People v. Morales

• Decision Date: 31 May 1991
• Citation: 570 N.Y.S.2d 831,168 A.D.2d 85
• Parties: The PEOPLE, etc., Respondent, v. Hector MORALES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 831

570 N.Y.S.2d 831

168 A.D.2d 85

The PEOPLE, etc., Respondent, v. Hector MORALES, Appellant.

Supreme Court, Appellate Division Second Department.

May 31, 1991.

Joseph I. Stone, New York City, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Anthea H. Bruffee and Robyn G. Nir, of counsel), for respondent.

Before BROWN, J.P., and KUNZEMAN, EIBER and BALLETTA, JJ.

BALLETTA, Justice.

We are called upon in this case to determine whether the failure to administer the oath to the trial jury until the conclusion of the People's case requires a reversal of the defendant's conviction. We now answer that question in the negative and hold that in the absence of prejudice, a delay in swearing in the jury will not warrant reversal. Accordingly, we affirm the judgment of conviction.

On May 11, 1987, the defendant entered an apartment located on 15th Avenue in Brooklyn. A seven-year-old boy and a six-year-old girl were alone in the apartment. The defendant took the girl into the bathroom where he removed her dress, pantyhose and shoes. The young boy, hearing the girl's screams, ran out of the apartment and down the hall looking for her mother. When the mother and another neighbor returned to the apartment, the defendant fled. However, the police were immediately called, and the defendant was arrested only a few blocks away.

The defendant was charged with burglary in the second degree and endangering the welfare of a child. After a jury trial, the defendant was convicted of both offenses and sentenced to concurrent terms of 4 to 12 years' imprisonment and one year imprisonment, respectively.

During the course of the trial, at the conclusion of the People's case and just prior to the commencement of the defendant's case, the court advised both sides that the jury had never been sworn. The oath was administered at that time, and the jurors were asked to affirm that they would try the case fairly. When the defendant was asked if he had an objection, the defense counsel merely responded, "Just note an objection to the time, that's all". There was no request for a mistrial or for any further instruction.

I

The defendant contends on appeal that a mistrial should have been granted since the jury was not sworn until after the completion of the People's case. Any issue of law with respect to this contention is unpreserved for appellate review. The defense counsel's belated objection did not qualify as a request for a mistrial (see, CPL 470.05[2].

In any event, upon review of the contention in the exercise of our interest of justice jurisdiction, we find that the delay in swearing in the jury was harmless under the circumstances of this case.

CPL 270.15(2) states, in relevant part, that:

"The prospective jurors who are not excluded from service must retain their place in the jury box and must be immediately sworn as trial jurors. They must be sworn to try the action in a just and impartial manner, to the best of their judgment, and to render a verdict according to the law and the evidence" (CPL 270.15[2].

Similarly, CPL 270.05 states that:

"the first twelve members of the [jury] panel returned for the term who appear as their names are drawn and called, and who are not excluded as prescribed by this article, must be sworn and thereupon constitute the trial jury" (CPL 270.05[2].

Reference should also be made to CPL 260.30, which sets forth the general order of the stages of a jury trial, with the initial stage being when "[t]he jury [is] selected and sworn" (CPL 260.30[1]. However, despite the provisions of CPL 260.30, the statutory scheme setting forth the order of a trial is not written in stone, and there is a certain amount of flexibility inherent in the trial process. In an analogous situation, the Court of Appeals has had occasion to note, as follows:

"In this State the order of trial in criminal cases is fixed by statute (CPL 260.30, formerly Code Crim.Pro. § 388). The statutory framework however is not a rigid one and the common-law power of the trial court to alter the order of proof 'in its discretion and in furtherance of justice' remains at least up to the time the case is submitted to the jury" (People v. Olsen, 34 N.Y.2d 349, 353, 357 N.Y.S.2d 487, 313 N.E.2d 782, quoting from People v. Benham, 160 N.Y. 402, 437, 55 N.E. 11; see also, People v. Harami, 93 A.D.2d 867, 461 N.Y.S.2d 376).

Although there exist statutory provisions which speak in general terms of having the selected jurors sworn prior to the commencement of a trial, there are few cases which have addressed the issue now confronting the court. There are apparently only two cases involving a delay in the swearing in of a jury, People v. Jamerson, 99 A.D.2d 816, 472 N.Y.S.2d 148, relied upon by the defendant, and People v. Bestle, 22 Misc.2d 1088, 197 N.Y.S.2d 820, a Herkimer County case from 1960.

In People v. Jamerson, supra, this court held that the failure to swear several jurors until the day after they were selected to serve was harmless since no action was taken before they were sworn. We do not agree with the defendant's contention that Jamerson implies that if any action is taken prior to the jury being sworn, reversible error has occurred. There is nothing in the language of Jamerson which would support such an expansive rule. The court in Jamerson merely held that under those facts, reversal was unwarranted (the court reversed on other grounds). The issue in the present case was not before the court in Jamerson.

In People v. Bestle, supra, the trial had commenced and some evidence had been taken before it was discovered that the jury had not been sworn. The justice of the peace granted a defense motion to dismiss the case on that basis. On appeal, the County Court held that the failure to swear the jury was a fatal error but that a mistrial, rather than dismissal, was the appropriate remedy. However, since Bestle is not mandatory authority and predates this court's decision in Jamerson which suggests that a harmless error analysis may be applied, it must be viewed as being somewhat of an anomaly.

Rather, we believe that the line of cases from other state and Federal courts which hold that a delay in swearing a jury is merely a technical deviation and not per se reversible error represents a more equitable resolution of the problem (see, State of New Mexico v. Apodaca, 105 N.M. 650, 735 P.2d 1156; State of Maine v. Poulin, 507 A.2d 563 [Me.]; State of Louisiana v. Huntley, 438 So.2d 1188 [La]; State of Arizona v. Godfrey, 136 Ariz. 471, 666 P.2d 1080; Hollis v. People of Colorado, 630 P.2d 68 [Colo]; State of Missouri v. Frazier, 339 Mo. 966, 98 S.W.2d 707; Garner v. State of Alabama, 206 Ala. 56, 89 So. 69; see also, United States v. Hopkins, 458 F.2d 1353). Indeed, the Supreme Court of the State of Vermont has recently adopted the majority viewpoint that the delayed swearing of a jury was not per se reversible error ( see, State of Vermont v. Roberge, 582 A.2d 142 [Vt]. In Roberge, as in this case, the jury was not sworn until the conclusion of the State's case. Likewise, in the case of United States v. Hopkins, supra, the jurors were not sworn until after the prosecution had presented its case. The court held that since the jurors were sworn prior to deliberations and the defendant had failed to show any prejudice,...