| People v McDuffie |
| 2012 NY Slip Op 03665 [95 AD3d 1036] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlbertMcDuffie, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered August 8, 2008, convicting him of murder in the second degree and criminal possessionof a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, anda new trial is ordered.
The defendant was charged with two counts of murder in the second degree and one count ofcriminal possession of a weapon in the second degree, and proceeded to a jury trial. After thefirst day of jury deliberations, juror No. 1, the foreperson, informed the court that she did notwant to continue serving on the jury. The court gave defense counsel an opportunity to conferwith the defendant in the back of the courtroom about whether he wanted to substitute analternate juror. During the discussion, the court called another case.
When the defendant's case was recalled, the court, without speaking to the defendant, signeda jury substitution waiver form that had apparently also been signed by the defendant. Thealternate juror was seated. The jury proceeded to deliberate and reached a verdict.
On appeal, the defendant challenges the validity of the jury substitution waiver. Although hischallenges are unpreserved for appellate review, we reach them in the interest of justice(see CPL 470.15 [6]; People vNicholson, 35 AD3d 886, 888 [2006]).
The New York State Constitution "includes the right to a jury of 12. Substitution of analternate juror following submission of the case to the jury violates this right and is thereforeimpermissible unless the defendant has waived a jury trial" (People v Page, 88 NY2d 1, 3[1996]). The State Constitution requires that a criminal defendant sign a jury waiver in opencourt, before and with the approval of a judge (see NY Const, art I, § 2). CPL270.35 provides that, in order to substitute a juror after deliberations have begun, a defendantmust consent in writing, and such writing must be signed by the defendant in open court in thepresence of the judge (see CPL 270.35 [1]). "[T]he safeguards afforded by CPL 270.35are identical to and coextensive with the constitutional requirements for valid waiver of a jurytrial" (People v Page, 88 NY2d at 10). "Such [*2]constitutional requirements are not lightly disregarded. To thecontrary, express provisions of our Constitution should be vigilantly enforced and the rights theyprotect zealously guarded" (id. at 9-10). Further, "a defendant's waiver of his right to betried without a jury must be 'knowing' and 'intelligent' " (People v Davidson, 136 AD2d66, 69 [1988], quoting People v Duchin, 12 NY2d 351, 353 [1963]).
Here, the Supreme Court discharged juror No. 1 upon her request and substituted analternate. Although the defendant and his counsel executed a written consent to the substitution,there is nothing in the record indicating that the written consent was signed in open court in thepresence of the court (see People vTeatom, 91 AD3d 1025 [2012]). Rather, the defendant signed a waiver during the timethe court was hearing another case. Moreover, there is nothing in the record indicating that thecourt questioned the defendant in connection with the waiver in order to ensure that his actionswere knowingly and understandingly undertaken or that the waiver itself was executed in opencourt (see People v Badden, 13AD3d 463 [2004]; People v Davidson, 136 AD2d at 68; cf. People vBrunson, 307 AD2d 323, 324 [2003]). Under these circumstances, it cannot be said that thedefendant's election to substitute the juror complied with the New York State Constitution orCPL 270.35, or was made "knowingly and understandingly, based on an intelligent, informedjudgment" (People v Nicholson, 35 AD3d at 889 [internal quotation marks omitted]).Accordingly, we order a new trial. Rivera, J.P., Leventhal, Roman and Cohen, JJ., concur.