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ONE PROSPECTIVE JUROR TESTIFIED THE DEFENDANT ATTEMPTED TO COMMUNICATE WITH HER; THE JUDGE GRANTED THE PEOPLE’S MOTION TO DISMISS THE ENTIRE JURY PANEL; BECAUSE THE JUDGE DID NOT FIRST QUESTION THE REMAINING JURORS ON THE PANEL ABOUT THEIR ABILITY TO BE FAIR AND IMPARTIAL BEFORE DISMISSING THEM, THE JUDGE EFFECTIVELY DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A PARTICULAR JURY CHOSEN ACCORDING TO LAW (SECOND DEPT).

The Second Department, reversing the judgment of conviction and ordering a new trial, determined the judge should not have dismissed the entire jury panel without conducting an inquiry. One prospective juror on the panel alleged the defendant tried to communicate with her. The People moved to dismiss the panel which the judge granted without questioning the remaining jurors about their ability to be fair and impartial:

“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” … . Pursuant to Criminal Procedure Law article 270, the first 12 members of the jury panel who are not excluded as prescribed by the statute constitute the trial jury … . Where a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” ( … see CPLR 270.15 … ). “A defendant ‘is . . . entitled to insist that the jury shall be selected according to methods established with a view to secure a just and impartial administration of the jury system . . . The court cannot arbitrarily, and without cause, set aside a competent juror. Neither the court nor the parties can select the jury, except in the way pointed out by the statute'” … . * * *

By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” … . People v Gaston, 2026 NY Slip Op 05971, Second Dept 10-14-26

Practice Point: A judge cannot arbitrarily and without cause dismiss a competent juror. Here the judge dismissed an entire panel of prospective jurors because one prospective juror alleged the defendant tried to communicate with her. In that situation, the judge should have questioned the remaining prospective jurors about their ability to be fair and impartial to determine if there was cause for dismissal.​

 

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