People v. Page

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: KAYE; SMITH; SIMONS, TITONE, LEVINE and CIPARICK, JJ., concur with KAYE; SMITH, J., dissents and votes to affirm in a separate opinion in which BELLACOSA
• Citation: People v. Page, 643 N.Y.S.2d 1, 88 N.Y.2d 1, 665 N.E.2d 1041 (N.Y. 1996)
• Decision Date: 02 April 1996
• Parties: , 665 N.E.2d 1041 The PEOPLE of the State of New York, Respondent, v. Kenneth PAGE, Appellant.

Page 1

643 N.Y.S.2d 1

88 N.Y.2d 1, 665 N.E.2d 1041

The PEOPLE of the State of New York, Respondent, v. Kenneth PAGE, Appellant.

Court of Appeals of New York.

April 2, 1996.

[88 N.Y.2d 2] [665 N.E.2d 1042] Milner & Daniel, New York City (Michael M. Milner, of counsel), for appellant.

[88 N.Y.2d 3] Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Gliner and Robert M. Raciti, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

Under CPL 270.35, once the jury has commenced deliberations an alternate juror may not be substituted for a regular juror unless the defendant consents to the replacement. The statute, moreover, specifies that such consent "must be in writing" and "signed by the defendant in person in open court in the presence of the court." This case presents the question whether the defendant's oral consent to the substitution is valid where there is no indication that the defendant signed a writing in open court memorializing that consent.

We conclude that the defendant's consent must conform with the statutory mandate. The fundamental right to a jury trial guaranteed by the State Constitution includes the right to a jury of 12. Substitution of an alternate juror following submission of the case to the jury violates this right and is therefore impermissible unless the defendant has waived a jury trial (People v. Ryan, 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710). Our Constitution explicitly demands that such a waiver be in writing (N.Y. Const., art. I, § 2). Because the requirement of written consent in CPL 270.35 embodies the constitutional waiver provision, oral consent to the substitution is invalid and the conviction should be reversed.

Facts

Defendant was charged with third degree grand larceny and unauthorized use of a vehicle for stealing Erik Moore's car. Twelve regular jurors and two alternates were selected by the parties. One day during trial, a regular juror was unable to attend court. Without determining whether the juror's absence would extend beyond that day, the court simply replaced him with one of the alternates, over defense counsel's objection. Defendant raises no issue as to this substitution.

Upon submission of the case to the jury, defense counsel requested that the remaining alternate juror, Ms. McManus, not be released. The court thus retained the alternate, instructing her to refrain from discussing the case with anyone. After approximately four hours of deliberations, the jury foreperson became ill and asked to be excused. The court--this time following an extensive inquiry--determined that the ill juror was unable to continue and excused him.

Defense counsel informed the court that he had discussed the matter with defendant and, because of the substantial prior delays and defendant's incarceration during the entire period, his client consented to substituting the alternate juror. After counsel's acquiescence was placed on the record, the court asked defendant personally whether he consented to substituting the alternate and whether he had had sufficient opportunity to discuss this decision with his attorney. Defendant answered both questions in the affirmative. At no time, however, did the trial court obtain the defendant's consent to the replacement in writing.

The court then substituted alternate juror McManus for the excused juror, instructing the jury to begin deliberations anew. As reconstituted, the jury resumed deliberations for less than an hour before being sequestered for the evening. The next morning, the jury found defendant guilty of both charges.

Defendant subsequently moved to set aside the verdict pursuant to CPL 330.30(1), arguing in part that substitution of the alternate juror during deliberations without first obtaining the defendant's consent in writing failed to meet statutory and constitutional requirements. The trial court denied defendant's motion, finding that it would "flout the purposes of the waiver rule" to permit the defendant to seek replacement of the ill juror and then urge that his consent was insufficient (153 Misc.2d 870, 872, 583 N.Y.S.2d 141). The Appellate Division affirmed, opining that "[t]o do otherwise would exalt form over substance" (210 A.D.2d 41, 619 N.Y.S.2d 567).

Before this Court, the defendant continues to argue that failure to obtain written, signed consent to the substitution necessitates reversal of his convictions. The People counter that the statutory specification is a technicality that need not be followed so long as the record otherwise reflects knowing, intelligent and voluntary consent by defendant to the substitution. We cannot agree with the People that the directive to obtain consent "in writing" and "signed by the defendant in person in open court in the presence of the court"--requirements explicitly set forth both in CPL 270.35 and in our State Constitution--represent a technicality that can be disregarded.

