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New trial ordered in Ontario County

Judge failed to poll jury

By: Bennett Loudon//August 3, 2021

New trial ordered in Ontario County

Judge failed to poll jury

By: Bennett Loudon//August 3, 2021

A state appeals court has reversed a verdict and ordered a new trial because the judge failed to poll the jury.

Defendant Steven Kula was accused of raping plaintiff Patti Fitzgerald, but he was acquitted in a criminal trial.

Subsequently, Fitzgerald sued Kula seeking damages for assault and battery, while Kula filed a counterclaim for defamation.

On Feb. 18, 2020, the jury in the civil trial reached a verdict that awarded damages to both sides.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed the verdict and sent the case back to state Supreme Court in Ontario County for a new trial.

Justice Brian D. Dennis denied motions from both sides to set aside portions of the verdict. The Fourth Department reversed the verdict and ordered a new trial because Dennis denied a defense request to poll the jury.

“We reverse. We agree with defendant on his cross appeal that the court erred in denying his request to poll the jury,” The Fourth Department panel wrote.

“A party has an absolute right to poll the jury, and a court’s denial of that right mandates reversal and a new trial,” the court wrote, quoting from Holstein v Community General Hospital of Greater Syracuse, a 2012 Court of Appeals decision.

“We therefore reverse the order and judgment and remit the matter to Supreme Court for a new trial,” the panel wrote.

“I have to concede that the law states, the Court of Appeals is clear, if this is a clear unequivocal request to poll the jury I have no argument that would not result in a new trial. I wish I had,” Fitzgerald’s appellate lawyer, Michael Steinberg, told the Fourth Department panel during the oral argument on May 17.

But, Steinberg claimed, there was no specific request to poll the jury.

Kula’s appellate lawyer, Eric M. Dolan, pointed out that Kula’s defense lawyer at trial said to Dennis: “We’re not going to get another opportunity to poll the jury, which is essentially what I think we should do. So, in my opinion, judge, a simple solution here is to poll the jury.”

Dolan told the panel: “The term to ‘poll the jury’ has a commonly understood meaning amongst lawyers and judges … We’re not asking the court to interpret words … we have an actual request to poll the jury.”

“If the court determines that this was a request to poll the jury and we contend that it was, the remedy is for a retrial on all counts and all issues,” Dolan said.

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