People v. Gajadhar

• Decision Date: 18 December 2007
• Docket Number: 166.
• Citation: 9 N.Y.3d 438,850 N.Y.S.2d 377,880 N.E.2d 863
• Parties: The PEOPLE of the State of New York, Respondent, v. Winston GAJADHAR, Appellant.
• Court: New York Court of Appeals Court of Appeals

880 N.E.2d 863

9 N.Y.3d 438

850 N.Y.S.2d 377

The PEOPLE of the State of New York, Respondent, v. Winston GAJADHAR, Appellant.

166.

Court of Appeals of New York.

December 18, 2007.

Paul Wiener, New York City, and Steven Banks, for appellant.

Robert M. Morgenthau, District Attorney, New York City (Hilary Hassler and Mark Dwyer of counsel), for respondent.

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OPINION OF THE COURT

GRAFFEO, J.

After jury deliberations commenced in this case, one of the jurors became ill and was hospitalized. Opposing a mistrial, defendant

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asked that the deliberations continue with the remaining 11 jurors. The court granted defendant's request and defendant executed a written waiver of his right to a jury of 12 citizens in open court. We must decide whether article I, section 2 of the state constitution permits a defendant to consent to a deliberating jury of less than 12 individuals. We hold that the waiver in these circumstances was valid.

I

Defendant Winston Gajadhar and his business associate, Tony Norng, operated an automobile repair business in. Brooklyn. When the shop closed in 1994, the men believed that they were owed $1,500 from Sammi Fiki for work performed on a taxicab. Norng and defendant decided that defendant would attempt to collect the monies due from Fiki.

When defendant went to Fiki's office to discuss the matter, Fiki stated that he would only speak to Norng. Defendant later returned to Fiki's premises with another man (not Norng) and found that Fiki had been joined by his brother, Mosad, and a man named Hisham. After. Fiki denied owing the money, defendant told his companion to "take care of them." The man locked the office door and produced a handgun. A scuffle ensued and, during the melee, Mosad, Hisham and Fiki were shot. After defendant and his accomplice fled, emergency workers responded and transported the victims to a hospital. Fiki and Hisham survived, but Mosad did not.

The police came to suspect that defendant was involved in the crime but believed that he had escaped to his native country of Trinidad. Defendant eventually returned to the United States, securing a job at another automobile repair shop. At some point he made incriminating statements to one of his coworkers who, unbeknownst to defendant, was cooperating with the Federal Bureau of Investigation (FBI) regarding an unrelated matter. The coworker shared defendant's statement with an FBI agent.

In 1999, a team of NYPD officers and FBI agents went to defendant's workplace but defendant became aware that the authorities were looking for him and he managed to elude capture again. He returned to Trinidad but was not permitted to enter the country because he produced a fake passport. Defendant was detained by authorities until United States marshals took him into custody and brought him back to New York.

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Defendant was tried before a 12-member jury along with several alternate jurors. At the end of the case, defense counsel informed the trial court that, in the event a juror became unavailable after deliberations began, defendant would not consent to the substitution of an alternate juror. Because substitution without a defendant's consent is prohibited by CPL 270.35(1), the court dismissed the alternate jurors before deliberations began.

On the third day of deliberations, a juror became ill and had to be hospitalized for approximately one week. The court and the parties were aware that it had been difficult to secure the attendance of all the witnesses, some of whom had to travel from other countries, and that a retrial would be burdensome for all involved. Defense counsel told the court that defendant wanted deliberations to continue with the remaining 11 jurors. The People raised a concern that Cancemi v. People, 18 N.Y. 128 (1858) prohibited a criminal defendant from consenting to a jury of less than 12.

Supreme Court granted defendant's request, noting that, after Cancemi was decided, article I, section 2 of the state constitution was amended to allow a defendant to waive the right to a 12-person jury under proper circumstances, provided that the waiver is made in writing and in open court. Defendant executed the required waiver and deliberations resumed. Defendant was eventually acquitted of intentional murder in the second degree, two counts of assault in the first degree and two counts of attempted second-degree murder, but he was convicted of attempted robbery in the first degree and felony murder in the second degree. Supreme Court sentenced defendant to an aggregate term of 20 years to life in prison.

On appeal, defendant adopted a position contrary to that presented during trial—he claimed that the state constitution does not allow a defendant to consent to a jury of less than 12 members in any situation. The Appellate Division rejected defendant's contention and upheld the convictions. A Judge of this Court granted leave and we now affirm.

