| Matter of State of New York v Muench |
| 2011 NY Slip Op 04864 [85 AD3d 1581] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Karl Muench, anInmate in the Custody of New York State Department of Correctional Services,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered May 8, 2008 in a proceeding pursuant to Mental Hygiene Law article 10. The appeal washeld by this Court by order entered December 30, 2009, decision was reserved and the matterwas remitted to Supreme Court, Oneida County, for further proceedings (68 AD3d 1677 [2009]).The proceedings were held and completed.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and a new trial is granted.
Memorandum: Respondent previously appealed from an order pursuant to Mental HygieneLaw article 10 committing him to a secure treatment facility designated by the Commissioner ofMental Health based upon a jury finding that he is a detained sex offender with a mentalabnormality that, inter alia, predisposes him to commit further sex offenses. We concluded thatthe record was insufficient for us "to determine whether Supreme Court erred in relinquish[ing]control over the proceedings by permitting" the discharge of prospective jurors outside thepresence of the trial judge (Matter of State of New York v Muench, 68 AD3d 1677, 1678[2009]). We therefore held the case, reserved decision and remitted the matter to Supreme Courtfor a reconstruction hearing. Upon remittal, the parties stipulated to an order concluding that 22prospective jurors were excused upon the authority of a commissioner of jurors withoutknowledge or input from the trial court, prior to the commencement of jury selection in court.
Although this Mental Hygiene Law article 10 proceeding is civil in nature and primarilygoverned by CPLR article 41 (see Mental Hygiene Law § 10.07 [b]), the CriminalProcedure Law governs challenges to prospective jurors in such proceedings (see id.;CPL 270.20, 270.25 [1]). The relevant section of the Criminal Procedure Law provides that thecourt must determine all issues of fact and, "[i]f [a] challenge [to a prospective juror] is allowed,the court must exclude the person challenged from service" (CPL 270.20 [2]). Further,respondent's challenge with respect to the discharge of certain prospective jurors implicates hisfundamental right to a jury trial (seeMatter of State of [*2]New York v Kalchthaler, 82 AD3d1672 [2011]). We note that "[t]he presence of and supervision by a [j]udge constitutes anintegral component of the right to a jury trial . . . [Inasmuch as] the selection of thejury is part of the . . . trial, a [respondent] has a fundamental right to have a [j]udgepreside over and supervise the voir dire proceedings while prospective jurors are beingquestioned regarding their qualifications. A [j]udge who relinquishes control over theproceedings or delegates the duty to supervise deprives a [respondent] of the right to a trial byjury, requiring reversal" (People v Toliver, 89 NY2d 843, 843-844 [1996]; see People v Bosa, 60 AD3d 571,572 [2009], lv denied 12 NY3d 923 [2009]). Here, based on the procedures employed bythe Fifth Judicial District Coordinating Commissioner of Jurors, 22 prospective jurors wereexcluded by that Commissioner rather than by the court. Petitioner therefore correctly concedesthat respondent's "fundamental right to have a [j]udge preside over and supervise the voir direproceedings while prospective jurors are being questioned regarding their qualifications" wasviolated (Toliver, 89 NY2d at 844). We therefore reverse the order and grant a new trial.
Respondent failed to preserve for our review his further contentions concerning theconstitutionality of Mental Hygiene Law article 10 (see generally People v Baumann & Sons Buses, Inc., 6 NY3d 404,408 [2006], rearg denied 7 NY3d 742 [2006]; People v Stuart, 100 NY2d 412,425-426 n 11 [2003]; People v Davidson, 98 NY2d 738, 739-740 [2002]), the commentsmade by the Assistant Attorney General during his opening statement (see People v Freeman, 46 AD3d1375, 1376 [2007], lv denied 10 NY3d 840 [2008]), and the use of hearsaytestimony (see People v Qualls, 55 NY2d 733, 734 [1981]; People v Bertone, 16 AD3d 710,712 [2005], lv denied 5 NY3d 759 [2005]). We decline to exercise our power to reviewthose contentions in the interest of justice (see generally Matter of State of New York v Campany, 77 AD3d92, 101 [2010], lv denied 15 NY3d 713 [2010]). Present—Smith, J.P., Fahey,Carni and Martoche, JJ.