permitting jurors to testify regarding such occurrences would create chaos.
By design, the deliberation process encourages jurors to openly and honestly express their views. Emotions often run high, voices are frequently raised and heated arguments are not uncommon. After rendering a verdict, some jurors may have second thoughts or feel that they were pressured into reaching a verdict. They may contact trial counsels seeking to change their votes. However, such second thoughts are not a proper basis to invade the sanctity of the jury room.
The rule against examination of the inner workings of the deliberation process serves a number of important public-policy concerns which would be impaired if jurors, beset by lingering concerns they may have made a wrong decision, were allowed to take back their verdict after speaking to the trial lawyers. The rule ensures the finality of duly-rendered judgments. It prevents the post-trial harassment of jurors by guaranteeing the secrecy of the jury's discussions. Respecting the privacy of the deliberation process facilitates free and frank discussion among jurors, without fear of later being called upon to justify their opinions or the manner in which those opinions were expressed.
In People v. Redd , 164 A.D.2d 34, 561 N.Y.S.2d 439 (1st Dept. 1990), two trial jurors signed affidavits at defense counsel's office, six weeks after the guilty verdict, claiming they had only voted guilty because of intimidation and coercion by the foreperson and other jurors. Redd , referencing the long-standing rule that jury verdicts should not be impeached by affidavit or testimony of jurors after the verdict has been returned, agreed with the trial court's denial of the defendant's motion on these grounds, pointing out that most of the claims of coercion stemmed from escalated tempers and obscenities shouted by the foreman. "Such intense feelings and emotional manifestations often accompany the free and unfettered exchange of views that are the hallmark of the heightened atmosphere in which the jury's decision-making process takes place." ( Id. at 37, 561 N.Y.S.2d 439 ).
The conviction in Redd was reversed on a separate ground, involving an unauthorized visit to the crime scene by an alternate juror, who shared his observations and conclusions with other jurors.
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Because of these important policy concerns, except in rare situations involving serious misconduct, a duly-rendered verdict will not be revisited by allegations seeking to delve into the tenor of jury deliberations. ( People v. Testa , 61 N.Y.2d 1008, 1009, 475 N.Y.S.2d 371, 463 N.E.2d 1223 [1984] ["inquiry into the deliberative process for the purpose of impeaching a verdict should not be undertaken except in extraordinary circumstances"]; cf. , People v. Rukaj , 123 A.D.2d 277, 506 N.Y.S.2d 677 [1st Dept. 1986] ).
Accordingly, a trial court may deny a CPL 330.30 (2) motion, without holding a hearing, when, as herein, the motion is based solely upon allegations of verbal coercion. ( People v. Vincent , 48 A.D.3d 835, 851 N.Y.S.2d 361 [2nd Dept. 2008], lv denied 10 N.Y.3d 871, 860 N.Y.S.2d 498, 890 N.E.2d 261 [2008] ; People v. Gonzalez , 47 Misc.3d 137[A], 15 N.Y.S.3d 713 [App. Term 1st Dept. 2015], lv denied 25 N.Y.3d 1201, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ). In People v. Goode , 270 A.D.2d 144, 707 N.Y.S.2d 3 (1st Dept. 2000), lv denied 95 N.Y.2d 835, 713 N.Y.S.2d 142, 735 N.E.2d 422 (2000), the Appellate Division upheld the trial court's denial, without a hearing, of the defendant's motion to set aside the verdict based upon allegations of juror misconduct. Goode instructs that post-trial statements by a juror complaining of coercion by other jurors are not a proper basis to impeach a verdict, especially where the juror confirmed her verdict when the jury was polled. ( Id. at 145, 707 N.Y.S.2d 3 ).
In the instant case, the jury verdict of guilty was duly announced in court, and reaffirmed by the jurors individually, including Juror No. 5. Under these circumstances, defendant's request for a hearing on his motion is denied. (See , People v. Foti , 99 A.D.2d 517, 470 N.Y.S.2d 689 [2d Dept. 1984] ; see also , People v. Gonzalez , 47 Misc.3d 137[A], 15 N.Y.S.3d 713, supra [juror who confirmed his verdict when polled, cannot later be permitted to impugn the finality and integrity of the verdict by belated claims of coercion] ).
