PEOPLE v. WINCELOWICZ (1999)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered November 12, 1996, convicting him of unauthorized use of a vehicle in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested for driving a stolen van.   After a brief trial on an indictment charging criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the second degree, the jury deliberated for 4 1/2 to 5 hours, during the course of which it sent out seven notes to the Trial Judge.   The last three of these notes asked, inter alia, for redefinitions of the term “stolen property” relative to the first count, charging criminal possession of stolen property in the fourth degree.   In the final note, while again requesting that the court redefine stolen property, the jury declared that it was “deadlocked on count one”, although unanimous on the second count.   The court decided, pursuant to CPL 310.70, to accept the partial verdict, as it despaired of clarifying the elements of the first count to the obviously confused jury.   Thereafter, it dismissed the first count.

We do not agree with the defendant's contention that he was prejudiced when the court refused to reinstruct the jury on the meaning of stolen property for a fourth time, and instead accepted a partial verdict.   CPL 310.70 provides that when a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it, the court may accept a partial verdict with respect to the offenses that the jury can agree upon “[i]f the possibility of ultimate agreement with respect to the other submitted offenses * * * is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury” as provided for by CPL 310.60(1)(a).   This latter statute provides that a court may declare a mistrial where the jury is unlikely to agree upon a verdict “within a reasonable time”.   In assessing the court's broad discretion under these statutes (see, e.g., People v. Sparacino, 150 A.D.2d 814, 542 N.Y.S.2d 235), an appellate court should consider:  (1) the length and complexity of the trial, (2) the length of the jury's deliberations, (3) the extent and nature of communications between the trial court and the jury, and (4) the potential effects of requiring the jury to engage in further deliberations (Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 251, 481 N.Y.S.2d 657, 471 N.E.2d 429;  People v. Reed, 230 A.D.2d 866, 867, 646 N.Y.S.2d 832).   Here, the trial was short, the issues presented were simple, the jury deliberated between 4 1/2 and 5 hours, an adequate amount of time under the circumstances, there were seven communications between the Trial Judge and the jury, and the Trial Judge repeatedly attempted to clear up the jurors' confusion regarding “stolen property” (see, e.g., Matter of Plummer v. Rothwax, supra, at 251-252, 481 N.Y.S.2d 657, 471 N.E.2d 429;  see also, Matter of Owen v. Stroebel, 65 N.Y.2d 658, 491 N.Y.S.2d 611, 481 N.E.2d 243, cert. denied 474 U.S. 994, 106 S.Ct. 408, 88 L.Ed.2d 358;  People v. Campbell, 203 A.D.2d 127, 610 N.Y.S.2d 246;  Matter of Tuite v. Shaw, 49 A.D.2d 737, 739, 372 N.Y.S.2d 219).   Under the circumstances, it cannot be said that the Trial Judge improvidently exercised his discretion in concluding that it would be unwise to pressure the jurors to agree on a verdict upon the first count, when they were having difficulty understanding the elements of the crime charged therein (see, e.g., Matter of Plummer v. Rothwax, supra, 63 N.Y.2d at 252-253, 481 N.Y.S.2d 657, 471 N.E.2d 429).

MEMORANDUM BY THE COURT.