People v. Fisher

213 N.Y.S.3d 213

236 N.E.3d 1232

41 N.Y.3d 495

The PEOPLE of the State of New York, Respondent,

v.Kenneth E. FISHER, Appellant.

Court of Appeals of New York.

Decided April 23, 2024

Lisa A. Burgess Attorney At Law, PLLC, Indian Lake (Lisa A. Burgess of counsel), for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John D. Kelley of counsel), for respondent.

OPINION OF THE COURT

Chief Judge WILSON.

₄₉₆Upon a jury verdict, the trial court convicted Kenneth Fisher of three counts of third-degree criminal possession of a controlled substance (PL 220.16) arising from two controlled buy operations. He was sentenced to nine years in prison. One of the jurors in Mr. Fisher’s case was certain that Mr. Fisher had followed her home after the first day of jury selection, a belief the trial court deemed likely unfounded. Instead of ₄₉₇promptly informing the court of her concern, she instead waited three days, until the case was submitted to the jury, and then expressed her safety concern to the other jurors as they deliberated. Those facts established that the juror was "grossly unqualified" pursuant to CPL 270.35, because it was clear she "possesse[d] a state of mind which would prevent the rendering of an impartial verdict" (People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987]). Although the trial judge then elicited some assurances that the juror could put aside her concerns, those assurances were insufficient to support a conclusion that the juror should be retained. Therefore, the juror should have been dismissed and a mistrial granted.¹

I.

During jury deliberations, the court received a note stating: "Confidential, one juror feels she may have been followed home Monday by Mr. Fisher." On investigation, the juror in question was identified as Juror Six. The court questioned Juror Six in the robing room as follows:

"THE COURT: … The foreperson had indicated in a note to us that you had felt that Monday, after jury selection, that you may have been followed home by Mr. Fisher?

"JUROR SIX: Yes.

"THE COURT: What leads you to believe that?

"JUROR SIX: Because I could see him in my rearview mirror.

"THE COURT: Do you recall what type of car he may have been driving?

"JUROR SIX: It was a maroon Lincoln. I could see the Lincoln symbol, an older model….

"THE COURT: …And do you recall that this maroon Lincoln, do you recall how many people were in it, or the ages, or—

"JUROR SIX: No, just the driver.

₄₉₈"THE COURT; Okay. Were you able to see that this car was directly behind you, or was it a couple of spots behind you, or—

"JUROR SIX: It may have been six or eight car lengths behind me.

"THE COURT: Okay, and you believe—you think it’s Mr. Fisher?

"JUROR SIX: I believe it may have been.

"THE COURT: Can you tell us why you think you may believe that? And I don’t mean to impose, but these are just questions that we need to ask you.

"JUROR SIX: I just tend to look in my rearview mirror a lot, because years ago I was rear-ended by an ex-husband.

"THE COURT: Okay. So this was about six to eight cars behind you?

"JUROR SIX: Yes.

"THE COURT: Can you give us with any percentage degree how certain you think that it may have been Mr. Fisher?

"JUROR SIX: 95 percent.

"THE COURT: Okay. Is there a reason why you are bringing this up to us now, rather than let’s say when we reconvened on Wednesday morning?

"JUROR SIX: Because other juror members were scared for their own safety, because of certain people that were sitting watching the trial through the week.

"THE COURT: Okay. And without getting into what other—those concerns may be, does this affect your ability to remain on the jury?

"JUROR SIX: No.

"THE COURT: Could you be a fair and impartial juror?

"JUROR SIX: I can be a fair and impartial juror, ₄₉₉yes. I say that, because the other juror members encouraged me, because their safety may be at risk. "THE COURT: Well, you did exactly what you were supposed to do by telling us your concerns. So without confirming whether that was or was not [defendant], and obviously, we don’t know that, and we’re just listening to you, you could put aside whatever that is?

"JUROR SIX: Yes.

"THE COURT: And determine this case solely on the evidence and the legal instructions that I gave you.

"JUROR SIX: Yes."

Further questioning established that Juror Six had seen Mr. Fisher in the parking lot as she left the courthouse but did not see him get into a maroon Lincoln. Therefore, her identification was based only on observations she made by looking in her rearview mirror at a car that was six to eight car lengths behind.