Claims that Juror No. 5 was pressured to change her vote because other jurors did not wish to continue deliberations to another day, are likewise insufficient to support the vacatur of the conviction. (See, e.g. , People v. Anderson , 249 A.D.2d 405, 671 N.Y.S.2d 149 [2d Dept. 1998], app denied 92 N.Y.2d 877, 678 N.Y.S.2d 25, 700 N.E.2d 563 [1998] [motion to set aside verdict properly denied where defendant sought to delve into tenor of jury's deliberation process based upon claims some jurors pressured and prevailed upon two other jurors to convict defendant in order to avoid further deliberations] ); People v. McKenzie , 173 A.D.2d 493, 570 N.Y.S.2d 300 [2d Dept. 1991]app denied 78 N.Y.2d 956, 573 N.Y.S.2d 652, 578 N.E.2d 450 [1991] [improper to delve into claim that some jurors pressured others in order to avoid sequestration] ).
Defendant cites to People v. Lavender , 117 A.D.2d 253, 502 N.Y.S.2d 439 (1st Dept. 1986), in support of his contention that the verdict should not stand. However, in Lavender , unlike the situation herein, allegations of improprieties within the jury room were brought to the court's attention prior to the rendition of the verdict and those allegations involved actual threats of physical violence. The juror involved sent out a note informing the court that another juror had come at her with fists drawn, and would have struck her if not held back by other jurors. The trial judge failed to respond to this note. The judge also failed to respond to two other jury notes complaining about the holdout juror, and seeking advise on how to proceed. Lavender pointed out that this was not a situation involving a statement obtained from a trial juror after the rendition of a guilty verdict, merely expressing "second thoughts." ( Id. at 256, 502 N.Y.S.2d 439 ).
Even when allegations of disputes between jurors are brought to the attention of the trial court while the jury is still deliberating, a court is not required to examine the jurors when those allegations relate solely to verbal arguments. In People v. Marshall , 106 A.D.3d 1, 961 N.Y.S.2d 447 (1st Dept. 2013), lv denied 21 N.Y.3d 1006, 971 N.Y.S.2d 258, 993 N.E.2d 1280 (2013), the First Department found no error in the trial court's denial of the defendant's motion for a mistrial after receipt of a jury note which stated that one of the jurors wished to be dismissed because the juror felt "personally threatened" by a "heated argument." The note did not allege any actual threats of physical violence. Marshall indicated it was within the trial court's discretion to give the jury supplemental instructions and a break from deliberations in response to such a note, without making inquiries of the jurors themselves. Further, Marshall found the trial court properly denied defendant's post-conviction CPL 440.10 motion, without a hearing, where the defendant's moving papers only contained claims that one juror addressed angry remarks to another juror, without actual threats of physical violence.
Defense counsel further argues that undue pressure was inherent in the Court's decision to order the continuation of deliberations when it was known that five jurors were voting guilty while only one juror was voting not guilty. However, a holdout juror is a common occurrence and it is not expected that a mistrial will be declared every time a jury note indicates a split, or even a single holdout juror. In fact, the Criminal Procedure Law expressly requires deliberations to resume, if, upon polling of the jury, a single juror indicate that the verdict announced in open court is not his or her verdict. CPL 310.80 states:
After a verdict has been rendered, it must be recorded on the minutes and read to the jury, and the jurors must be collectively asked whether such is their verdict. Even though no juror makes any declaration in the negative, the jury must, if either party makes such an application, be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict. If upon either the collective or the separate inquiry any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation . If no disagreement is expressed, the jury must be discharged from the case, except as otherwise provided in section 400.27. (Emphasis added).
Under defense counsel's rational, a trial judge would be coercing a single juror who does not affirm his or her verdict, simply by following the mandates of CPL 310.80.
