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People v. Page, 88 N.Y.2d 1 (Apr. 2, 1996).





Defendant faced charges of grand larceny and unauthorized use of a vehicle. During jury deliberations, the foreperson became ill and asked to be excused. After an extensive inquiry, the court determined that the juror was unable to continue; therefore, the court excused him from service.

Defendant consented to replace the ill juror with an alternate. The court then personally asked Defendant whether he consented to substitute the alternate juror, and whether he had sufficient opportunity to discuss the decision with his attorney. While Defendant answered the court in the affirmative, he never agreed in writing. The jury convicted Defendant.

Defendent moved to set aside the verdict because a substitution of the alternate juror without Defendant's written consent violated his statutory and constitutional rights. The trial court denied Defendant's motion. See People v. Page, 583 N.Y.S.2d 141 (N.Y. Sup. Ct. 1992). The Appellate Division affirmed the trial court. See People v. Page, 619 N.Y.S.2d 567 (N.Y. App. Div. 1994).



Whether, pursuant to N.Y. Crim. Pro. Law § 270.35, the court must obtain, regardless of the defendant's oral consent, written consent from the defendant for the substitution of a juror during deliberations.


Yes. Order of the Appellate Division reversed, with order for a new trial.


By the Court

By the Dissent


Cited by the Court

Related Sources


1. Court's Reasoning

A. Prior state of the law in New York

Originally, the N.Y. Constitution art. I, § 2 made no provision for waiving a jury trial. In 1938, the Constitution was amended to allow defendants to waive trial by jury only by a signed, written waiver.

In addressing juror substitutions, § 358-a of the Code of Criminal Procedure permitted the court to substitute alternate jurors at any time prior to the commencement of deliberations. The statute also required that any remaining alternate jurors be dismissed once the case was submitted to the jury. In 1952, the legislature amended § 358-a to avoid mistrials during lengthy proceedings. The statute authorizes the retention of alternate jurors and juror substitutions during deliberations. The statute did not require any form of consent by either party prior to such substitution.

In People v. Ryan, 19 N.Y.2d 100 (N.Y. 1966), the Court of Appeals held that the substitution of jurors once deliberations commence, pursuant to § 358-a, violates the constitutional guarantee to a trial with twelve jurors. The court, however, reasoned that such a substitution would be constitutional if the defendant consented in writing because the N.Y. Constitution, art. I, § 2 allows the defendant to waive the right to a jury trial as well as the right to a jury of twelve. In 1970, the Legislature incorporated the Ryan holding into N.Y. Crim. Proc. Law § 270.35 to parallel the N.Y. Constitution jury waiver provision.

B. Majority

The Court relied on the . N.Y. Constitution art. I, § 2 provision for waiver of trial by jury, and N.Y. Crim. Proc. Law § 270.35 for jury substitution. The court determined that a literal reading of these provisions requires written consent. The court rejects the argument that the written requirement is a mere technicality. The court holds that since N.Y. Crim. Proc. Law § 270.35 mirrors the N.Y. Constitution. art. I, § 2, informed oral consent does not satisfy the evidentiary protections afforded by a written waiver. See People v. Page(citing the N.Y. State Const. Convention, 1938, Rev. Record, Vol. II, at 1282,)("[I]t is a human habit to think twice before one signs a paper.").

2. Dissent

The dissent states that the N.Y. State Constitutional Convention, 1938, Rev. Record, Vol. II. for art. I, § 2 indicates that the debaters wanted defendants to understand their decision to substitute a juror. The dissent argues that the constitution requires that Defendant knowingly waive a right to a jury trial. The dissent therefore believes the record indicates an extensive discussion with defendant in the presence of his counsel, and Defendant knowingly, voluntarily and intelligently agreed to the juror replacement. The dissent cites two cases, People v. Sirno, 76 N.Y. 2d 967 (N.Y. 1990) and People v. Davis, 55 N.Y.2d 731 (N.Y. 1981), for the proposition that the court has allowed implicit waivers of constitutionally protected Miranda rights.

3. Survey of the Law in Other Jurisdictions

The following is a survey of several state statutes which address juror discharge once jury deliberation has begun. None of the following states have provisions requiring defendant's written or oral approval of a juror's discharge and replacement once jury deliberations have begun.

