People v. Matthew

• Citation: 228 A.D.2d 260,643 N.Y.S.2d 578
• Parties: The PEOPLE of the State of New York, Respondent, v. Damon MATTHEW, Defendant-Appellant.
• Decision Date: 13 June 1996
• Court: New York Supreme Court Appellate Division

Page 578

643 N.Y.S.2d 578

228 A.D.2d 260

The PEOPLE of the State of New York, Respondent, v. Damon MATTHEW, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 13, 1996.

Richard Nahas, for respondent.

Jan Hoth-Uzzo, for defendant-appellant.

Before MILONAS, J.P., and ELLERIN, RUBIN, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Appeal from judgment of the Supreme Court, New York County (Budd Goodman, J., on suppression motion; Herbert Altman, J., at trial and sentence), rendered May 11, 1994, convicting defendant, after jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 3 to 6 years, unanimously held in abeyance, and the matter remanded to Supreme Court for a hearing on defendant's motion to suppress evidence.

As the People concede, it was error to summarily deny defendant's suppression motion. Defendant, as a passenger in a taxi cab, has a right to contest the stop of the vehicle and therefore to challenge any evidence seized as the fruit of an unlawful stop (People v. Millan, 69 N.Y.2d 514, 520, 516 N.Y.S.2d 168, 508 N.E.2d 903). Since defendant alleges facts which, if accepted as true, are sufficient to establish that the taxi cab was stopped illegally, he is entitled to a hearing on the motion.

Defendant's contention that he was denied the right to trial by a jury of his choice because the court replaced a juror whose father-in-law had just died with an alternate juror is devoid of merit. The provision permitting replacement of a juror who "is unavailable for continued service" (CPL 270.35) "is intended to serve the orderly, fair and prompt progress of a trial" (People v Page, 72 N.Y.2d 69, 73, 531 N.Y.S.2d 83, 526 N.E.2d 783). It "invests a trial court with latitude to make a balanced determination affecting the administration of justice based on the facts required to be adduced" (id.) which, in the circumstances of this case, include "a reasonable attempt to ascertain where the absent juror is, why the juror is absent, and when the juror will be present" (id.; Preiser, Practice Commentaries, McKinney's Consol. Laws of N.Y., Book 11A, Criminal Procedure Law § 270.35, at 452-453).

Having learned that the juror would be absent for two days to attend the funeral and wake and ascertained that, due to scheduling constraints and upcoming religious holidays, the trial would be delayed for some six days, Supreme Court properly exercised its discretion to seat the alternate juror (People v. Sparrow, 220 A.D.2d 321, 633 N.Y.S.2d 11; People v. Mills, 214 A.D.2d 423, 625 N.Y.S.2d 37, lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 454, 658 N.E.2d 232). Defendant contends that "discharge may be an appropriate option only when the juror's incapacity for continued service is not 'readily ascertainable at the time the issue of discharge arises,' or when the circumstances of the juror's unavailability render a reasonable accommodation difficult to fashion" (quoting, People v. Rosa, 138 A.D.2d 753, 755, 526 N.Y.S.2d 567, lv. denied 72 N.Y.2d 866, 532 N.Y.S.2d 516, 528 N.E.2d 906). However, the authority upon which defendant relies predates the Court of Appeals' controlling decision in People v. Page (supra [July 7, 1988] and stands for the additional, distinct proposition that a brief period of unavailability resulting from a juror's religious observance does not constitute a disability resulting in incapacity or unavailability for continued service within the contemplation of CPL 270.35 (id.), as recognized by more recent cases (People v. Perez, 176 A.D.2d 592, 593, 575 N.Y.S.2d 36 [improper discharge of juror for observance of Ash Wednesday]; People v. Jackson, 149 A.D.2d 532, 533, 539 N.Y.S.2d 997 [failure to grant half-day delay to accommodate Sabbath observer].

The cases defendant cites do not support his theory that the court was required to accommodate the absent juror and delay the matter until it could be heard a week later. The bulk of the cases merely state the rule enunciated in People v. Page (supra, at 73, 531 N.Y.S.2d 83, 526 N.E.2d 783) that, before directing the substitution of an alternate juror, a court is required to conduct a reasonable inquiry regarding the circumstances of a juror's unavailability and state, on the record, the basis for the juror's replacement (e.g., People v. Pegeise, 195 A.D.2d 337, 600 N.Y.S.2d 26 [discharge of juror in the absence of defendant and defense counsel]; People v. Davis, 178 A.D.2d 424, 577 N.Y.S.2d 410 [court declined to inquire if juror would be available later that day or on next trial date]; People v. Watkins, 157 A.D.2d 301, 556 N.Y.S.2d 541 ["precipitous" discharge after "scant two hours"]; People v. Washington, 151 A.D.2d 384, 543 N.Y.S.2d 78 [dissenting memorandum] [failure to call juror regarding obligation that "may well have required only one-half day's absence" is not "a reasonably thorough inquiry"], reversed on dissenting memorandum 75 N.Y.2d 740, 551 N.Y.S.2d 198, 550 N.E.2d 451; People v. Polhill, 140 A.D.2d 462, 528 N.Y.S.2d 160 [improper to discharge absent juror after 15 minutes without inquiry as to juror's whereabouts], lv. denied 72 N.Y.2d 923, 532 N.Y.S.2d 857, 529 N.E.2d 187). While some support for defendant's contention that it is an abuse of discretion to direct substitution to avoid a very brief delay may be found in this Court's decision in People v. Brown, 175 A.D.2d 708, 573 N.Y.S.2d 278 [insufficient reason to refuse to delay trial "for what amounted to no more than two and a half hours"], lv. denied 78 N.Y.2d 1074, 577 N.Y.S.2d 237, 583 N.E.2d 949, the concurring memorandum in that case notes that "the trial court did not...