People v. Foster

• Decision Date: 12 March 1984
• Citation: 100 A.D.2d 200,473 N.Y.S.2d 978
• Parties: The PEOPLE, etc., Respondent, v. Jerry FOSTER, Fred Foster and Gregory Reed, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 978

473 N.Y.S.2d 978

100 A.D.2d 200

The PEOPLE, etc., Respondent, v. Jerry FOSTER, Fred Foster and Gregory Reed, Appellants.

Supreme Court, Appellate Division Second Department.

March 12, 1984.

Richards W. Hannah, New York City (Joseph A. Doran, New York City, of counsel), for appellant Fred Foster.

William E. Hellerstein, New York City (Darren O'Connor, New York City, of counsel), for appellant Gregory Reed.

Stanley Shapiro, Brooklyn, for appellant Jerry Foster.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and Michael Gore, Brooklyn, of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, BROWN and NIEHOFF, JJ.

LAZER, Justice Presiding.

Was the erroneous denial of a challenge for cause preserved for appellate review when the defendant who made the challenge was unable to exercise a peremptory challenge because his codefendants refused to join the exercise with him? Resolution of that question and the impact of the resolution upon each of the three defendants are the primary issues on these appeals.

During jury selection at the outset of the defendants' trial for murder in the second degree and other crimes, defendant Jerry Foster challenged for cause a venireman who had served on a Federal Grand Jury during the prior two years. Despite the clear Judiciary Law provision disqualifying from jury service persons who have rendered jury service within the prior two years (Judiciary Law, § 511, subd. 5), the trial court denied the challenge. Continuing to press for exclusion of the prospective juror, Jerry Foster attempted to exercise a peremptory challenge but the effort was frustrated when his codefendants refused to expend a peremptory challenge on the individual in question. Since the exercise of peremptory challenges at multi-defendant trials is controlled by a majority vote of the defendants (CPL 270.25, subd. 3), the trial court refused to recognize Jerry Foster's peremptory challenge and denied his request for individual peremptory challenges. The juror was impanelled and the defendants subsequently were convicted. Three years later, codefendant Fred Foster moved pursuant to CPL 440.10 to vacate the judgment against him, alleging that the challenged juror's participation nullified the verdict. Contained in the moving papers was a letter from the United States District Court for the Eastern District of New York stating that during various periods between March, 1979 and September, 1980 the juror had served on a special Grand Jury; the defendants' trial took place in September, 1979. The trial court denied the motion, holding that the record was sufficient for the question to be determined on appeal from the judgment of conviction.

On those appeals the Foster brothers contend that the illegal composition of the jury voided the verdicts and Fred Foster argues that it was unnecessary for him to assert a separate challenge for cause because the ground for disqualification was brought to the trial court's attention by Jerry Foster. Although the third defendant, Gregory Reed, has never raised the disqualification issue, he joins with his codefendants in asserting a litany of other alleged errors. The District Attorney concedes that the challenged juror should have been excluded, but argues that in the absence of a peremptory challenge the issue has not been preserved for appellate review.

Challenge for cause is the appropriate method for objection to a prospective juror on the ground that "[h]e does not have the qualifications required by the judiciary law" (CPL 270.20, subd. 1, par. [a] ). It is apparent from CPL 270.20 that in referring to lack of "qualifications" as a basis for a challenge, the Legislature authorized the challenge of persons who either lacked "qualifications" under section 510 of the Judiciary Law or were "disqualified" under section 511 of the Judiciary Law. Thus, since a person is disqualified from jury service if he has "served on a grand or petit jury within the state, including in a federal court, within two years of the date of his next proposed service" (Judiciary Law, § 511, subd. 5), it was error to deny the instant challenge for cause. At common law, prior jury service was not a basis for disqualification, but the ground has been statutorily imposed in a number of States (Busch, Law and Tactics in Jury Trials, § 98; 50 C.J.S., Juries, § 150). Statutes dealing with prior recent jury service permit prospective jurors to obtain exemption on that ground or they provide that such service is a ground for challenge for cause (Jordan, Jury Selection, § 5.16). In this State, the current Judiciary Law subdivision providing for disqualification based on jury service within the preceding two years (Judiciary Law, § 511, subd. 5; L.1978, ch. 239) succeeded a provision authorizing prospective jurors to invoke exemption for that reason (see Judiciary Law, § 512, former subd. 8; L.1977, ch. 316). Earlier New York statutes provided that failure of a juror to invoke an exemption based on prior jury service did not invalidate the verdict (see Judiciary Law, former § 601, L.1942, ch. 799; former § 675, L.1954, ch. 305).

