On appeal from the Superior Court, Appellate Division.
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the court was delivered by STEIN, J.
In this case the Court considers the validity of partial verdicts returned during the course of jury deliberations in a criminal trial. Here, the court treated as final a verdict on two counts of the four-count indictment against defendant, returned at the end of the first day of the jury's deliberations. The Appellate Division affirmed in an unreported opinion, one member Dissenting. Defendant appeals as of right. R. 2:2-1(a).
The indictment was based on events that occurred during a barroom fight. While defendant was engaged in an altercation with another patron, a knife that he purportedly used at work fell out of his pocket. Defendant picked it up and stabbed the victim three times. He was indicted on the following five counts:
Count one - possession of a weapon under circumstances not manifestly appropriate for lawful use. (N.J.S.A. 2C:39-5(d));
Count two - possession of a weapon with purpose to use it unlawfully against another. (N.J.S.A. 2C:39-4);
Count three - aggravated assault. (N.J.S.A. 2C:12-1(b)(1));
Count four - aggravated assault with a deadly weapon. (N.J.S.A. 2C:12-1(b)(2));
Count five - possession of a weapon by a convicted person. (N.J.S.A. 2C:39-7).
Because the trial court severed count five from the indictment, only the first four counts were before the jury.
Shortly after it began deliberating, the jury informed the court that it had arrived at a verdict on counts one and two but was unable to arrive at a verdict on counts three and four. In a Discussion with counsel, the court recommended accepting the verdicts on the first two counts and instructing the jury to continue its deliberations on the remaining counts. The defense attorney noted that he "would have no objection to letting them go at this time and bringing them back tomorrow morning." The jury returned to the courtroom and the foreperson informed the court that the jury found defendant guilty of possession of a weapon under circumstances not manifestly appropriate for lawful use (count 1), and not guilty of possession of a weapon with the purpose to use it unlawfully against another (count two). The jury had not yet reached a verdict on the third and fourth counts. The court did not instruct the jury regarding the finality of its verdict on the first two counts, and the court clerk did not then record the verdict in the trial minutes.
After hearing the partial verdicts, the court told the jury that deliberations would continue in the morning. Before discharging ...