Right to Trial By 12 Jurors

Article I, § 2 of the New York Constitution guarantees a criminal defendant the right to a trial by jury. This fundamental right "has been properly interpreted as guaranteeing the right to trial by jury as it had existed at common law" (People v. Ahmed, 66 N.Y.2d 307, 311, 496 N.Y.S.2d 984, 487 N.E.2d 894). A legal jury according to the common law consisted of 12 persons (People v. Cosmos, 205 N.Y. 91, 96, 98 N.E. 408; Cancemi v. People, 18 N.Y. 128, 135). This Court has thus long recognized that under our State Constitution a person accused of a crime is entitled to determination by a jury of 12 (see, People v. Ryan, 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710, supra; People v. Mitchell, 266 N.Y. 15, 193 N.E. 445; People v. Thorn, 156 N.Y. 286, 294, 50 N.E. 947; Stokes v. People, 53 N.Y. 164, 171-172).

Our Constitution originally made no provision for waiving a jury trial in criminal cases. The right to a trial by 12 jurors was considered such an essential component of the constitutional right to trial by jury that, like the latter guarantee, it was deemed absolute and could never be waived by either party--even where the defendant expressly requested and consented to a trial by fewer than 12 jurors (see, e.g., Cancemi v. People, 18 N.Y. at 138; see also, People ex rel. Battista v. Christian, 249 N.Y. 314, 319, 164 N.E. 111; People v. Cosmos, 205 N.Y. at 96, 98 N.E. 408). Members of the former Judicial Council even questioned whether the proposed constitutional amendment providing for waiver of jury trial by a criminal defendant would suffice to "legalize trial by jury of less than twelve men, as well as a complete waiver of the jury," deeming this an issue for subsequent judicial resolution (2d Ann Report of NY Jud Council, 1936 NY Legis Doc No. 48, at 100).

Waiver of Trial By Jury

In 1938, the Constitution was amended to provide that "[a] jury trial may be waived in the manner to be prescribed by law * * * by the defendant in all criminal cases, except those in which the crime charged may be punishable by death." The amendment was intentionally silent as to the appropriate procedure for executing such waiver. As noted by the Judicial Conference, implementation of the amendment was left to the Legislature rather than specified in the Constitution itself; "that is, the specific methods of waiver, whether it should be made in writing, * * * are to be determined by the Legislature and fixed by statute" in order to "afford greater flexibility in the choice of method than if it should form a part of the Constitution" (2d Ann Report of NY Jud Council, 1936 NY Legis Doc. No. 48, at 97 [emphasis added]; see also, People v. Carroll, 3 N.Y.2d 686, 691, 171 N.Y.S.2d 812, 148 N.E.2d 875).

Later that same year, however, the People of this State sought to remedy the absence of safeguards accompanying this waiver provision (see, 2 Revised Record of 1938 NY State Constitutional Convention, at 1281). We therefore again amended our Constitution, this time adopting the current requirement that waiver of a jury trial be "by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense." As was explained at the 1938 Constitutional Convention, proponents of the amendment believed "that there should be some restriction upon the right to waive, so as to assure the defendant an understanding of what he was doing, and it was proposed that the waiver must be made in writing and in court as a protection to the rights of the defendant" (id., at 1274).

Underscoring the importance of the writing and signature requirements, members of the Convention explained that "it is a human habit to think twice before one signs a paper." Thus, a defendant who "is asked to put his name to a paper which tells him in writing that he has waived one of the greatest rights that a citizen has, will hesitate to do it" (id., at 1282).

The history of the constitutional waiver provision thus establishes that the requirement that the defendant execute a signed, written waiver was considered critical to securing a knowing, intelligent and voluntary waiver of the right to trial by jury (see also, Galie, The New York State Constitution: A Reference Guide, at 37). With this in mind, we examine the development of CPL 270.35.

History of CPL 270.35

Section 358-a of the Code of Criminal Procedure--the statutory predecessor to CPL 270.35--originally permitted the court to substitute an alternate juror only prior to commencement of deliberations and required that the alternate jurors be dismissed once the case was submitted to the jury. ¹ In People v. Mitchell, 266 N.Y. 15, 193 N.E. 445, supra, this Court held that section 358-a did not violate the defendant's fundamental right to a jury of 12.

In Mitchell itself, the alternates were discharged when the 12 regular jurors retired for deliberation. The Court explained that the defendant's...