You are here: / / THE MAJORITY REFUSED TO CONSIDER WHETHER COUNTY COURT PROPERLY DISCHARGED...
,

THE MAJORITY REFUSED TO CONSIDER WHETHER COUNTY COURT PROPERLY DISCHARGED A JUROR WHO FAILED TO APPEAR BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION; TWO DISSENTERS WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether the court properly discharged a juror because the issue was not preserved by objection. The two dissenting justices would have ordered a new trial in the interest of justice:

From the dissent:

If a juror is unable to continue serving due to an illness, “the court shall make a reasonably thorough inquiry concerning such illness . . . and shall attempt to ascertain when such juror will be appearing in court” (CPL 270.35 [2] [a]). * * *

… [O]n the day at issue and approximately 30 minutes after the scheduled start of the trial, County Court noted that juror No. 1 was not present. The court remarked, “She did leave sick yesterday,” and, after such remark, stated that it was necessary to replace juror No. 1 with an alternate juror. …

… [T]here was no reasonably thorough inquiry — let alone, any inquiry — as to juror No. 1’s absence. Although juror No. 1 was apparently ill on the day when she was selected for service, the court did not bother to learn if she continued to be ill. It seems that the court merely speculated that, because juror No. 1 was ill the day before, she continued to be ill and that was the reason why she did not show up at the scheduled time for the start of the trial. Such speculation, however, does not meet the standard of conducting a reasonably thorough inquiry. … [E]ven if it could be said that the court did make a reasonably thorough inquiry, the court still failed to ascertain when juror No. 1 would return to court. The record discloses that, prior to discharging juror No. 1, the court neither heard from nor reached out to her to see if she would not be making it for the trial or if she was en route to the courthouse … . People v Colter, 2022 NY Slip Op 04055, Third Dept 6-23-22

Practice Point: Here the issue whether County Court properly discharged a juror was not considered by the majority because the issue was not preserved by objection. The two dissenters argued the court did not conduct a proper inquiry to determine why the juror had not appeared and whether the juror would appear. The dissenters would have considered the issue in the interest of justice and ordered a new trial.

 

You might also like
THE PEOPLE CAN NOT APPEAL THE GRANT OF DEFENDANT’S MOTION TO WITHDRAW HER PLEA, VACATE HER FELONY CONVICTION AND ALLOW HER TO PLEAD TO A MISDEMEANOR; DEFENDANT MADE THE MOTION AFTER SUCCESSFUL COMPLETION OF A DRUG-COURT TREATMENT PROGRAM (THIRD DEPT).
PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING.
“Out-of-Title” Work Did Not Warrant Higher Pay
Premises Clause Prevails Over Habendum Clause in a Deed/Failure to Expressly Label Parties and Include the Parties’ Addresses Does Not Invalidate a Deed
WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL.
PLAINTIFF, WHO WAS WORKING AT GROUND LEVEL, WAS STRUCK ON THE HEAD BY A TIRE RIM WHICH WAS BLOWN OFF THE ROOF IN HEAVY WINDS, THE TIRE RIM REQUIRED SECURING AND NO SAFETY DEVICE WAS EMPLOYED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (THIRD DEPT).
Letters Between Attorney and City Re: Fees Did Not Create Unilateral Contract
Motion to Dismiss In Which Documentary Evidence Was Submitted—Court’s Role Is to Determine Whether Plaintiff Has a Cause of Action, Not Whether Plaintiff Has Stated a Cause of Action—Although the Complaint Alleged Interference With a Competitive Bidding Process Involving Public Entities, the Case Fit an Exception to the Rule that Competitive Bidding Issues Be Determined in an Article 78 Proceeding—It Was Alleged a Private Party (Defendant) Interfered with the Competitive Bidding Process

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE, IN THIS FOIL PROCEEDING, THE REQUESTED DOCUMENTS WERE ULTIMATELY PROVIDED... BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION, THE MAJORITY DID NOT CONSIDER...