People v. Gaston

Lupiano, J. (concurring).

I join in the view expressed by the majority and would add the following as an additional cumulative predicate for reversal of the judgment and remanding of the matter for a new trial. First, on this record as I view it, sale is not the only permissible inference to be drawn. The trial court’s refusal to submit to the jury the simple possession charge, ruling that this matter was simply a "sale or no sale”, was error. It must be noted that the defendant did not negotiate the price, the seller Beane delivered the drugs and walked away with the purchase money, and defendant obtained a "tip” from the undercover officer. Second, while not of itself determinative, the fact that the jury reported itself deadlocked on this rather simple case on several occasions and spent one night in a hotel looms significant in light of the rapidity with which a determination was reached when the jury was informed at about 5:00 p.m. that it would be sequestered *563for a second night. Fifteen minutes later, the jury returned its guilty verdict. A latent suggestion of coercion arises from these circumstances. Of course, apart from the other issues, the overtone of coercion of itself is clearly insufficient to warrant overturning the jury verdict. It is in conjunction with these other issues, assuming their viability, that the overtone of coercion achieves some significance.