People v. Ortiz, 98 N.Y. Int. 0136 (November 18, 1998).

CRIMINAL PROCEDURE - JURY TRIAL - SUBSTITUTION OF JURORS - WRITTEN CONSENT

ISSUE & DISPOSITION

Issue

Whether the substitution of a sworn juror, during trial but prior to the commencement of jury deliberations, with only the oral consent of the defendant is equivalent to an oral waiver of the right to trial by jury and therefore invalid.

Disposition

No. The plain language of CPL § 270.35 requires written consent to substitutions only after deliberations have begun. Prior to the commencement of deliberations, there is no material difference between regular and alternate jurors.

SUMMARY

During the pre-deliberation stage of a jury trial the jurors were instructed to appear in court at an appointed time. One of the jurors did not show up or inform the court of her absence. After several attempts to contact the juror by phone, defense counsel agreed to the substitution of an alternate juror if the regular juror did not appear by lunch break. The court clerk ultimately reached the juror by telephone later that afternoon; in explaining her absence due to a back problem, the juror became verbally abusive with the court clerk when asked why she didn't contact the court directly. The trial judge then asked both parties if they would agree to the substitution of an alternate juror. Both counsel agreed, and when Defendant was asked if he personally approved, he replied affirmatively.

The Court of Appeals rejected both Defendant's contentions that the substitution of a juror at any time waived his right to trial by jury, and that because substitution requires written agreement, his consent to the substitution was invalid since it was offered verbally and not in written form.

The Court of Appeals affirmed the requirement for written consent once jury deliberations have begun, but rejected the idea that written consent was needed in the pre-deliberation stage. CPL § 270.35 plainly states that written consent to substitutions is only required once jury deliberations have commenced. Defendant's voluntary, oral consent to the substitution of jurors was appropriate under the statute; Defendant's convictions of criminal sale and criminal possession of a controlled substance in the third degree were affirmed.

Prepared by the liibulletin-ny Editorial Board.