(concurring). While I am in agreement with the court’s judgment
and opinion in this case, I believe it is helpful however, in light of the dissent, to examine the present state of the law on this issue. The Court of Appeals has not really had the opportunity to discuss the duties and discretion of the trial court when, upon a polling of the jury pursuant to CPL 310.80,1 a juror responds in the affirmative, but “under duress.” (Compare Matter of Oliver v Justices of N. Y. Supreme Ct. of N. Y. County, 36 NY2d 53, affg 44 AD2d 823 [on CPL 310.70 grounds].) The United States District Court for the Eastern District of New York in United States ex rel. Blades v Beldock (459 F Supp 985 [Platt, J.]) considered the similar circumstances where petitioner sought a writ of habeas corpus and a stay of retrial in Kings County on criminal charges, on the ground of double jeopardy. After extended deliberations and two “modified Allen charges” the jury came in with a verdict of not guilty on all counts. Juror number eight shook her head during the foreman’s announcement, causing the prosecutor to request the jury to be polled pursuant to CPL 310.80. Juror number eight claimed she “had been brow beaten and badgered in a ‘personal, very vicious’ attack by her fellow jurors to the point where, in tears, she ‘sarcastically’ agreed to go along with the majority.” (Supra, at p 988.) The jury insisted that further deliberations would be useless, asserting they were unable to arrive at a unanimous verdict. The District Court found that the trial court properly exercised its discretion under these circumstances by dismissing the jury and declaring a mistrial, both under the “manifest necessity” standard of United States v Perez (9 Wheat [22 US] 579) and its progeny, and under CPL 310.60. Thus, a retrial was not barred by the double jeopardy clause of the Fifth Amendment. Judge Platt reasoned that CPL 310.80, which states that a trial court “must direct [a] jury to resume its deliberation”, does not vitiate its discretion, i.e., the trial court retains discretion to dismiss the jury when extended deliberation fails to produce a unanimous verdict and the court is satisfied such a verdict is unlikely within a reasonable period. Several other Federal courts have considered the issue under subdivision (d) of rule 31 of the Federal Rules of Criminal Procedure (US Code, tit 18, Appendix),2 which parallels the New York rule. In United States v Lawrence (618 F2d 986), upon a poll of the jury, one juror could not declare “guilty” or “not guilty” because of *845religious convictions, but agreed that the Government had proven the elements of the crime beyond a reasonable doubt. The Second Circuit affirmed the conviction and found (p 988): “Provided that it is clear that the juror is convinced beyond a reasonable doubt, ‘the exact words expressed by a juror are not material,’ Jackson v. Howard, 403 F.Supp. 107, 109 (W.D.Pa.1975), affd without opinion, 547 F.2d 1161 (3d Cir. 1977), cert, denied, 430 U.S. 957, 97 S.Ct. 1601, 51 L.Ed.2d 808 (1977)”. Further, the court noted (p 988) that, while it may have been more appropriate for the Trial Judge to substitute an alternate when the problem became apparent, “[i]t was entirely proper for the trial judge to examine juror number 2 in open court * * * He was able speedily to clear up all doubts as to the juror’s state of mind”. Thus, it was within the trial court’s discretion to question a juror in open court. (See, also, Williams v United States, 419 F2d 740.) The Tenth Circuit discussed other discretionary powers in United States v Morris (612 F2d 483, 489 [revd and remanded for new trial]) holding that: “the trial judge is vested with discretion under the Federal rule] to direct the jury to retire for further deliberations or to discharge the jury * * * the [implied] power to repoli the jury is also among the judge’s discretionary powers.” Indeed, it was held to be prejudicial error for the trial court to refuse remedial action in this case. The trial court has the affirmative duty to insure the defendant’s right to a valid verdict. As the court stated in Morris (supra, p 489) “upon the appearance of any uncertainty or contingency in a jury’s verdict, it is the duty of the trial judge to resolve that doubt” (emphasis added). Both the Federal and the New York rules seek to insure unanimity in the jury’s verdict as guaranteed by the Sixth Amendment, as well as proof beyond a reasonable doubt. The Fifth Circuit explained in Posey v United States (416 F2d 545, 554 [affg conviction], cert den 397 US 946, reh den 397 US 1031) that the object of a jury poll is to “‘ascertain with certainty that a unanimous verdict has in fact been reached and that no juror has been coerced or induced’ ”. (Citing to Humphries v District of Columbia, 174 US 190.) In Morris (supra, at p 490), the court announced the test for a valid verdict: “[W]hether it ‘* * * was certain, unqualified and unambiguous considering the circumstances of the receipt of the verdict and poll of the jurors relative to their verdict.’ ” (Quoting Cook v United States, 379 F2d 966, 968.) This test is in accord with that used by the Second Department, requiring a finding that “all of the jurors unequivocally expressed their assent” (People v Gottlieb, 44 AD2d 587, revd on other grounds 36 NY2d 629). In the case at bar, when Mary White responded, “Yes, under duress”, her response could not be characterized as “certain, unqualified and unambiguous”. This qualification cast doubt upon the validity of the verdict and invoked the trial court’s duty to take some remedial action. It may be that the Judge could have simply reminded the juror of her responsibility to render a verdict consistent with her conscience, or that she may not vote guilty unless she believed defendant’s guilt had been established beyond a reasonable doubt. It was within the court’s discretion to return the jury for further deliberation, question the jury individually, repoli the jury or dismiss them, as the circumstances warranted. But the court’s merely asking the juror, “[a]re they your verdicts, yes or no?” seems to have let the matter stand such that we are not able to say whether she was rendering her verdict “under duress” or not. Finally, I am of the opinion that the dissent incorrectly distinguishes People v Garvin (90 AD2d 682). While in that case the juror’s comment clearly inverted the reasonable doubt standard, it is not clear here that Mary White was convinced of Earl Pickett’s guilt beyond a reasonable doubt. Furthermore, both unanimity of the verdict and the finding of guilty beyond a reasonable doubt are equally at risk when a juror expresses uncertainty (which is not based on a momentary confusion; see *846People v Crandall, 53 AD2d 956; People v Farrell, 66 AD2d 718). I therefore concur in the judgment reversing the conviction and remanding for new trial.
. CPL 310.80 states: “Recording and checking of verdict and polling of jury. After a verdict has been rendered, it must be recorded on the minutes and read to the jury, and the jurors must be collectively asked whether such is their verdict. Even though no juror makes any declaration in the negative, the jury must, if either party makes such an application, be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict. If upon either the collective or the separate inquiry any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation. If no disagreement is expressed, the jury must be discharged from the case, except as otherwise provided in sections 125.30 and 125.35 of the penal law.”
. Subdivision (d) of rule 31 states: “Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.”