The People v. Peter Wells
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 218
The People &c.,
Respondent,
v.
Peter Wells,
Appellant.
Kendra L. Hutchinson, for appellant.
Donna Aldea, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
At trial, after some but not all jurors had been sworn,
and while voir dire was ongoing, one of the sworn jurors advised
a court officer that there was important information he neglected
to tell the court.
When questioned, the juror revealed that he
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No. 218
worked the night shift and would be coming to court directly from
work, raising concerns about his ability to stay awake during the
trial (the juror explained that he had slept in the jury room the
day before).
Defense counsel argued that the juror was able to
serve and could be ordered not to work nights until the trial
ended.
The court declined to issue such a directive and excused
the juror based on a finding that he would be unable to remain
sufficiently alert during court proceedings.
We cannot say that
the trial court -- which was in the best position to assess the
juror's level of attentiveness -- abused its discretion in
discharging the juror after determining that he would be
incapable of properly performing his duties.
On appeal, citing differences between the language in
CPL 270.15 and CPL 270.35, defendant asserts that the court
lacked the authority to discharge the juror under the purportedly
more narrow language in CPL 270.15.
But defendant never referred
to CPL 270.15 or relied on any restrictive statutory language in
the trial court.
Instead, defendant essentially argued against
an incapacity discharge, contending that the juror was "able" to
serve.
Thus, defendant's current claim is not preserved for our
review.
The dissent engages in an analysis of the differences
between CPL 270.15 and CPL 270.35 -- but neither party raised an
argument in the trial court warranting such a discussion.
Nor do
we find, as the dissent suggests, that a court has "inherent
authority" to discharge a sworn juror based on competing work
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CPL 270.15 permits discharge of a sworn juror based
on incapacity and the discharge here emanated from the trial
court's concern that the juror would be incapable of remaining
awake and attentive during the trial -- an essential prerequisite
of proper jury service.
Defendant's contention relating to the trial court's
failure to charge an affirmative defense is similarly not
preserved for review and his remaining pro se claims do not
require reversal.
Finally, we reject defendant's challenge to
the constitutionality of his adjudication as a persistent violent
felony offender and persistent felony offender (see People v
Bell, __ NY3d __ [decided today]; People v Quinones, 12 NY3d 116,
cert denied 130 S Ct 104 [2009]).
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People v Peter Wells
No. 218
LIPPMAN, Chief Judge (dissenting):
After answering with evident comprehension and even
alacrity1 numerous questions put to him by the court and the
parties, the juror at issue was found acceptable and sworn.
Although the voir dire of the juror ranged over numerous
subjects, including the nature of his employment, no inquiry was
made of him, and he did not volunteer information, as to the
hours during which he worked or whether jury service would for
him entail financial hardship.
It subsequently came to the
court's attention, through a court officer, that the juror was
employed at night.
The Court then inquired of the juror and
learned that he worked as a per diem temp employee at a bank from
midnight to 8:00 AM five nights a week and that, although he then
felt "fine," on a given day he might have difficulty
concentrating at trial after working at night.
The parties'
ensuing re-examination of the juror disclosed that he would lose
income if he did not work and that he preferred not to remain on
the case because, as he put it, "at this time I still have to pay
my bills."
The court did not ask the juror whether he intended
1
The juror, after being greeted and asked by the court if he
was settled, replied "I'm good. You don't have to ask me all of
that stuff, I agree."
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No. 218
Instead, it asked him to confirm that
it would be an economic hardship if he did not work, and the
juror obliged.
Out of the juror's presence, defense counsel opposed
his discharge:
"I think [the juror] should remain on the
jury. It is his civic obligation. If he
[sic] started to extend this sort of
rationale to the entire panel we would
probably lose half of them. So many people
now are independent contractors and they
don't necessarily work for employers who
extend those sort of benefits, paid jury
service.
"This trial we know is going. It may very
well be done by Friday, so now it is Tuesday,
so what is the worse that is going to happen
to [this juror]? He's going to be out three
days without pay, if he stays out, and
furthermore, he said for the last two days he
said I'm not out of it, that is what he said.
He was able to follow the voir dire and the
questions that I was asking and Miss Buchter
[the prosecutor] was asking, so I think he is
perfectly suitable and able" (emphasis
added).
The prosecutor responded that although she "did
initially like this juror," she wished that he had disclosed his
financial situation before he had been selected and now thought
that economic pressure might interfere with his fairness and
impartiality.
The Court remarked that he too wished the juror had
spoken up sooner.
He, nonetheless, expressed the view that the
juror's need to work would be difficult to reconcile with the
attentional demands of jury service and on that ground discharged
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the juror, contemporaneously noting defendant's exception for the
record.
Defendant argues that the court was without authority
to discharge a sworn and able juror.
The argument is premised
upon CPL 270.15 (3), which provides in relevant part, "[i]f
before twelve jurors are sworn, a juror already sworn becomes
unable to serve by reason of illness or other incapacity, the
court must discharge him or her and the selection of the trial
jury must be completed in the manner prescribed in this section."
