People v Cavalluzzi
Annotate this CaseDecided on September 25, 2023
Supreme Court, Queens County
The People of the State of New York,
against
Frank Cavalluzzi, Defendant.
Ind. No. 1020/2020
For Defendant: Michael Horn, Esq.
For the People: ADAs Alexia Campoverde and Roni Piplani
Michelle A. Johnson, J.
The defendant stands charged with, inter alia, Attempted Murder in the Second Degree and related counts. Defendant demanded and received a jury trial which started on August 7, 2023. On that date, the Court requested that the Commissioner of Jurors (hereafter COJ) return a venire of prospective jurors for jury selection in this case. The COJ returned a panel of sixty-four (64) prospective jurors on the same date. The Court's clerk swore-in the prospective jury panel and voir dire commenced. By August 8, 2023, the parties had completed two (2) full rounds of jury selection and exhausted the entire first venire returned to the Court. From the first panel of prospective jurors, the parties selected eleven (11) petit jurors for trial.
On August 9, 2023, the Court requested that the COJ return a second venire of prospective jurors for continued jury selection. The COJ returned a second panel of fifty (50) prospective jurors on the same date. The Court's clerk swore-in the second prospective jury panel. Immediately thereafter defendant objected to the entire venire on grounds that it failed to reasonably represent a fair cross-section of the community resulting in substantial prejudice in violation of his Sixth and Fourteenth Amendment Constitutional Rights. Specifically, defendant, a white male, contends that of the fifty (50) prospective jurors returned to the Court, only three (3) or four (4) appear to be white males, owing to an unconstitutional under-representation of white males residing in the community of Queens County. Upon defendant's challenge, the Court suspended jury selection and adjourned the case for defendant to perfect his claim in writing as mandated by CPL § 270.10(1).[FN1] Upon consideration of the papers submitted and oral [*2]arguments, defendant's motion challenging the second venire of prospective jurors returned to the Court is denied for the reasons stated below.
While it is well established that defendants are not entitled to a jury of any particular composition, it is equally well settled that the deliberate and intentional exclusion of a particular community group or class of persons from jury service violates a defendant's constitutional rights under the Sixth and Fourteenth Amendments (Duren v. Missouri, 439 US 357 [1979]; Taylor v. Louisiana, 419 US 522 [1975]; People v. Parks, 41 NY2d 36 1976]; People v. Guzman, 89 AD2d 14 [2nd Dept 1982], affirmed 60 NY2d 403 [1983], cert denied 466 US 91 [1984]). Despite defendant's federal constitutional rights, states retain wide discretion in formulating procedures for jury selection provided that the source from which juries are derived reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty (Taylor v. Louisiana at pg. 528; People v. Guzman, supra). Upon such a challenge, the Court must determine all issues of fact and questions of law regarding whether there has been such a departure from the requirements of the appropriate law in the drawing or return of the panel as to result in substantial prejudice to the defendant (CPL § 270.10[2]).
These constitutional rights are codified by New York State Criminal Procedure Law Section 270.10 which provides that a criminal defendant is entitled to a petit jury drawn from a jury pool that is reasonably representative of a cross-section of the community (see People v. Parks at pg 42). It proscribes that "a challenge to the panel is an objection made to the entire panel of prospective trial jurors returned for the trial of the action and may be taken to such panel or to any additional panel that may be ordered by the court...on the ground that there has been such a departure from the requirements of the judiciary law in the drawing or return of the panel as to result in substantial prejudice to the defendant" (CPL § 270.10[1]). A timely challenge to the entire panel must be made before jury selection commences or it is waived (CPL § 270.10[2]).
To establish an unconstitutionally constituted jury panel, defendant has the burden of moving forward with sufficient information to demonstrate deliberate and intentional systematic discrimination in the jury selection process (People v. Parks, supra). To do so, he must show: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that such underrepresentation is due to the systematic exclusion of the group in the jury selection process (Duren v. Missouri, supra); People v. Guzman, supra; People v. Gilchrist, 98 AD3d 1232 [4th Dept 2012], lv denied 20NY3d 932 [2012]; People v. Madison, 133 AD33d 553 [1st Dept 2015], lv denied 27 NY3d 1002 [2016]). Once established, the burden then shifts to the People to demonstrate that the attainment of a fair cross-section of the community is incompatible with a significant state interest which is manifestly and primarily advanced by those aspects of the jury selection process that result in the disproportionate exclusion of a distinctive group (People v. Guzman, supra).
In Duren v. Missouri (439 US 357), the United States Supreme Court set forth a road map of factors relevant to the court's determination of a jury panel challenge on ground of a fair cross-section of the community claim. First, the court must determine whether the class at issue [*3]qualifies as a distinctive group; next, the court must identify the relevant jury pool which "bears the brunt of defendant's claim of systematic exclusion;" then, the court must compare the disparity between the identified distinctive group's representation in the community and in the relevant jury pool (Duren v. Missouri, supra).
