People v. Alcide, 89 N.Y.2d 961 (1997)

A defendant must make a specific objection or request for further inquiry during jury polling to preserve a claim that the court failed to adequately inquire into a juror’s verdict.

Summary

Alcide was convicted of second-degree murder and second-degree assault. During jury polling, one juror initially remained silent when asked if the verdict was hers, but eventually responded affirmatively after the court’s prompting. The defense attorney did not object to the procedure or request further inquiry. The New York Court of Appeals affirmed the conviction, holding that the defendant’s claim that the trial court failed to adequately inquire into the juror’s verdict was unpreserved for appellate review because the defense failed to object or request specific procedures during the polling process. The court also found no abuse of discretion in repeating the “acting-in-concert” instruction.

Facts

Alcide was tried for murder and assault stemming from an incident in Bronx County. During deliberations, the jury requested further explanation of attempted second-degree murder and second-degree assault. The court, in response, repeated its previous instruction on “acting-in-concert” liability. The jury then informed the court it had reached a verdict, finding Alcide guilty of second-degree murder and second-degree assault.

Procedural History

The trial court convicted Alcide of second-degree murder and second-degree assault. The Appellate Division affirmed the conviction, with two justices dissenting. A dissenting justice granted Alcide leave to appeal to the New York Court of Appeals.

Issue(s)

1. Whether the defendant’s claim that the trial court failed to adequately inquire into a juror’s vote during polling is preserved for appellate review when the defendant failed to object or request further inquiry during the polling process.
2. Whether the trial court abused its discretion by including an instruction on the “acting-in-concert” theory of liability in its response to the jury’s note.

Holding

1. No, because the defendant failed to make a specific objection or request further inquiry when the juror was being polled, and again failed to object after the entire jury was polled.
2. No, because there is no distinction between liability as a principal and criminal culpability as an accessory, and the prosecution pursued both lines of reasoning.

Court’s Reasoning

The Court of Appeals held that under CPL 310.80, a juror’s negative response during polling requires the court to refuse the verdict and direct further deliberations. While a juror’s response may raise doubts requiring resolution, a request for specific procedures to correct irregularities must be preserved for review. Here, Alcide’s counsel failed to object or request further inquiry when the juror hesitated. The court stated, “Defendant’s contention on appeal concerning a claimed failure of the trial court to make certain inquiries is unpreserved for our review.”

Regarding the “acting-in-concert” instruction, the court stated, “Because there is ‘no distinction between liability as a principal and criminal culpability as an accessory’ and the prosecution pursued both lines of reasoning in presenting its case, the court’s repetition of its previous instructions to which defendant had not objected was consistent with ‘the substantive scope of the initial written inquiries’.” The court found no abuse of discretion.