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Warrantless Entry Into Defendant’s Home Justified by Exigent Circumstances—Juror’s Temporary Absence from the Trial (During Which the Trial Was Adjourned) and the Juror’s Inaccurate Statement He Had Discussed His Absence with the Judge Did Not Warrant a “Buford” Hearing or Disqualification

The First Department, in a full-fledged opinion by Justice Degrasse, affirmed defendant’s conviction, finding that the warrantless entry into defendant’s home to arrest him was justified by exigent circumstances and did not, therefore, constitute a “Payton” violation. The First Department further found that a juror’s temporary absence from the trial (during which the trial was adjourned), and the juror’s inaccurate statement he had discussed his absence with the judge, did not reveal juror bias and did not therefore warrant a “Buford” hearing or disqualification of the juror:

…[T]he motion court resolved the Payton issue, finding the detectives’ entry into defendant’s home justified by exigent circumstances.

Factors to be considered in determining whether exigent circumstances are present include “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause … to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry” … .

This list of factors is illustrative and not exhaustive … . The court’s finding of exigent circumstances is supported by evidence in the record that defendant had been identified by name and from a photograph as the assailant who shot the two men at the bar only hours before. Accordingly, there was probable cause for defendant’s arrest. Moreover, the Nissan Armada was traced to defendant’s nearby address where there was reason to believe he could be found. There was reason to believe defendant was armed inasmuch as he was said to have left the bar with his weapon. The record also supports the court’s conclusion that the circumstances of the Police Department’s entry into the apartment were peaceful. * * *

Defendant next argues that the court erred in failing to conduct an inquiry pursuant to People v Buford (69 NY2d 290 [1987]) with respect to a juror’s absence on a trial day. On February 7, 2012, during the third week of trial, juror number nine failed to appear at court and could not be reached by court personnel. With the consent of counsel, the court adjourned the trial for two days in order to enable a court officer to check on the juror at his home. On the adjourned date, the court officer reported that she met with juror number nine who told her that he wasn’t feeling well and that he had told Justice Webber that he would return to court on February 9, 2012. It was undisputed that no such conversation between the court and the juror occurred. The court decided to continue with the trial and address the juror’s conduct at its conclusion. Defense counsel stated that he was concerned about the juror’s fitness to continue with the trial. The court declined to conduct the requested inquiry and the trial continued to verdict. Defendant argues that the court erred in denying his request for a Buford inquiry. We disagree.

To the extent applicable, CPL 270.35(1) provides that a court must discharge a sworn juror where “the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial . . .” Defendant does not argue on appeal that the juror was grossly unqualified or that his apparent misconduct was substantial. Defendant’s only claim of error stems from the court’s refusal to conduct a Buford inquiry. Viewed in light of the request made before the trial court, defendant’s argument is based on a misconstruction of Buford. As stated by the Court of Appeals, the purpose of Buford was the creation of “a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may possess[] a state of mind which would prevent the rendering of an impartial verdict'” … . A juror with such a state of mind would be “grossly unqualified” … . * * *

… [I]t cannot be seriously argued in this case that juror number nine’s temporary absence from the trial and his inaccurate statement to the court officer indicated bias one way or the other. People v Paulino, 2015 NY Slip Op 05898, 1st Dept 7-7-15

 

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Defendant’s Motion to Vacate His Conviction, Supported by Evidence that (1) the People May Have Violated Their “Brady” Obligation to Inform the Defense of a Plea Deal Made In Return for Testimony and (2) a Juror May Have Had a Mental Disability, Should Not Have Been Denied Without a Hearing

The Fourth Department determined defendant had made sufficient evidentiary showings that (1) the People may have failed to inform the defense of a plea bargain made with the codefendant in return for testimony against the defendant, and (2) a juror may have been unqualified due to a mental disability.  Therefore defendant’s motion to vacate his conviction should not have been denied without a hearing;

Defendant moved to vacate the judgment on two grounds, neither of which may be decided without a hearing. First, he contended that the People violated their Brady obligation because they failed to disclose that they made a specific plea agreement with the codefendant at the start of the proceedings, contingent upon the codefendant testifying against defendant. Defendant contended that the People effectuated that agreement by, among other things, obtaining an indictment charging the codefendant with a lower level crime than the class B violent felony that was lodged against defendant, to avoid the plea bargaining restrictions in CPL 220.10 (5) (d) (ii), and by agreeing that the codefendant could withdraw his plea to the lower level felony and plead guilty to a misdemeanor if he cooperated against defendant. Defendant submitted evidence in support of his contentions, including transcripts of the prosecutor’s statements in the codefendant’s case regarding the agreement, and those transcripts also established that the prosecutor had discussed the agreement with the victim before it was implemented. * * *