After consulting with his client, Mr. Fisher’s attorney moved for a mistrial on the basis that he did not have a fair and impartial jury. He argued that Juror Six and likely other jurors had fear and apprehension related to Juror Six being followed and also that jurors were demonstrating implicit racial bias.²

The court denied the motion. The court gave two reasons for retaining Juror Six: first, it did not credit that Juror Six was actually followed; second and "even more important," Juror Six indicated that she could remain fair and impartial. The court noted that it had not observed anything in the courtroom that would cause jurors to fear for their safety. Defense counsel then asked for questioning of the other jurors, which occurred.³ After that questioning, defense counsel made no additional motion. The Appellate Division affirmed (212 A.D.3d 984, 182 N.Y.S.3d 325 [3d Dept. 2023]) and a Judge of this Court granted leave to appeal (39 N.Y.3d 1141, 188 N.Y.S.3d 436, 209 N.E.3d 1264 [2023]).

₅₀₀II.

CPL 270.35 states that if after a jury is sworn, "the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case … the court must discharge such juror." If no alternate juror is available, the court must declare a mistrial (see CPL 270.35; CPL 280.10[3]).

[1–4] In applying this statute, we have noted that it safeguards two constitutional rights: "the right to be tried by the jury in whose selection the defendant himself has participated, and the right to an impartial jury" (People v. Rodriguez, 71 N.Y.2d 214, 218, 524 N.Y.S.2d 422, 519 N.E.2d 333 [1988]; see NY Const, art I, §§ 2, 6; US Const 6th, 14th Amends). The right to participate in jury selection is protected by the fact that the "grossly unqualified" standard is higher than the standard for removal of a juror during voir dire (see People v. Kuzdzal, 31 N.Y.3d 478, 483, 80 N.Y.S.3d 189, 105 N.E.3d 328 [2018]; Buford, 69 N.Y.2d at 297-298, 514 N.Y.S.2d 191, 506 N.E.2d 901). A juror may be challenged for cause during voir dire if it is "likely" her state of mind will prevent an impartial verdict (CPL 270.20[1][b]), but the "grossly unqualified" standard for disqualification of a sworn juror requires that the juror’s inability to render an impartial verdict be "obvious" or "convincingly demonstrate[d]" (People v. Spencer, 29 N.Y.3d 302, 309, 56 N.Y.S.3d 494, 78 N.E.3d 1178 [2017], quoting and citing Buford, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901). The higher standard for sworn jurors ensures that jurors chosen by both parties are not later dismissed because of "speculation" or "minor incidents," which would undermine the voir dire process (Rodriguez, 71 N.Y.2d at 219, 220, 524 N.Y.S.2d 422, 519 N.E.2d 333). Accordingly, "[i]n concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of juror based on her equivocal responses" (Buford, 69 N.Y.2d at 299, 514 N.Y.S.2d 191, 506 N.E.2d 901).

[5–8] However, the defendant’s right to an impartial jury demands that even a sworn juror must be dismissed if the record "convincingly demonstrate[s] that the sworn juror cannot render an impartial verdict" (Spencer, 29 N.Y.3d at 310, 56 N.Y.S.3d 494, 78 N.E.3d 1178). In reaching the conclusion that this standard was met here, we are guided by our decision in (People v. Rodriguez, 71 N.Y.2d 214, 524 N.Y.S.2d 422, 519 N.E.2d 333), which suggests that a strong bias harbored directly against the defendant strikes at the core of the right to an impartial jury and will render a juror grossly unqualified absent a showing that the bias will not affect the verdict. In Rodriguez, we held that where a juror is "racially or otherwise invidiously biased against the defendant," the juror is presumed ₅₀₁to be grossly unqualified (71 N.Y.2d at 220, 524 N.Y.S.2d 422, 519 N.E.2d 333). We stated that this understanding of the "grossly unqualified" standard was demanded by the defendant’s right to an impartial jury (id. at 218, 220, 524 N.Y.S.2d 422, 519 N.E.2d 333). In a system that requires jurors to judge the guilt or innocence of a defendant based on the evidence rather than on beliefs and assumptions, bias directly against a defendant cannot be brushed off as "insignificant" or "minor" like irritation with an attorney or knowledge of a collateral fact (id. at 219–220, 524 N.Y.S.2d 422, 519 N.E.2d 333; see Buford, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901). A juror who clearly holds a bias directly against the defendant generally cannot render a verdict that respects the defendant’s right to an impartial jury. That inability would render her grossly unqualified. Therefore, the only way such a juror may be retained is if there is a showing, "including unequivocal assurances," that the juror’s bias will not affect her deliberations (Rodriguez, 71 N.Y.2d at 220, 524 N.Y.S.2d 422, 519 N.E.2d 333).

[9] Because the juror’s bias here was strongly held and ran directly against the defendant, the danger to the defendant’s right to an impartial jury reached a level that would render the juror grossly unqualified. Juror Six’s fear that she had been followed home by Mr. Fisher is a less stark form of bias than the explicit racial prejudice expressed by the juror in Rodriguez, but is similar in that it is a prejudicial belief about the defendant that is not based on the...