The New Jersey statute does not address the issue of replacement of a juror who is unable to complete his or her duties as a juror due to illness. An annotation to the statute merely states that the court may excuse a juror who becomes ill. N.J. Stat. Ann. §2a:74-2 (West 1994).

Likewise, the Alabama statute states that a juror may be discharged if after the jury retires to deliberate, one of them becomes ill and is unable to perform as a juror. Ala. Code § 12-16-231 (1995). Moreover, the Alabama statute allows the parties to "unanimously consent in open court, with legal effectiveness, to the discharge of any member of the jury," and to continuation of the trial and rendition of a verdict by the remaining jurors. Ala. Code § 12-16-232 (1995). The parties may also consent prior to the commencment of the trial to allow one less juror, in the event of an incapacitation.Id..

The Minnesota statute states that if a juror becomes unable to perform after the jury has retired to consider its verdict, a mistrial shall be declared unless the parties agree to have the jury consist of a lesser number of jurors than that selected for trial. Minn. Stat. Ann., R. Crim. Proc. 26.02.

The Massachusetts statute states that if a juror is unable to perform his or her duties, the court may order the juror's discharge. The court will then direct the clerk to place the names of all the remaining alternate jurors in a box and draw the name of an alternate, to take the place of the discharged juror. After this selection process, the jury renews its deliberations with the alternate juror. Mass. Ann. Laws ch. 234, § 26B. (Law. Co-op. 1986 & Supp.1996).

Federal Rules of Criminal Procedure 23(a) states that cases required to be tried by a jury "shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."

The Federal Circuit Courts have allowed for a broad interpretation of the waiver, required in Federal Rules of Criminal Procedure 23(a). In United States v. Saadya, 750 F.2d 1419 (9th Cir. 1985), the court held that there is an exception to written waiver of a jury trial when the record reflects that defendant personally gave express, knowing, and intelligent consent in open court. Accordingly, it held that a defendant's conviction should be reversed when the record contained no written or oral waiver of a jury trial by defendant and no approval of waiver by a judge. In United States v. Fisher, 912 F.2d 728 (4th Cir. 1990), the court held that a defendant's oral waiver of a twelve-member jury was valid when the waiver was given in the judge's chambers, the waiver was made knowingly and intelligently, and defendant, who was addressed individually by the court, failed to object when the announcement of waiver was made in open court. In United States v. Essex, 734 F.2d 832 (D.C. Cir. 1984), the court held that a prosecutor's failure to obtain a written waiver of a twelve-member jury was harmless error when defendant made an oral waiver in open court with the advice of counsel. In United States v. Prichard, 875 F.2d 789 (10th Cir. 1989) (per curiam), the court held that absent prejudice to the defendant, the failure to reduce a waiver to writing as required by rule 23(a) does not warrant relief.

4. Unanswered Questions

The majority does not satisfy the dissent's question. If the evidentiary concerns of the written requirement are satisfied by informed oral consent, then why not waive the written requirement? The majority seems to base the decision on the literal reading of the state constitution and N.Y. Crim. Proc. Law § 270.35 without addressing whether the underlying policy was or was not satisfied.

The court minimizes the distinction between People v. Ryan, 19 N.Y.2d 100 (N.Y. 1966) and People v. Page. The Ryan court reversed and held that a statement by the lawyer did not comport with the constitutional procedure for obtaining a waiver and was invalid. The Ryan court acknowledged that a defendant could consent to a juror substitution by a written instrument. While a lawyer's consent for a client, without the knowledge of the defendant, may not constitute a valid waiver, the dissent urges that some other procedure may satisfy the constitutional waiver requirement. Ryan left this possibility open in its close following of People v. Bruneman, 40 P.2d 891 (Cal. Ct. App. 1935). See Ryan, 19 N.Y.2d at 105-06.

5. Implications

With respect to the ethical position of the defense lawyer in this case, if the lawyer knew of this "loophole" and planned this particular maneuver to retain a second bite in case of conviction, the conduct may suggest some measure of duplicity or impropriety. Even taking into account zealous advocacy, the idea of purposely leading the court into taking an action that may be illegal, and in this case unconstitutional, seems to butt right up against the "appearance of impropriety" and "fraud on the court" standards of professional ethics. These issues need not implicate the defendant's rights but they may free the lawyer to continue questionable tactics.

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