The second ground advanced by defendant in support of his CPL article 440 motion was that a juror lacked the capacity to serve on the jury, and that the juror had misrepresented his employment status in response to questioning by the court. Defendant submitted some evidence establishing that the prospective juror may be developmentally disabled and that he may have misrepresented his prior and current employment, but defendant’s investigator was unable to obtain more information without judicial subpoenas that the court declined to provide. Inasmuch as defendant submitted evidence that called into question “whether this particular juror should have been entrusted with the responsibilities of fact finding [because the juror] did not understand the lawyers or the judge” …, the court further erred in denying the motion on the ground that the issue could be decided on direct appeal. People v Bailey, 2015 NY Slip Op 04987, 4th Dept 6-12-15

 

Sworn Juror Who Was From the Same Neighborhood as Defendant Stated His Fear of Drug Dealers Would Prevent Him from Reaching an Impartial Verdict—the Juror Was Properly Discharged as “Grossly Unqualified” and “For Cause” Based Upon a Newly Discovered Ground

The First Department determined a sworn juror was properly discharged as “grossly unqualified,” as well as “for cause.” The juror lived in the neighborhood where the crime occurred and where defendant and his accomplices lived. The juror told the court that his fear of drug dealers in his neighborhood would prevent him from reaching an impartial verdict. The juror had not mentioned his fear before he was sworn:

The juror’s fear provided grounds for the court to dismiss him as “grossly unqualified to serve” pursuant to CPL 270.35(1), even if the court did not cite the statutory phrasing, because it was clear that the juror could not remain impartial. Additionally, since the juror had not mentioned that he feared for his safety when questioned by the court and the parties before being sworn, he was properly discharged for cause, on a newly discovered ground, pursuant to CPL 270.15(4). People v Ward, 2015 NY Slip Op 04928, 1st Dept 6-11-15

 

Sworn Allegations About the Conduct of a Juror in Defendant’s Motion to Set Aside the Verdict Were Sufficient to Require a Hearing About Whether a Substantial Right Had Been Prejudiced

The Fourth Department determined defendant was entitled to a hearing on his motion to set aside the verdict:

The sworn allegations in defendant’s moving papers, i.e., that he learned after the verdict was rendered that a juror who had allegedly been “holding out” contacted defendant’s aunt between the first and second days of deliberation and discussed the likelihood of a guilty verdict when the jury reconvened the following morning, “required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant” … . People v Tucker, 2014 NY Slip Op 03415, 4th Dept 5-9-14

 

Defendant Did Not Have the Right to Be Present During Discussion of Exclusion of a Sworn Juror

The Second Department determined the defendant’s absence from a conference re: whether a sworn juror was grossly unqualified to serve did not violate defendant’s right to be present at all material stages of the trial:

The defendant’s right to be present at all material stages of trial was not violated by his absence from an in camera interview with a sworn juror, conducted in the presence of the prosecutor and defense counsel, to determine whether that sworn juror was grossly unqualified to serve (see CPL 270.35[1]). A defendant’s statutory right to be present at trial (see CPL 260.20) “extends to all material stages of the trial, including ancillary proceedings in which defendant’s presence could have a substantial effect on [his or her] ability to defend against the charges'” … . A conference to determine whether a sworn juror should be excluded (see CPL 270.35) is an ancillary proceeding, at which the defendant’s presence is “only necessary where defendant has something valuable to contribute'” … .

Under the circumstances presented here, the defendant’s presence at the conference could not have had a substantial effect on his ability to defend the charges, and the defendant could not have made a valuable contribution to the conference … . People v Peoples, 2015 NY Slip Op 02143, 2nd Dept 3-18-15

 

Court’s Failure to Inquire About a Juror’s Sleeping During Deliberations Required Reversal

The First Department reversed defendant’s conviction and ordered a new trial because the trial judge did not conduct a “probing inquiry” after being informed by jurors that a juror was sleeping during the deliberations:

The court should have conducted a “probing and tactful inquiry” … into whether, and to what extent, the juror had been sleeping, in order to determine whether this behavior rendered him grossly unqualified … . The court’s observation of jury demeanor during the supplemental instruction was not enough to resolve the issue of what was going on in the jury room, and this was not a case where reliance on a general instruction was an appropriate exercise of discretion … . Without any inquiry of the allegedly sleeping juror, or of any other juror, it is impossible to know whether the juror was innocuously dozing off from time to time, or whether he slept through so much of the deliberations that he could be deemed absent, such that the verdict was reached by a jury of 11 persons. Accordingly, we are constrained to reverse. People v Franqui, 2014 NY Slip Op 08736, 1st Dept 12-11-14

 

Court’s Failure to Conduct an Inquiry After Learning of a Juror’s Comments During Trial Indicating Her Lack of Impartiality Required Reversal

The Second Department determined that the trial judge had been made aware of information raising the possibility that a juror would not be impartial and erred in not conducting an inquiry:

The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case … . In addition, the “trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . Although the Court of Appeals acknowledged that an “in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror” (People v Buford, 69 NY2d 299 n 4), here, defense counsel wanted the juror to be questioned.

