People v. Alleyne

179 A.D.3d 712

113 N.Y.S.3d 588 (Mem)

The PEOPLE, etc., Respondent,

v.Dwayne ALLEYNE, Appellant.

2015–01726

Ind.No. 883/13

Supreme Court, Appellate Division, Second Department, New York.

Argued - June 13, 2019

January 8, 2020

Janet E. Sabel, New York, N.Y. (Ellen Dille of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jean M. Joyce, and Andrew S. Durham of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

A defendant has a constitutional right to a trial by a particular jury chosen according to the law, in whose selection the defendant has had a voice (see People v. Jeanty, 94 N.Y.2d 507, 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ). The right to trial by jury guarantee "embraces the decision whether to replace a juror in certain aspects that are fundamental to the fair and orderly administration of the fact-finding process" ( id. ). "If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service, ... the court must discharge such juror" ( CPL 270.35[1] ).

Here, contrary to the Supreme Court's determination, the defendant's statutory and constitutional rights were violated when, over the defendant's objection, the court excused Juror No. 10 and substituted an alternate juror. The record does not demonstrate that Juror No. 10 was unavailable as that term is used in CPL 270.35 (see People v. Thomas, 147 A.D.2d 598, 598, 537 N.Y.S.2d 892 ; People v. Rosa, 138 A.D.2d 753, 755, 526 N.Y.S.2d 567 ). Juror No. 10's work obligation did not render her unavailable for jury service, as her own convenience or potential financial hardship are insufficient to render her unavailable under CPL 270.35 (see People v. Thomas, 147 A.D.2d at 599, 537 N.Y.S.2d 892 ; see also People v. Bunch, 278 A.D.2d 501, 502, 717 N.Y.S.2d 385 ). Moreover, the People's contention that Juror No. 10 may have been distracted over her work conflict had she not been excused or may not have appeared on the following Monday is pure speculation without support in the record (see People v. Page, 72 N.Y.2d 69, 74, 531 N.Y.S.2d 83, 526 N.E.2d 783 ; see generally People v. Jackson, 149 A.D.2d 532, 533, 539 N.Y.S.2d 997 ).

Although the objectives of maintaining calendar control and otherwise ensuring the efficient resolution of the court's business are laudable goals, under the facts of this case, minor scheduling difficulties, including any brief delay which may have ensued had Juror No. 10's schedule been accommodated, are not meaningful counterweights to the defendant's constitutional right to trial by a jury in whose selection he has participated (see People v. Jackson, 149 A.D.2d at 533, 539 N.Y.S.2d 997 ; People v. Rosa, 138 A.D.2d at 755, 526...