Disqualification based on prior jury service is intended to insure that juries reflect a larger cross section of the populace, to discourage professional jurors from serving (United States v. First, 8th Cir., 600 F.2d 170, 172, n. 3; Eighth Ann. Rep. of Judicial Council, 1942, p. 226), and to render jury service more attractive by minimizing the burden on those whose personal lives are disrupted by the obligations of jury service (State v. Fletcher, 341 So.2d 340 [La.]; Governor's Memorandum, 1954 McKinney's Session Laws of N.Y., p. 1385). Unlike challenges founded on claims of juror bias--where the trial court is required to make a factual determination (see, e.g., People v. Blyden, 55 N.Y.2d 73, 447 N.Y.S.2d 886, 432 N.E.2d 758)--a challenge properly founded upon a lack of statutory qualifications leaves the court with no discretion and mandates removal of the unqualified juror (see Greenfield v. People, 74 N.Y. 277; 8 Carmody Wait 2d, N.Y.Prac., § 55.12).

Although the Fosters now argue that the presence of the disqualified individual resulted in an unconstitutional trial by less than 12 jurors (see N.Y.Const., art. 6, § 18) and thus nullified the verdict, there has been no showing or allegation that the juror lacked fairness or the ability to perform his duties intelligently (see People v. Cosmo, 205 N.Y. 91, 100-101, 98 N.E. 408). Just as a juror's intelligence or impartiality is not affected by the inability to meet the statutory requirements of citizenship and residence (see, e.g., Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432; People ex rel. Ostwald v. Craver, 272 App.Div. 181, 70 N.Y.S.2d 513), the essential qualities necessary for fair jury service are not vitiated by prior jury service (see State v. Hayes, 136 W.Va. 199, 67 S.E.2d 9). A disqualification of the type at issue is essentially "technical" in nature (see People v. Cosmo, 205 N.Y. 91, 100, 98 N.E. 408, supra ), for it merely reflects the public policy view that excessive jury duty should not be imposed and a class of professional jurors should not be created. It is not of such a fundamental nature as to affect the substantial rights of the accused, for it goes neither to the fairness nor impartiality of jurors. A verdict rendered by a jury containing some persons who should have been excluded for technical reasons is not void for want of power to render it (Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119; Kohl v. Lehlback, supra; United States v. Rosenstein, 2nd Cir., 34 F.2d 630). Therefore, the instant verdicts are not jurisdictionally defective.

We turn, then, to whether the verdict convicting Jerry Foster may continue to stand. The answer depends on whether he waived his challenge for cause by failing to have the juror excluded by peremptory challenge. We know, of course, that with one exception irrelevant to this case, a challenge of a prospective juror for cause which is not made before the person is sworn as a trial juror is deemed to have been waived (CPL 270.15, subd. 4). The rationale for this statutory provision is that it would be intolerable to permit posttrial investigation of the technical qualifications of jurors which were ascertainable in advance of the trial (People v. Cosmo, 205 N.Y. 91, 100, 98 N.E. 408, supra ). Where a prospective juror lacks any of the technical qualifications which do not affect fairness or competence, timely objection is required to further finality and public convenience, for otherwise, it has been said, no judgment would ever be safe from attack (People v. Cosmo, supra, pp. 100-101, 98 N.E. 408). Deficiencies in juror qualifications that have been held to be waivable include the former property ownership qualification (People v. Cosmo, supra; People v. Jewett, 6 Wend 388), citizenship (People ex rel. Ostwald v. Craver, 272 App.Div. 181, 70 N.Y.S.2d 513, supra ), residency in the county of trial (Hazlitt v. Bedient, 10 Misc.2d 283, 174 N.Y.S.2d 760), and service by a person over the statutory age (People v. Thayer, 132 App.Div. 593, 116 N.Y.S. 821; People v. Morrissey, 1 Sheld 295). In other jurisdictions, the underage of a juror (State v. Rodgers, 347 So.2d 610 [Fla.], writ of habeas corpus den sub nom Rogers v. McMullen, 11th Cir., 673 F.2d 1185; State v. Barr, 20 S.W.2d 599 [Mo.App.] ), a record of prior convictions of a felony (Lollar v. State, 422 So.2d 809 [Ala.Cr.App.]; Ford v. United States, 5th Cir., 201 F.2d 300), service by a prescribed public officer (Roberson v. State, 456 P.2d 595 [Okl.Cr.App.] ) and even the current deficiency--prior jury service within the prescribed statutory period (State v. Hayes, 67 S.E.2d 9,supra )--have been deemed waivable. We have no doubt that New York's statutory disqualification for prior jury service is technical in nature and...