Jury Deliberations and Rendition of Verdict

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 487-512

JURY DELIBERATIONS,

RENDITION OF VERDICT

CHAPTER 34

JURY DELIBERATIONS AND

RENDITION OF VERDICT

§34:01 New York Trial Notebook 34-2

JURY DELIBERATIONS,

RENDITION OF VERDICT

I. DELIBERATIONS

A. GENERAL POINTS

§34:01 Beginning Deliberations

After the court has finished instructing the

jury, and there has been opportunity for counsel to

except to the charges, the jurors are sent into the

jury room to begin deliberations. The juror in seat

number one is normally designated the foreperson.

The court may adopt the following procedure

upon consent of the parties: if more than six

persons had been selected to hear the case

and more than six remain at the close of the

evidence, six names are to be drawn at random to

deliberate, and “unless otherwise determined by

the court,” the juror whose name is drawn first is

the foreperson. Alternate jurors are then ordinarily

discharged. [Uniform Rules for Jury Selection and

Deliberations, 22NYCRR §220.1(c). See §34:02.]

Some courts prefer to allow all remaining

jurors to be able to participate in deliberations,

even where their number exceeds six, so that all

jurors who have sat through the trial and heard

the evidence may have a hand in the outcome. If

counsel do not object, this is what occurs.

NOTE:

CPLR 4113(a) requires a verdict of not

less than 5/6ths of the jurors, so if there

is more than one dissenter in a six-person

jury, the jury could be hung. If more than

six jurors deliberate (but less than twelve!),

more than one dissenter could still hang the

jury. Logically, if more people are allowed

to deliberate, the possibility of an additional

dissenter increases. This is why most counsel

are reluctant to agree to allow more than six

jurors to deliberate. If you agree to allow more

than six jurors to deliberate, be sure to object

to an adverse verdict if there is more than one

dissenter (and there are fewer than twelve

jurors). In Harvey v. B & H Restaurants, Inc.,

40 AD3d 241, 834 NYS2d 178 (1st Dept

2007), an eight-person jury rendered a verdict,

and the First Department held that defendants’

argument that the verdict should be set aside

because it was reached by less than five-

sixths of the eight jurors was unpreserved, and

allowed the verdict to stand.

Counsel for all parties normally remain in

the courtroom or close by, to be able to react to

questions the jurors may have or to request the trial

court to further instruct the jury (or to object to

an adversary’s requests), as well as to receive the

verdict. If deliberations are protracted, sometimes

counsel may absent themselves with the court’s

permission, remaining on call and able to return

within a reasonable time. However, it is best that

someone representing each party be present at all

times in the immediate vicinity of the courtroom

while the jury is deliberating.

§34:02 Discharge of Alternate Jurors

Under CPLR 4106 as it exists prior to January

1, 2014, after final submission of the case, the

court must discharge the alternate jurors. [CPLR

4106; Gallegos v. Elite Model Management Corp.,

28 AD3d 50, 807 NYS2d 44 (1st Dept 2005).]

However, in Fader v. Planned Parenthood of New

York City, Inc., 278 AD2d 41, 717 NYS2d 166

(1st Dept 2000), the trial court did not immediately

discharge the alternates; possibly anticipating

lengthy deliberations, “the Trial Judge wanted to

give the parties the option of stipulating to the

substitution of an alternate juror in the event a

regular juror became unavailable for continued

service during deliberations.” [278 AD2d at 42,

717 NYS2d at 166.] To that end, the Trial Judge

ordered the regular jurors to begin deliberations

and the alternates to be separated and not to discuss

the case at all. No party objected to this. After the

verdict (for defendant) was read, plaintiff for the

first time alleged that the regulars and alternates

“commingled” (sic). The First Department rejected

this claim as untimely and conjectural, rejected the

argument that CPLR 4106 could not be waived,

and upheld the verdict for defendant. In Gallegos

v. Elite Model Management, supra, the First

Department distinguished Fader. In Gallegos, the

trial court actually discharged two jurors after

deliberations had begun and seated two alternates,

this after a nine week trial on damages (which

followed a verdict for plaintiff on liability in this

employment discrimination case). The decision

reveals that the trial court had its misgivings about