In this case, defendant posits that white males constitute the distinctive group that was underrepresented in the second venire returned to the Court for jury selection; and Queens County residents constitutes the relevant population and/or community from which prospective jurors were drawn. Defendant alleges that the first venire comprised of sixty-four (64) prospective jurors returned to the court for jury selection was comprised of only one (1) white male; and the second challenged venire comprised of fifty (50) prospective jurors was comprised of only four (4) to five (5) white males. Defendant thus avers that the total representation of white males across the two panels returned to the court for jury selection was about six percent (6%) when compared to the forty-six percent (46%) of Queens County residents who identify as white individuals in 2020.[FN2] As a result, defendant contends that this great disparity and underrepresentation of white males in the second venire returned to the court for jury selection deprived him of his 6th Amendment right to a petit jury "drawn from a source fairly representative of the community" (Taylor v. Louisiana, supra).
Conversely, the People posit that defendant's challenge to the second venire returned to the court for jury selection is time barred because he had already commenced jury selection with the first venire of prospective jurors returned to the court and selected eleven (11) petit jurors for the trial. As such, the People aver that defendant has waived, by operation of law, any right to challenge any and all subsequent venires returned to the court for jury selection (People's Affirmation in Opposition, pg 1). The People further contend that defendant's conclusory allegations of white male underrepresentation in the second panel returned to the court are insufficient to establish a prima facie case of this group's systematic exclusion from the jury selection process (Id.).
Timeliness of the Defendant's Jury Panel Challenge
Defendant posits that he did not waive his objection to the additional second venire of prospective jurors returned to the Court since he lodged a timely challenge prior to commencing jury selection of that panel. Conversely, in reliance on People v. Consolazio (40 NY2d 446 [1976]), the People contend that "the challenge must specifically and only be made before jury selection as a whole begins — long before a single juror, let alone eleven have been selected" (People's Memorandum of Law, pg 3).
The People's reliance on Consolazio is misplaced. In that case, defendant's challenge to the entire jury panel was flawed in that defendant Consolazio made an oral challenge to the jury panel prior to commencement of jury selection, but never perfected the challenge in writing until after a petit jury was selected in clear violation of the strict mode and time requirements set forth in CPL § 270.10. To hold otherwise, would mean that a defendant is required to object to an unforeseen panel of prospective jurors. This conclusion is belied by the plain language of the statute. CPL § 270.10(2) sets forth the time requirements for a challenge to a jury panel based on a fair representative cross-section of the community claim as guaranteed by the 6th and 14th [*4]Amendments (see also, Duncan v. Louisiana, 391 US 145 [1968] [such constitutional rights apply to the states by incorporation into the Due Process rights guaranteed under the 14th Amendment). Such a challenge must be made in writing and prior to commencement of jury selection or the objection is waived, by operation of law (CPL § 270.10[2]). CPL § 270.10(1) specifically defines such a challenge as one made to the "entire panel of prospective trial jurors returned for the trial of the action" or to "any additional panel that may be ordered by the court." Hence, a timely objection to a jury panel on this ground exists prior to commencement of jury selection with regard to the specific panel returned to a court for the trial of an action. Indeed, in Lockhart v. McCree, the U.S. Supreme Court recognized that the point at which an accused is entitled to a fair representative cross-section of the community is when the names of jurors are put in a box from which the panels of prospective jurors are drawn (Lockhart v. McCree, supra citing Pope v. United States, 372 F.2d 710 [8th Cir. 1967] vacated on other grounds 392 US 651 [1968]). Accordingly, this Court finds that defendant timely objected to the entire second venire returned to the Court for the trial thereby preserving the instant challenge.[FN3]
Analysis of the three part Duren Test
At the outset, this Court finds that residents of Queens County is the relevant community at issue and white males constitute a distinctive and cognizable group within that community (cf. Batson v. Kentucky, 46 US 79 [1986][unconstitutional to exercise peremptory challenges based on race]; People v. Allen, 86 NY2d 101 [1995][unconstitutional to exercise peremptory challenges based on sex]; cf. also, People v. Kern, 75 NY2d 638 [1990]).
Relevant Jury Pool
The New York State Court System implements a two-step process for qualifying and summoning jurors: (1) juror qualification and (2) summoning qualified jurors to serve (2022 Annual Report Pursuant to Judiciary Law Section 528).[FN4] For a petit jury, the relevant jury pools include the source list from which prospective jurors are screened by qualification questionnaires mailed randomly to selected names and addresses on the list within their county of residence;[FN5] the qualified list from which prospective jurors are deemed qualified to serve pursuant to Jud. Law § 510 based on responses to qualification questionnaires; and venires which are the group of qualified prospective jurors who appear in response to a summons for jury service from whom a jury panel will be chosen (Id.).In this case, the relevant jury pool is the second panel of fifty (50) prospective jurors ordered and returned to this Court for the trial of this action on August 9, 2023.