Contrary to the majority's characterization, defendant's argument
does not rely on CPL 270.35.2
Defendant's argument, fully
preserved by his objection to the discharge of a "perfectly
suitable and able" juror, is rather that the standard set forth
in CPL 270.15, i.e., inability to serve, must control because, in
the context of a statutory scheme comprehensively dictating the
procedure for the qualification and disqualification of jurors,
it alone articulates the grounds for disqualifying sworn jurors
prior to the commencement of trial.
The main strain of the People's response to this
argument has not been that the juror was in fact unable to serve
(although that improbable contention is eventually made) but that
had he been discharged after the jury's empanelment the
2
Ironically, the significance of that provision, governing
post-empanelment discharges, in relation to CPL 270.15 (3), only
became an issue in this litigation when the People urged for the
first time on appeal that the discharge standards set forth in
the two provisions were essentially interchangeable.
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No. 218
statutorily available grounds for discharge would have been more
numerous.
It is, in this connection, postulated that the grounds
for juror discharge should be understood generally to narrow as
the proceedings progress and, accordingly, that, even though the
express statutory grounds for pre-empanelment discharge are
fewer, they are really at least as numerous and inclusive as the
post-empanelment grounds set forth in CPL 270.35.
That statute
provides, in relevant part:
"If at any time after the trial jury has been
sworn and before the rendition of its
verdict, a juror is unable to continue
serving by reason of illness or other
incapacity, or for any other reason is
unavailable for continued service, or 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, the court must discharge such
juror" (CPL 270.35[1]).
The People's argument is flawed, both because it is
wrong to assume that the Legislature did not intend to limit the
grounds for pre-empanelment juror discharge as it evidently did,
and because even if there were some reason to suppose that the
additional discharge grounds available under the post-empanelment
provision were available as well prior to empanelment, there
would still have been no basis for the subject juror's discharge.
Jury selection is for the parties, not the court.
And,
of course, particular care must be taken during jury selection in
criminal proceedings to assure that judicial involvement does not
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intrude upon the defendant's "constitutional right to a trial by
a particular jury chosen according to law, in whose selection
[the defendant] has had a voice" (People v Buford, 69 NY2d 290,
297-298 [1987] [internal quotation marks and citations omitted]).
While jury selection is underway, the parties, subject only to
the procedural limitations imposed by statute, are accorded
nearly plenary control over the jury's constitution.
It is their
prerogative to determine through the exercise of peremptory and
for cause challenges who among the venire will and will not judge
their case.
The role of the judge respecting the parties'
selections is, prior to the trial's commencement, commensurately
circumscribed precisely as set forth in CPL 270.15 (3); he or she
may not interfere with the parties' choices unless it is manifest
that an agreed upon and sworn juror is unable to serve by reason
of illness or other incapacity.
Once the jury is fully constituted and empanelled, the
judge's role becomes more complex.
He or she must, while
continuing to honor the parties' jury selections to the extent
possible, shepherd the trial towards a verdict and respond to
developments impairing the integrity of the proceeding.
It is to
meet these responsibilities arising only after empanelment that a
judge is accorded new power pursuant to CPL 270.35 to discharge
jurors who become unavailable for continued service, or who
prove, based on information not disclosed during jury selection,
to be grossly unqualified, or who have engaged in gross
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No. 218
misconduct not necessitating a mistrial.
These powers are
uniquely keyed to the demands of an unfolding trial; they are
completely unnecessary and therefore not afforded in the context
of jury selection.
But even if they were, they would not avail
the People in their defense of the discharge at issue.
There is no suggestion that that discharge could have
been supported upon the ground of gross misconduct and it is
manifest that the juror was not grossly unqualified -- there is
absolutely no indication that he was biased or incapable of
rendering an impartial verdict.
Nor does the record disclose any
ground to suppose that he was "unavailable for continued
service."
It is true, of course, that he preferred not to remain
on the jury.
But that is a preference doubtless shared by very
many jurors -- it cannot support an inference of unavailability
unless the statute is to be read to require the wholesale
discharge of sworn jurors (see People v Michael, 48 NY2d 1, 10
[1979]).
Similarly inadequate to support an inference of
unavailability was the circumstance that this juror would perhaps
have been forced during the trial to choose between his
employment and his civic obligations.
Jurors routinely have this
choice forced upon them and in making it suffer some economic
loss and even some measure of hardship, but again, this cannot be
deemed tantamount to unavailability pursuant to CPL 270.35; once
a finding of unavailability is made, the court must under the
statute discharge the juror and the practical result of mandated
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No. 218
discharges based on such a common incident of jury service, would
be the utter decimation of the jury pool.
This juror was not by
reason of his night time employment any more unavailable than a
juror employed during the day.
Indeed, the court's conclusion as
to his unavailability appears to have been paradoxically premised
upon the circumstance that the juror had an option ordinarily
foreclosed to jurors with day jobs, i.e., temporarily discharging
both his jury and employment duties.