In People v. Rosado , 10 A.D.3d 553, 782 N.Y.S.2d 43 (1st Dept. 2004), lv denied 4 N.Y.3d 747, 790 N.Y.S.2d 660, 824 N.E.2d 61 (2004), the First Department rejected a defendant's claim that the trial court should have given a jury additional instructions when a single polled juror answered in the negative when asked if his verdict was guilty. Rosado determined the trial court properly directed the jury to continue its deliberations without any further instruction. Likewise, in People v. Horn, 196 A.D.2d 886, 602 N.Y.S.2d 162 (2d Dept. 1993), lv denied 82 N.Y.2d 850, 606 N.Y.S.2d 602, 627 N.E.2d 524 (1993), the Second Department rejected the defendant's contention that the trial court erred in failing to conduct an inquiry of a polled juror who stated he did not agree with the verdict. "The trial court properly sent the jury back to deliberate after a single polled juror answered ‘no’ when asked if his verdict was guilty." ( Id. ). In People v. Brown , 35 A.D.3d 322, 827 N.Y.S.2d 45 (1st Dept. 2006), lv denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 (2007), the jury's verdict sheet suggested that two jurors might have initially voted to acquit. The trial court acted appropriately by directing the jury to resume its deliberations, to assure that the verdict was unanimous, just as it would have done, pursuant to CPL 310.80, had the jury been polled and any jurors had expressed disagreement with the verdict.
Accordingly, Juror No. 5's contention that other jurors yelled at her, causing her to become mentally exhausted, is insufficient to impeach the jury verdict. ( People v. Rodriguez , 119 A.D.2d 599, 500 N.Y.S.2d 769 [2d Dept. 1986] [conviction was not tainted by post-verdict statement by one juror that she abandoned her position in favor of acquittal and voted in favor of the defendant's conviction only because she felt ill and exhausted] ). Her further contention that the other jurors failed to send a note to the Court when she remarked: "Why don't you send the judge a note asking the judge why I was picked as a juror," even if an accurate portrayal of the jury room conversation, appears to have been a rhetorical comment and not a serious request to contact the Court. Had Juror No. 5 wished to speak to the Court in private, she had many opportunities to ask court personnel to approach the Court. In any event, even had Juror No. 5 been serious, the Court could not have provided a substantive response to such a question. Why the parties select a particular juror is not information known to the Court, nor would it be proper to share their rational with other members of the jury.
Juror No. 5's complaint that the jurors threatened to change their vote on the resisting arrest count is also baseless. If made, this would have been an obvious empty threat, as the "not guilty" verdict on the resisting arrest count had already been accepted in open court at the time the remark is alleged to have been made. In any event, such a remark, would once again, only seek to look into the tenor of deliberations.
Finally, Juror No. 5's claim of multiple days of psychological coercion is clear hyperbole, exaggerating the true length of the jury's deliberations. The deliberations lasted only minutes on October 11th, before the jury requested readback and was excused for the night. On October 12th, the jury scarcely deliberated during the morning session, having reconvened late due to the issues with Defendant's production, followed by readback of the testimony of two prosecution witnesses and the receipt of supplemental instructions relating to the resisting arrest charge, which was followed by a lunch break before the resumption of deliberations in the afternoon. The jury notes demonstrate that deliberations were taking place regarding both charges, and were not limited to the assault count. On October 13th, the jury deliberated for only a few more hours before reaching its verdict on the assault count. Thus, the deliberation process was not so prolonged or extensive, involving as it did two separate criminal charges, to have supported granting a mistrial after only two notes were received relating to an impasse in deliberations. (See , People v. Gonzalez , 140 A.D.2d 369, 527 N.Y.S.2d 855 [2d Dept. 1988], app denied 72 N.Y.2d 912, 532 N.Y.S.2d 761, 528 N.E.2d 1234 [1988] ).
Accordingly, Defendant's motion is denied without a hearing, pursuant to CPL 330.40 (2)(e)(i) & (ii).
Conclusion
Defendant's motion to set aside the verdict, pursuant to CPL 330.30 (2), is denied in all respects.
This constitutes the Decision and Order of the Court.