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ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department ordered a new trial for the defendant because an alternate juror deliberated with the other jurors. The trial judge attempted to fix the problem by having the jurors agree to start over and disregard the prior deliberations:

During the trial in this matter, an alternate juror briefly participated in deliberations with 11 sworn members of the jury while the12th sworn juror was absent from the jury room. The Supreme Court denied the defendant’s motion for a mistrial. The court then questioned each of the jurors about their ability to disregard the prior deliberations and start deliberations anew; each juror assured the court that he or she could do so. The court then denied the defendant’s renewed motion for a mistrial, and instructed the jurors that all deliberations that had taken place with the alternate juror were a nullity which must be disregarded by the jury, and that deliberations were to start “fresh, anew, ab initio, from the beginning.” After deliberations, the jury returned a verdict of guilty. The defendant appeals.

The New York Constitution guarantees every criminal defendant a trial by jury … . The constitutional right to a jury trial “includes the right to a jury of 12” … . Pursuant to CPL 270.30, after the jury has retired to deliberate, the court must either, (1) with the consent of the defendant and the People, discharge the alternate jurors, or (2) direct the alternate jurors not to discuss the case and further direct that they be kept separate and apart from the regular jurors. CPL 310.10 prohibits anyone, including alternate jurors, from communicating with deliberating jurors.

The error here not only violated CPL 270.30 and 310.10, but it deprived the defendant of his fundamental right to a trial by a jury of 12 … .  The error was not cured by the Supreme Court’s instructions to the reconstituted jury. People v Davis, 2018 NY Slip Op 03539, Second Dept 5-16-18

​CRIMINAL LAW (JURORS, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))/JURORS (CRIMINAL LAW, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))/ALTERNATE JURORS (CRIMINAL LAW, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))/DELIBERATIONS (CRIMINAL LAW, JURORS, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))

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