| People v Elias |
| 2011 NY Slip Op 09344 [90 AD3d 947] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlElias, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, andTerrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered July 19, 2010, convicting him of attempted assault in the first degree, criminalpossession of a controlled substance in the third degree, and criminal possession of a weapon inthe fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
After the second day of testimony at the defendant's trial, an alternate juror reported to acourt officer that other jurors had made comments indicating they were discussing the case andhad begun deliberating on the outcome. The trial court then conducted in camera interviews ofevery juror and alternate juror in the presence of the prosecutor, defense counsel, and thedefendant, resulting in the dismissal of Juror Three on consent. However, Juror Twelve andAlternate Juror One, who denied commenting on the proceedings or did not remember hearingothers discuss the case, and assured the court that they had not reached a conclusion as to thedefendant's guilt and would deliberate based on all the evidence, were retained over defenseobjection. The trial court retained these jurors despite the fact that other jurors indicated thatthese jurors had been in the presence of Juror Three when he commented about the case.
If a court finds that a juror is grossly unqualified to serve in a case, or has engaged inmisconduct of a substantial nature, the court must discharge such juror (see CPL 270.35;People v Buford, 69 NY2d 290, 299-300 [1987]). In making a determination of whether ajuror is grossly unqualified, the trial court must conduct a probing, tactful inquiry into thespecific circumstances, and must question each allegedly unqualified juror individually in camerain the presence of the attorneys and the defendant (see People v Gibian, 76 AD3d 583 [2010]; People v Arena, 70 AD3d 1044[2010]; People v Foddrell, 65 AD3d1375, 1377 [2009]; People vLittebrant, 55 AD3d 1151 [2008]; People v Dombroff, 44 AD3d 785, 787 [2007]; People v Stephens, 22 AD3d 691[2005]; People v Simon, 224 AD2d 458 [1996]; People v Mack, 224 AD2d 448,449 [1996]; People v Horney, 112 AD2d 841, 843 [1985]). Where this has occurred, theSupreme Court's determination will be accorded latitude and great deference, and should be setaside only where the error is manifest (see People v Littebrant, 55 AD3d 1151 [2008]).[*2]
Here, the record supports the Supreme Court'sdetermination to retain Juror Twelve and Alternate Juror One in light of their professed ability tokeep an open mind and to base their decisions on the evidence and the law as instructed by thecourt (see People v Foddrell, 65AD3d 1375 [2009]; People vDombroff, 44 AD3d 785 [2007]; People v Stephens, 22 AD3d 691 [2005]; People v Simon,224 AD2d 458 [1996]).
The sentence imposed was not excessive (see People v Farrar, 52 NY2d 302, 305[1981]; People v Suitte, 90 AD2d 80, 83-86 [1982]). Dillon, J.P., Eng, Belen and Austin,JJ., concur.