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (id. at 299) of juror number seven, during the trial, when it was alleged that he had stated “the evidence speaks for itself or they got themsel[ves] into this situation” …, and subsequently, after deliberations had commenced, when it was alleged that juror number seven had engaged in flirtatious conduct with someone connected to the defendant as well as someone connected to the codefendant … . Since the court’s general inquiry of the jurors with respect to the first incident failed to meet the requirements of Buford …, and no inquiry at all was made with respect to the later incidents …, it is unknown whether the juror held an opinion that affected his ability to be impartial … . Such an error is not subject to harmless error analysis and, thus, the conviction must be reversed … . People v Henry, 2014 NY Slip Op 04962, 2nd Dept 7-2-14

 

Trial Judge’s Failure to Conduct an Inquiry Concerning a Juror’s Conduct During the Trial Required Reversal

The First Department reversed a conviction because the trial judge did not conduct an inquiry (in which defense counsel could participate) concerning the disqualification of a juror relating to conduct occurring during the trial.  The juror had informed a court officer that the juror had been invited to a breakfast with the District Attorney:

In People v Buford (69 NY2d 290 [1987]), the Court of Appeals set forth the basic framework to be followed when the trial court is considering disqualifying a juror because of conduct that occurs during the trial. As the Court noted, the court should conduct an inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. Although the Court of Appeals acknowledged that “[a]n in camera inquiry may not be necessary in the unusual case involving an obviously trivial matter where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror,” here defense counsel wanted the juror questioned (id. at 299 n 4). We conclude that there should have been an inquiry, in which defense counsel could participate, because the disclosure indicated a possible issue related to that juror’s continued ability to serve in an impartial manner… .  People v Ventura, 2014 NY Slip Op 001182, 1st Dept 1-14-14

 

Defense Counsel Should Have Been Present During Exchange Between Judge and Juror Which Resulted in Disqualification of Juror/Judge Should Have Disclosed Reason for Disqualification

The Second Department determined defense counsel’s absence from an exchange between the judge and a juror, which led to the disqualification of the juror, required reversal:

The juror reported that a third party had told him that the defendant had an “aggressive demeanor,” was a “little wild,” was “somebody you don’t mess around with,” and was someone he “should avoid.” The trial court, in discharging the juror, merely told defense counsel that this juror had lied to the court and, thus, was grossly unqualified to continue serving pursuant to CPL 270.35.

“[A]n inquiry to determine the existence and extent of prejudice affecting the gross disqualification of a sworn juror . . . is inextricably related to defendant’s entitlement to a fair hearing … . Therefore, the unique, indispensable presence of at least the single-minded counsel for the accused’ … is minimally necessary to safeguard that fundamental fairness to defendant” … .

Here, the absence of defense counsel from the in camera interview, coupled with the court’s failure to disclose what the juror said, deprived the defense of the opportunity to inquire as to whether the juror made similar prejudicial statements to any other jurors… . People v Otigho, 2014 NY Slip Op 00128, 2nd Dept 1-8-14

 

New Trial Ordered: Juror Found “Grossly Unqualified” by the Trial Judge Should Have Been Dismissed/One Juror Was Absent from the Deliberations for About An Hour

The Third Department ordered a new trial was because one of the juror’s, juror No. 4 should have been dismissed after the trial court determined that the juror was “grossly unqualified,” and because deliberations continued while juror No. 4 was absent from the jury room for about an hour:

“If at any time after the trial jury has been sworn and before the rendition of its verdict, . . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . , the court must discharge such juror” (CPL 270.35 [1]…  ).  “A juror will be deemed to be grossly unqualified to serve only when, after conduct[ing] a probing, tactful inquiry into the specific circumstances, it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict” … .  Although the trial court traditionally is accorded “great deference in deciding whether a juror is grossly unqualified” …, inasmuch as juror No. 4 repeatedly expressed her inability to render a decision one way or the other, and County Court expressly found that she was both grossly unqualified to serve and unable to afford either the People or defendant a fair trial, County Court erred in failing to discharge juror No. 4… .

Moreover, even assuming that we discerned no impropriety with respect to juror No. 4’s continued service on the jury, we nonetheless would be compelled to reverse defendant’s conviction and order a new trial, as it is readily apparent from the record that the jury deliberated – on at least one occasion – with fewer than 12 members present.  CPL 310.10 (1) provides, in relevant part, that “[f]ollowing the court’s charge, . . . the jury must retire to deliberate upon its verdict in a place outside the courtroom . . . and must, except as otherwise provided in [CPL 310.10 (2)], be continuously kept together under the supervision of a court officer.”  Consistent with the provisions of CPL 310.10 (2), “[a]t any time after the jury has been charged or commenced its deliberations, and after notice to the parties and affording such parties an opportunity to be heard on the record outside of the presence of the jury, the court may declare the deliberations to be in recess and may thereupon direct the jury to suspend its deliberations and to separate for a reasonable period of time to be specified by the court.”  Additionally, “[b]efore each recess, the court must . . . direct [the jury] not to resume its deliberations until all twelve jurors have reassembled in the designated place at the termination of the declared recess.” * * *

Here … juror No. 4 was absent from the jury room for slightly more than one hour… . People v Cridelle, 104319, 3rd Dept 12-19-13

 

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