Manifestly the prospect
that the juror might elect to do both did not render him
unavailable.
The expectation of the court should have been that
this juror, like any other ordinarily employed person called to
serve on a jury and selected for that purpose without mention of
any hardship that such service would entail, would make the
adjustments temporarily required to facilitate the discharge of
his civic duty.
This is particularly so since, as defendant's
counsel noted, the trial was not expected to be lengthy.
When all is said and done neither the applicable
statute, CPL 270.15, nor its inapplicable cousin, CPL 270.35,
furnishes a basis for this juror's discharge and the People are
reduced to arguing not simply that the power of discharge
afforded under the former is equal to that afforded under the
latter, but that CPL 270.15 is not a limiting provision at all -that it simply states when a juror must be discharged, not when a
juror may be discharged.
Indeed, the People urge that a court
should be deemed to possess inherent authority to discharge a
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No. 218
sworn juror so long as there is a "valid, cogent reason," other
than illness or incapacity.
This, it appears despite the
majority's disclaimer, is the position that this Court today
embraces when it concludes that a court has discretion to
discharge a sworn juror as unavailable because of competing work
commitments.
discharge.
There was, after all, no other reason for the
Contrary to the majority's suggestion, there is
absolutely nothing in the record to suggest that the juror
manifested any present incapacity; the discharge was based solely
on the court's speculation that if the juror both worked and
served on the jury he might not be attentive.
Leaving aside the circumstance that, as noted, most
jurors have such commitments and that by deeming such commitments
grounds for a sworn juror's discharge the majority has in its
unsigned memorandum freighted into the law broad judicial power
fundamentally at odds with a defendant's normative right to
retain the jurors he or she has selected, it has long been the
rule that jury selection is strictly governed by statute: "The
law prescribes the qualifications of jurors.
add to, or detract from them.
The court cannot
It cannot itself select the jury,
directly or indirectly" (Hildreth v City of Troy, 101 NY 234, 239
[1886]).
There is no statutory authorization for power of the
sort hypothecated by the majority.
The governing statute
mandates the discharge of sworn jurors in closely defined
circumstances; nowhere does it provide for the discretionary
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No. 218
discharge of a juror, much less for discharge whenever the court
believes that there is a "valid, cogent reason" to dispense with
a juror's services.
Manifestly, such open-ended discretionary
power is not inferrable from the statute's narrowly drawn
discharge mandate.
contrary.
The proper inference is precisely to the
We have, in fact, held that the only permissible
challenge to a sworn juror is a challenge for cause pursuant to
CPL 270.15 (4).
Indeed, that the "express provision for the
exercise of a challenge for cause after a juror is sworn
[provided by ยง 270.15 (4)] must be taken as a legislative
direction that any other type of challenge to a sworn juror is
impermissible" (People v Harris, 57 NY2d 335, 349 [1982]).
By
parity of reasoning, the express provision in the same
encompassing statute of grounds upon which a sworn but not yet
empanelled juror may be discharged must be taken as excluding
other grounds in justification of the same purpose.
The
majority's unexplained contrary approach essentially sanctions a
juror challenge upon grounds that would, until now, have sufficed
only to sustain peremptory disqualification.
This is not
compatible with the statute (see id.).
The People's remaining argument, is that the juror was
subject to challenge and discharge for cause pursuant to CPL
270.15 (4).
The argument, however, is completely unpreserved,
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No. 218
never having been made before the trial court3 or even raised at
the Appellate Division, and, in any event, without merit.
There
was no basis for the court to conclude, as the People lately
contend, that the juror's mental state was "likely to preclude
him from rendering an impartial verdict based upon the evidence
adduced at the trial" (CPL 270.20 [b]).
The speculation that if
he both worked and sat on the jury he might be inattentive did
not warrant the conclusion that he was likely to render a biased
verdict and, in fact, the court did not make any such finding.
Were I not of the view that reversal was required by
reason of the juror's improper discharge, I would vote to remit
the matter for resentencing.
While I believe that defendant's
sentencing as a persistent violent felony offender may be
compatible with the rule of Apprendi v New Jersey (530 US 466
[2000]) in light of Almendarez-Torres v United States (523 US 224
[1998]), for the reasons stated in my partial dissent in People v
Battles (
NY3d
[2010]) I cannot conclude that his sentencing
as a persistent felony offender under New York's discretionary
sentencing statute (CPL 400.20 [1]) is capable of surviving
constitutional scrutiny.
3
The closest the trial assistant came to even hinting at a
challenge for cause was when, after defendant's counsel objected
to the juror's discharge, she observed that his work situation
"may interfere with him being a fair and impartial juror"
(emphasis added). This does not state a ground for a for cause
challenge to a sworn juror.
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No. 218
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Order affirmed, in a memorandum. Judges Ciparick, Graffeo, Read,
Smith, Pigott and Jones concur. Chief Judge Lippman dissents in
an opinion.
Decided December 14, 2010
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