You are here: / / THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT...
,

THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a concurrence, determined judge improperly dismissed a juror in the absence of an adequate inquiry:

After juror No. 1 was selected and sworn in, but before jury selection had concluded, County Court made a record that juror No. 1 “needed to go home due to some health issues” but was advised, and agreed, to return the next day at 9:00 a.m. However, as of 9:28 a.m. the next morning, the court noted that juror No. 1 had not returned and, because the juror had left ill the prior day, the court found it “necessary to just replace her with the first alternate at this point.” Defense counsel then registered an exception to the court’s replacement of juror No. 1 … . Thereafter, County Court failed to conduct any inquiry regarding the absence of juror No. 1. When asked whether the court had received any notification from the juror, the court responded, “No. Basically, I don’t have juror number one. She’s just plain not here. She left early yesterday ill . . . . So, we are going to replace juror number one.” Although replacement of a juror is generally left to the court’s discretion, “[w]ithout a reasonably thorough inquiry, . . . the exercise of the court’s discretion on the ultimate issue of whether or not to replace the juror [was] uninformed” … .. County Court was certainly not required to wait two hours before substituting juror No. 1, but, on the record before us, it impermissibly presumed that she was “unavailable for continued service without conducting the requisite reasonably thorough inquiry and determining that [the] juror [was] not likely to appear within two hours” … . People v Watts, 2023 NY Slip Op 02144, Third Dept 4-27-23

Practice Point: Here a juror didn’t show up at 9:30 a.m. and the judge replaced her without making an inquiry. Defense counsel preserved the error by registering an exception. A new trial was ordered.

 

You might also like
LOCAL LAW WHICH HAD BEEN DECLARED VOID COULD NOT BE THE BASIS FOR DETERMINING WHETHER PETITIONER’S USE OF THE LAND FOR MINING WAS A VALID PREEXISTING NONCONFORMING USE (THIRD DEPT).
THE EVIDENCE SUBMITTED TO THE GRAND JURY IN THIS DRUNK-DRIVING-ACCIDENT CASE SUPPORTED THE TWO COUNTS OF DEPRAVED INDIFFERENCE ASSAULT STEMMING FROM INJURIES SUFFERED BY THE TWO PASSENGERS; SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE COUNTS (THIRD DEPT).
THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT).
FALL ON SIDEWALK NEAR PLACE OF EMPLOYMENT NOT COMPENSABLE, CRITERIA EXPLAINED (THIRD DEPT).
THE BUILT-IN WATER HEATER WAS A “STRUCTURE” AND PLAINTIFF WAS ENGAGED IN “REPAIR” WITHIN THE MEANING OF LABOR LAW 240(1); A SHELF ROUTINELY USED AS A PLATFORM TO ACCESS THE BUILT-IN WATER HEATER COULD CONSTITUTE A DANGEROUS CONDITION WITHIN THE MEANING OF LABOR LAW 200 (THIRD DEPT).
Transcriber of Administrative Hearings Was an Employee Entitled to Unemployment Insurance Benefits—Appeals Board Not Required to Follow or to Explain Why It Didn’t Follow an “Unappealed” Ruing by an Administrative Law Judge
COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE.
THE JUDGE, IN DENYING DEFENDANT’S SECOND MOTION TO SET ASIDE HIS SENTENCE, SHOULD NOT HAVE PRECLUDED DEFENDANT FROM MAKING “ADDITIONAL APPLICATIONS” WITHOUT THE PERMISSION OF THE COURT (THIRD DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS TAX FORECLOSURE PROCEEDING, THE COUNTY MUST PROVE IT COMPLIED WITH THE... IN THIS SUIT BY YELLOW CAB MEDALLION OWNERS AGAINST THE NYC TAXI AND LIMOUSINE...