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THE TRIAL JUDGE DID NOT MAKE AN ADEQUATE INQUIRY ABOUT THE REASONS FOR A SITTING JUROR’S ABSENCE BEFORE SUBSTITUTING AN ALTERNATE JUROR; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the trial judge did not make an adequate inquiry about a sitting juror’s absence before substituting an alternate juror for the sitting juror (Juror Number 9). The defendant had moved for a mistrial on that ground:

… [T]he trial court failed to conduct the requisite “reasonably thorough inquiry” before substituting Alternate Number 1 for Juror Number 9 (see CPL 270.35 [2] [a]). When it ordered the substitution, the court had merely stated its “belie[f]” that Juror Number 9 had an “appointment for a family member,” and incorrectly claimed that Juror Number 9 had stated during voir dire that she had a medical appointment for her son in Rochester. Not only did the court provide only limited — and inaccurate — reasons to support a finding of unavailability, there is nothing on the record reflecting that it made any inquiry into Juror Number 9’s whereabouts or likelihood of appearing prior to ordering the substitution of Juror Number 9 with Alternate Number 1. On this record, the court failed to satisfy the requirement that a trial court conduct a “reasonably thorough inquiry” to ensure that its substitution determination is adequately informed … . People v Lang, 2020 NY Slip Op 03487, CtApp 6-23-20

 

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