Appeal by defendant from a judgment of the Supreme Court, Queens County (Dubin, J.), rendered October 1, 1982, convicting him of murder in the second degree (felony murder) and robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and a new trial ordered. Defendants trial on charges of common-law murder, felony murder, and robbery in the first degree consisted primarily of circumstantial evidence. During jury deliberations the Trial Judge received a note from the foreman informing him that one juror had a closed mind and was "not willing to make a decision in either direction, due to the fact that there was no eye witness [ sic ] or a found weapon in dispute". Upon ascertaining who the juror was, and in the presence of the two attorneys, the Judge summoned the juror into the courtroom, read the note to him, and asked him if it was true. The juror stated that he could not convict upon circumstantial evidence, but asserted that he had an open mind, and that he had told the other jurors to convince him. Upon finding that the jurors mind was not closed, the court ended the discussion. Following the readback of certain testimony and a further charge urging the jury to reach a verdict, if possible, the trial court engaged in an in camera discussion with the jury foreman. The jury ultimately returned with its verdict. Although defense counsel failed to object to the singling out of the juror during deliberations, we are compelled to reverse in the interest of justice. A Trial Judge must not [96 A.D.2d 517 Page 518]
