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EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing (over a dissent) defendants' convictions in a gang assault case, and granting leave for the People to appeal to the Court of Appeals, determined it was reversible error to empanel an anonymous jury. The trial judge explained his reasoning for not revealing the jurors' names as follows: “I know the last five years an increasing number of jurors told me that A, they feel uncomfortable walking in and out of the courtroom to their cars; B, they feel really uncomfortable giving their names, especially in violent felonies. And after speaking to [the Commissioner of Jurors] about it, she told me that's exactly the same feedback she gets, that jurors are uncomfortable about those two things, especially having their names in the courtroom. Now, my intent is to get as many jurors as we can possibly get to serve. And I think that because of that, I think that it limits the number of jurors that we get because they don't want to go through that worry and stress . . . about this because these are violent felonies. You know and I know we deal with this stuff every day, jurors don't. And that's the reason. It's not specifically this case, but that's the reason it's happening more and more and more often. So that's the reason.” The Second Department held the empaneling of an anonymous jury violated the criminal procedure law and the error was not harmless (the dissent argued the error was harmless):

The best evidence of the Legislature's intent is the text of the statute itself … . Where the statutory language is clear and unambiguous, a court should construe it so as to give effect to the plain meaning of the words used … .

CPL 270.15(1)(a) provides, in part, “the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law.”

CPL 270.15(1-a) provides:

“The court may for good cause shown, upon motion of either party or any affected person or upon its own initiative, issue a protective order for a stated period regulating disclosure of the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party. Such good cause shall exist where the court determines that there is a likelihood of bribery, jury tampering or of physical injury or harassment of the juror.”

Read together, these sections of CPL 270.15 prohibit a trial court from withholding the names of prospective jurors. The plain language of CPL 270.15(1)(a) provides that the names be called. CPL 270.15(1-a) allows for the issuance of a protective order regulating disclosure of addresses. It does not allow for the issuance of a protective order regulating disclosure of names. People v Flores, 2017 NY Slip Op 05457, 2nd Dept 7-5-17

CRIMINAL LAW (EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)/JURIES (CRIMINAL LAW, EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)/ANONYMOUS JURIES (CRIMINAL LAW, EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)

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