Fair Representative Cross-Section of the Community Analysis
Defendant bears the burden of establishing a prima facie case that the representation of white males in the second jury panel returned to the Court was unfair and unreasonable in relation to the number of white male residents of Queens County. In support of this claim, defendant relies on the 2020 United States Census Bureau report in contending that 46.5% of Queens County residents identify as "white alone;" 23.9% of Queens County residents identify as "white alone, not Hispanic or Latino;" and 51.1% of Queens County residents identify as "female" (see Attachment to Defendant's Memorandum of Law dated 8/9/23). Notably, the 2020 US Census Bureau report contained no demographic information regarding the "male" or a combination of the "white male" representation among Queens County residents (Id.).
Defendant further relied on the demographic statistics contained in the 2022 Annual Report Pursuant to Jud. Law § 528 (see People's Exhibit A attached to its Memorandum of Law dated 8/10/23) which reports that in Queens County: 82% of residents are eighteen (18) years of age or older; 48.9% of residents identify as female; 42% of residents identify as male; and 29% of residents identify as white. Here again, the 2022 Annual Report contained no demographic information pertaining to Queens County residents who identify as both white and male.
The defendant further asks this Court to infer that the purported underrepresentation of white males included in the first panel returned to the Court for jury selection represents a pattern of that distinctive groups' lack of representation in the second panel returned to the Court. Defendants' analysis is flawed in this regard. Defendant concludes that since only one white male was selected as a petit juror from the entire first venire of sixty-four (64) prospective jurors returned to the Court for jury selection that group was underrepresented. However, defendant concedes that he failed to take note of the number of white males included in the first venire returned to the Court including prospective jurors of that distinctive group who were excused for cause and/or peremptorily challenged.
Whereas here, defendant has provided no reliable statistical data relative to the representation of "white male" residents in the Queens County community, the Court is unable to discern whether the second venire, comprised of fifty (50) prospective jurors, approximately 8% of which appeared to be white males, constitutes a substantial divergence from that groups' representation in the community. Therefore, defendant fails to satisfy the second prong of the Duren Test.
Systematic Exclusion Analysis:
Given defendant's inability to establish the underrepresentation prong of the Duren Test, this Court need not reach the issue of systematic exclusion. Nonetheless, defendant posits that the COJ's community outreach activities are indicative of a systematic process designed to proactively include underrepresented groups of individuals in the jury selection process but not directed to secure participation by white males in the community; and that the COJ ceased enforcement efforts against prospective jurors who fail to respond to qualification questionnaires and/or jury summonses to appear for jury service since the 2020 Global Pandemic. However, the inferences defendant asks this Court to draw do not flow reasonably from the purported facts he proffers. First, the COJs outreach activity to underrepresented groups constitutes a process of inclusion rather than one of systematic exclusion of a particular group. Second, defendant concedes that the COJ's lack of enforcement activity applied equally across all groups of prospective jurors throughout Queens County and did not target any one class of individuals by race, sex, or a combination of both.
Accordingly, for the reasons stated herein, defendant's motion to discharge the second [*5]additional panel of prospective jurors returned to the Court for the trial of this action on grounds of a violation of his 6th and 14th Amendment Constitutional rights is denied in its entirety.
Dated: September 25, 2023
Kew Gardens, New York
MICHELLE A. JOHNSON, J.S.C. Footnotes
Footnote 1:Defendant filed a written motion challenging the second prospective jury panel, dated August 9, 2023, Michael Horn, Esq. affirm. The People filed an Affirmation in Opposition, dated August 10, 2023, Assistant District Attorneys Alexia Campoverde and Roni Piplani, affirm. Additionally, the Court heard oral arguments and rendered an oral decision on the record on August 10, 2023.
Footnote 2:Defendant relies on 2020 Census Figure report that white people account for 46.5% of Queens County residents (Trial Transcript, pgs 256 — 257).
Footnote 3:Notably, defendant's challenge to the first venire returned to the court is time barred and waived since jury selection commenced and petit jurors were already selected from that panel.
Footnote 4:The Commissioner of Jurors must collect demographic data for jurors who present for jury service describing race, ethnicity, age, and sex; and must submit an annual report to . . . the Chief Judge of the Court of Appeals (Jud. Law § 528).
Footnote 5:The source lists are comprised of the names and addresses contained on lists from five New York State agencies provided annually to the Unified Court System including the NYS Department of Taxation and Finance; NYS Department of Labor; NYS Office of Temporary and Disability Assistance; NYS Department of Motor Vehicles; and the NYS Board of Elections (2022 Annual Report Pursuant to Jud. Law § 528)
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