II

The number 12 has long been associated with trial by jury but no one knows why or when the common law settled on that figure (see e.g. People v. Cosmo, 205 N.Y. 91, 96, 98 N.E. 408 [1912] ["(w)hen or how that number acquired its historic sacredness no one can tell, for the origin of the institution itself has been lost in the

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darkness of antiquity"]). Some legal commentators speculate that the number has religious significance (see e.g. Edward Coke, Institutes of the Laws of England, at 155a [1st Am. ed. 18121 ).¹ It has also been said that a jury of 12 evolved from certain ancient practices, such as convening 12 individuals with knowledge of a disputed matter to determine the truth or requiring a person to defend an action by swearing an oath of innocence attested to by 11 other individuals (see e.g. Proffatt, A Treatise on Trial by Jury § 12, at 16; id. § 28, at 41-42; Wells, The Origin of the Petty Jury, 27 L. Q. Rev. 347, 359 [1911]; Constitutions of Clarendon § 9 [1164]). Regardless of origin, the number 12 was eventually regarded with "superstitious reverence" (Scott, Fundamentals of Procedure in Actions at Law, at 76 [1922]) and "sometime in the 14th century the size of the jury at common law came to be fixed generally at 12" (Williams v. Florida, 399 U.S. 78, 89, 90 S.Ct. 1893, 26 L.Ed.2d 446 [1970] ).

The common-law tradition of a 12-person jury was exported to America in the colonial era and gained explicit recognition in the original Charter of Liberties and Privileges enacted by the first Legislature in 1683 (see Charter of Liberties and Privileges § 17 [1683], reprinted in 1 Lincoln, Constitutional History of New York, at 101-102). The right was also recognized in the first constitution after New York became a state (see 1777 N.Y. Const. art. XLI). Although the constitution of 1777 did not specifically refer to the number 12, it provided that the right to a jury trial as it existed in New, York before the adoption of the constitution was to be continued (see id.).

The parameters of the right to a jury trial were later modified by successive state constitutional amendments (see e.g. 1821 N.Y..Const., art. VII, § 2; 1846 N.Y. Const., art. I, § 2; 1938 N.Y. Const., art. I, § 2), The 1821 amendment altered the original language slightly without affecting the meaning of the provision. But, in 1846, an amendment added a new principle to the state constitution—the ability of parties in a civil action to waive the right to a jury trial. This was a significant modification that allowed

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parties not only to consent to trial by a judge serving as the factfinder, but also permitted litigants to "agree to a jury of six, or to other variations in traditional procedure" (Problems Relating to Bill of Rights and General Welfare, 1938 Rep. of N.Y. Constitutional Convention Comm., vol. 6, at 12 [hereinafter Poletti Report]; see e.g. Sharrow v. Dick Corp., 86 N.Y.2d 54, 59, 629 N.Y.S.2d 980, 653 N.E.2d 1150 [1995] ). Of course, the fact that the constitution was amended to clearly provide for the waiver of a 12-person jury in civil cases meant that the opposite was also true— the right could not be waived in criminal cases..

Against this backdrop, in 1858 this Court decided Cancemi v. People, 18 N.Y. 128 (1858). In `that case, 12 jurors had been empaneled for the defendant's murder trial. During the proceedings, one juror had to be discharged, albeit at the express request of the defendant. As a result, the guilty verdict was rendered by 11 jurors.

This Court concluded that a verdict reached by an 11-member jury violated article I, section 2 of the state constitution, which at that time included no language suggesting that a criminal defendant could waive a jury trial as the 1846 amendment had authorized for civil cases. According to the Court, the common-law jury of 12 was a constitutional "mode of proceeding" in criminal cases that could not be altered by the consent of the parties and, hence, the defendant's approval of the juror's discharge "was a nullity" (id. at 137, 138). The Court reasoned that "[i]f a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the court alone" (id. at 138).

Following Cancemi, questions were raised about the efficacy of a ban on jury trial waivers in criminal cases. This culminated in a 1935 proposal by the Judicial Council seeking legislative adoption of a concurrent resolution in favor of a constitutional amendment to include noncapital criminal cases within the scope of the waiver language that had been added to article I, section 2 in 1846 for civil trials (see 2d Rep. of N.Y. Jud. Council, at 97, reprinted in 1936 N.Y. Legis. Doc. No. 48[C], at 3). The Council recognized that the proposed language was broad enough to "legalize trial by jury of less than twelve...