People v. Ventura

• Decision Date: 14 January 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. David VENTURA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 443
978 N.Y.S.2d 178
2014 N.Y. Slip Op. 00182

The PEOPLE of the State of New York, Respondent,
v.
David VENTURA, Defendant–Appellant.

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

Jan. 14, 2014.

[978 N.Y.S.2d 179]

Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.

FRIEDMAN, J.P., ANDRIAS, RICHTER, MANZANET–DANIELS, FEINMAN, JJ.

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered March 15, 2012, as amended March 20, 2012, convicting defendant, after a jury trial, of intimidating a witness in the second degree and assault in the third degree, and sentencing him to an aggregate term of 2 1/2 years, unanimously reversed, on the law, and the matter remanded for a new trial.

During a recess after defendant's summation, the court advised counsel that one of the jurors had spoken to someone in the clerk's office because there was something the juror wanted to discuss. The court sent a court officer to find out the nature of the juror's concern. The court officer returned and had an off the record conversation with the judge, who then advised counsel that the juror had been invited to a breakfast at which the N.Y. County District Attorney was a speaker. The court explained that the court officer had confirmed that the juror did not have a personal relationship with Mr. Vance and that the juror understood “she can't go because she's on this jury.” The court denied defense counsel's request to make an inquiry of the juror. In fact, the record fails to establish which juror had the conversation with the court officer.¹

On appeal, defendant admits that the court properly delegated to the court officer the task of finding out the nature of the juror's concern. However, defendant argues that the court officer went beyond this ministerial role and usurped a judicial function by inquiring into the nature of the juror's personal relationship with the District Attorney. We need not reach this issue because, as defendant correctly argues, the record here provides an independent ground for reversal.

In People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901 (1987), the Court of Appeals set forth the basic framework to be followed when the trial court is considering disqualifying a juror because of conduct that occurs during the trial. As the Court noted, the court should conduct an inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. Although the Court of Appeals acknowledged that “[a]n in camera inquiry may not be necessary in the unusual case involving an obviously trivial matter where the court, the attorneys, and defendant all agree that there is no possibility that the juror's impartiality could be affected and that there is no reason to question the juror,” here defense counsel wanted the juror questioned (id. at 299 n. 4, 514 N.Y.S.2d 191, 506 N.E.2d 901). We conclude that there should have been an inquiry, in which defense counsel could participate, because the disclosure indicated a possible issue related to that juror's continued ability to serve in an impartial manner

[978 N.Y.S.2d 180]

( see People v. Shaw, 43 A.D.3d 685, 841 N.Y.S.2d 304 [1st Dept.2007] ). Because the court did not itself conduct any inquiry, and relied only on the sparse information gathered by the court officer, many questions are unresolved. Thus, the trial court's decision that the juror was not grossly unqualified rests on speculation ( see People v. Dotson, 248 A.D.2d 1004, 670 N.Y.S.2d 147 [4th...