The court was confronted with a juror who flip-flopped. It was not quite the situation in People v Rodriguez (71 NY2d 214, 221) where it was held that you could not single out a particular juror when the jury was deadlocked. This juror had voted guilty, but seemed to feel that the defendant was not guilty. The Judge had an obligation not only to send the juror back for further deliberation, but to ask that the juror consult with the others and come to a conclusion based on deliberation.
However, on constraint of People v Cain (76 NY2d 119), I concur in the result.
Ross, Rosenberger and Smith, JJ., concur with Kassal, J; Kupferman, J. P., concurs in an opinion.
Judgment, Supreme Court, New York County, rendered on October 7, 1988, unanimously reversed, on the law, and the matter remanded for a new trial.