The Second Department, reversing Supreme Court, determined that defendant’s motion for a mistrial should have been granted after the judge learned that an alternate juror had participated in the jury deliberations while a sworn juror was absent. The trial judge denied the mistrial motion after receiving assurances from all the sworn jurors that they could start the deliberations over:
After an undefined period of time, it became apparent to the Supreme Court that an alternate juror briefly participated in deliberations with 11 sworn members of the jury while the 12th sworn juror was absent from the jury room. The court then replaced the alternate juror with the 12th sworn juror and sent the jury back to deliberate before breaking for the day. * * *
“The New York Constitution guarantees every criminal defendant a trial by jury,” which includes the right to a jury of 12 … . “A defendant has a constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice” … . “At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . The violation of a defendant’s right to a jury trial of 12 is a “fundamental defect[ ] in judicial proceedings” … .
CPL 310.10(1) provides, inter alia, that “[f]ollowing the court’s charge, . . . the jury must retire to deliberate upon its verdict.” 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. Once deliberations begin, a regular juror may be replaced by an alternate juror only with the defendant’s written consent (see CPL 270.35). “[F]ailure to comply with the statutory requirement of written, signed consent results in substitution of an alternate juror during deliberations without an effective, constitutional waiver. Such substitution directly contravenes [People v] Ryan and infringes the defendant’s fundamental, constitutional right to trial by a jury of 12” … . People v Larman, 2019 NY Slip Op 06097, Second Dept 8-7-19