People v. Owens

Appeal by the defendant from a judgment of the Supreme

ORDERED that the judgment is reversed, on the facts and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant’s challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review (see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 , 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 , 410 [2004]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Furthermore, there is no merit to the defendant’s contention that he was deprived of the effective assistance of counsel due to his attorney’s failure to call an expert witness to testify concerning the reliability of eyewitness identification (see People v Abney, 13 NY3d 251 [2009]; People v Stultz, 2 NY3d 277 , 287 [2004]).

Nevertheless, reversal and a new trial are required based upon the Supreme Court’s improvident exercise of discretion in discharging a sworn juror. During voir dire, a juror who had already been sworn expressed concerns that she might know someone who knew the defendant. The court, in the presence of the prosecutor, the defendant, and defense counsel, briefly questioned the juror. According to statements made on the record, the juror was very emotional while relating that she had a discussion with a coworker, who she saw every day, about kids doing “stupid things,” and when she asked the coworker about a case involving his cousin’s nephew, she found out that the nephew in question was the defendant. With the consent of all counsel involved, the court then spoke alone to the juror in camera, where she apparently continued to be very emotional and said, “I don’t know if I can be fair.” When pressed further, she stated only that she questioned whether she could be fair given the fact that a person she sees “every single day” actually knows the defendant. Without any further questioning, the court sua sponte discharged the juror.

Defense counsel immediately objected to the Supreme Court’s unilateral action in discharging the sworn juror without providing the parties with an opportunity to be heard. Under the circumstances presented, we agree that the court’s decision constitutes reversible error.

At the outset, with respect to counsel’s right to be present during the questioning of the sworn juror (see People v Harris, 99 NY2d 202 , 212 [2002]; People v Darby, 75 NY2d 449 , 453 [1990]; People v Mullen, 44 NY2d 1 , 5-6 [1978]), the People correctly contend that such right was waived when counsel expressly consented to allow the Supreme Court to conduct the in camera inquiry alone with the juror (see People v Pennisi, 217 AD2d 562 , 563 [1995]; People v Bailey, 146 AD2d 788 , 789 [1989]). That waiver, however, cannot reasonably be understood to extend to the court’s subsequent, unilateral action in discharging the juror during the in camera interview.

As a matter of procedure, the court, at a minimum, should have informed all parties of the substance of the in camera interview and provided each side with an opportunity to be heard before making its determination to discharge the sworn juror (see People v Rentz, 67 NY2d 829 [1986]; People v Wilson, 106 AD2d 146 , 149 [1985]; cf. CPL 270.35 [2] [b]). Contrary to the defendant’s contention, however, this procedural error, standing alone, was not inherently prejudicial (see People v Garay, 25 NY3d 62 [2015]). Nevertheless, affording all sides an opportunity to be heard in this case might well have allowed counsel to oppose the court’s proposed disposition before it became a fait accompli. Further questioning of the juror might have revealed the underlying reasons for her uncertainty, thereby assisting the court in making an informed decision as to whether discharge of the juror was warranted.

Based on the Supreme Court’s very limited questioning of the subject juror, we find that the court improvidently exercised its discretion in discharging her. Assuming, as both parties contend, that the court’s authority to discharge the sworn juror must be considered under CPL 270.35 (compare People v

Dillon, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.