Communication by Court Officer to Deliberating Jury Required New Trial
In this weapon possession case, count one submitted to the jury was second-degree weapon possession and count two was the lesser included offense of third-degree weapon possession. Although the jury was not so charged, the verdict sheet indicated that if the jury found Mr. Fulton of count one, it should proceed to count three. During deliberations, the jury requested an explanation regarding the first two counts. The court repeated its charge on the elements of counts one and two without explaining that the jury should not consider count two if it found Mr. Fulton guilty of count one.
Before a verdict was reached, the court informed the parties that it had received an envelope containing the verdict sheet and had observed a “mistake” on it. The court stated that it had instructed a court officer to tell the jury about the mistake and that they were to correct the mistake, initial the correction, and send the court a note that they had reached a verdict. Shortly thereafter, the jury reached a verdict, convicting Mr. Fulton of second-degree weapon possession and lesser counts related to his motor vehicle. After the jury was discharged, the court told the parties that the verdict sheet sent during deliberations had indicated “guilty” on all counts.
The Appellate Division reversed and ordered a new trial. It was error for the court to delegate to a nonjudicial staff member the court’s authority to instruct the jury on matters affecting their deliberations. The instruction was not ministerial, and the error was so grave that reversal was warranted even though defense counsel may have consented to the court officer’s involvement. In addition, Mr. Fulton was improperly absent during a critical stage of the trial. Because harmless error was inapplicable, the errors were per se reversible and a new trial was ordered.
Anna Jouravleva represented Mr. Fulton