People v. Porter

• Citation: 909 N.Y.S.2d 486,77 A.D.3d 771
• Parties: The PEOPLE, etc., respondent, v. Carlin PORTER, appellant.
• Decision Date: 12 October 2010
• Court: New York Supreme Court Appellate Division

909 N.Y.S.2d 486
77 A.D.3d 771

The PEOPLE, etc., respondent,
v.
Carlin PORTER, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 2010.

909 N.Y.S.2d 486

Martin Geduldig, Garden City, N.Y., for appellant, and appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Robert A. Schwartz, and Jason P. Weinstein of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

77 A.D.3d 771

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.), rendered January 11, 2008, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, a new trial is ordered

909 N.Y.S.2d 487

on the charges of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and the indictment is otherwise dismissed with leave to the People to re-present any appropriate charges to another grand jury ( see People v. Beslanovics, 57 N.Y.2d 726, 727, 454 N.Y.S.2d 976, 440 N.E.2d 1322).

During deliberations, and after the alternate jurors had been excused, one of the sworn jurors sent a note to the Supreme Court explaining that he had an upcoming court appearance before another judge within the same county which could possibly interfere with his jury service depending on when a verdict was reached. The Supreme Court informed the parties that, upon receiving this note, it searched the juror's name in a public database on the Office of Court Administration website and discovered that the juror had a pending charge for assault in the second degree. The Supreme Court noted that the juror did not disclose this information during voir dire despite being specifically asked if he, or any relative or close friend, had ever been accused of a crime.

The Supreme Court proceeded to conduct an inquiry of this juror in the presence of the attorneys and the defendant. During this inquiry, the juror explained that he did not respond affirmatively to the question posed by the Supreme Court with respect to whether he had ever been accused of a crime because

77 A.D.3d 772

the District Attorney's office had agreed to reduce the charge to a violation. Having received this explanation, the Supreme Court simply asked the juror whether he could render a fair and impartial verdict despite this pending matter, to which the juror responded affirmatively.

Thereafter, the defendant moved for a mistrial on the ground that the juror was grossly unqualified to serve because he was receiving a favorable plea agreement from the District Attorney's office. Without placing its reasoning on the record, the Supreme Court denied the defendant's motion. The defendant contends that the Supreme Court erred in denying his motion for a mistrial. We agree.

CPL 270.35(1) provides that "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict ... the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature ... the court must discharge such juror" (CPL 270.35 [1] ). "If no alternate juror is available, the court must declare a mistrial" ( id.). The "grossly unqualified" standard "is satisfied only when it becomes obvious that a particular juror possesses a state of mind which...