People v. Wynter — 95 N.Y.2d 504

Majority

p. 504

[742 NE2d 112, 719 NYS2d 637]

The People of the State of New York, Respondent, v Orville P. Wynter, Appellant.

Argued November 16, 2000;

decided December 19, 2000

POINTS OF COUNSEL

David Louis Cohen, Kew Gardens, for appellant.

I. The court’s disqualification of selected juror Tomson was reversible

p. 505

error. (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98 ; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205 ; Matter of Eaton, 305 NY 162 ; People v Laing, 79 NY2d 166 ; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662 ; Matter of Holtzman v Goldman, 71 NY2d 564 ; People v Douglass, 60 NY2d 194 ; People v Foster, 100 AD2d 200 ; People v Allen, 86 NY2d 101 .) II. The prosecutor’s flagrant and persistent disregard for both the rules of summation and the efforts of the Trial Judge to curb her excesses deprived appellant of a fair trial. (People v Sandy, 115 AD2d 27 ; People v Roopchand, 107 AD2d 35 , 65 NY2d 837 ; People v Crimmins, 36 NY2d 230 ; Mapp v Ohio, 367 US 643 ; People v Levan, 295 NY 26 ; People v Perez, 102 AD2d 797 ; People v DeJesus, 137 AD2d 761 ; People v Figueroa, 38 AD2d 595 ; People v La Fontaine, 39 AD2d 734 .)

Denis Dillon, District Attorney of Nassau County, Mineóla (Denise Pavlides and Peter A. Weinstein of counsel), for respondent.

I. The court properly removed a prospective juror who was disqualified by reason of prior service pursuant to Judiciary Law §§ 524 and 525. (People v Prior, 294 NY 405 ; Howard v Kentucky, 200 US 164 ; People v Johnson, 92 NY2d 976 ; Khela v Neiger, 85 NY2d 333 ; People v Mobil Oil Corp., 48 NY2d 192 ; Levine v Bornstein, 4 NY2d 241 ; Anglin v Anglin, 80 NY2d 553 ; Matter of Aaron J, 80 NY2d 402 ; People v Cwikla, 46 NY2d 434 ; People v Curtis, 89 NY2d 1003 .) II. The prosecutor’s conduct during summation did not deprive defendant of a fair trial. (Lutwak v United States, 344 US 604 ; Darden v Wainwright, 477 US 168 ; People v Hopkins, 58 NY2d 1079 ; People v Galloway, 54 NY2d 396 ; People v Roopchand, 107 AD2d 35 , 65 NY2d 837 ; People v Wright, 41 NY2d 172 ; People v Ashwal, 39 NY2d 105 ; People v Morgan, 66 NY2d 255 ; People v Calabria, 94 NY2d 519 ; People v Vargas, 86 NY2d 215 .) III. The evidence adduced at trial was legally sufficient to prove beyond a reasonable doubt the “physical injury” element of second degree robbery. (People v Ford, 66 NY2d 428 ; People v Malizia, 62 NY2d 755 ; People v Contes, 60 NY2d 620 ; Jackson v Virginia, 443 US 307 ; People v Henderson, 92 NY2d 677 ; Matter of Philip A., 49 NY2d 198 ; People v Greene, 70 NY2d 860 ; People v Guidice, 83 NY2d 630 ; People v Brown, 243 AD2d 749 .) IV. Defendant was not precluded from establishing that William Mullen’s truck was never examined for fingerprint evidence, and he was not improperly precluded from introducing into evidence photographs of his car. (People v Henry, 179 AD2d 1061 , 79 NY2d 1002 ; Henry v Speckard, 22 F3d 1209 , 513 US 1029 ; Delaware v Van Arsdall, 475 US 673 ; People v Chin, 67

p. 506

NY2d 22 ; People v Stephens, 84 NY2d 990 ; People v Samms, 95 NY2d 52 ; People v Robinson, 36 NY2d 224 ; People v Arroyo, 11 NY2d 947 ; People v Wilder, 93 NY2d 352 ; People v Scarola, 71 NY2d 769 .)

Michael Colodner, New York City, John Eiseman and John J. Sullivan for Chief Administrative Judge Jonathan Lippman, amicus curiae.

Section 524 of the Judiciary Law disqualifies from service for four subsequent years a person who has appeared for jury service without having actually been sworn and seated as a juror. (Matter of Klein [Hartnett], 78 NY2d 662 , cert denied sub nom. Matter of Klein v Hartnett, 504 US 912 ; People v Mobil Oil Corp., 48 NY2d 192 ; Matter of New York Pub. Interest Research Group v Town of Islip, 71 NY2d 292 ; Durante v Evans, 94 AD2d 141 , 62 NY2d 719 ; People v Polk, 84 AD2d 943 ; People v Foster, 100 AD2d 200 , 64 NY2d 1144 , 474 US 857 .)

OPINION OF THE COURT

The primary issue before this Court is whether a prospective juror was disqualified by reason of prior service when he appeared for jury service within the previous four years but never sat as a juror in a case.

Defendant Orville P. Wynter was charged with two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]). During jury voir dire, the court indicated that a prospective juror was ineligible for jury service because he had reported for Federal jury duty within the previous four years. Defendant challenged the court’s view, contending that the juror reported to Federal court for two days but was never sworn as a juror and therefore was not disqualified under Judiciary Law § 524. Relying upon the Judiciary Law and the Rules of the Chief Administrator of the Courts, the court dismissed the juror from the panel and rejected defendant’s purported waiver of the juror’s apparent ineligibility. Defendant’s motion for a mistrial was denied. Defendant was convicted of the offenses charged, and the conviction was affirmed by the Appellate Division. Leave to appeal was granted by a Judge of this Court.

Judiciary Law § 524 (a) provides in relevant part that:

“A person who has served on a grand or petit jury in any court of the unified court system or in a federal court shall not be competent to serve again

p. 507

as a trial or grand juror in any court of the unified court system for four years subsequent to the last day of such service.”

Rules of statutory construction require that section 524 be read in conjunction with section 525 in order to properly interpret the intent of the Legislature (see, Khela v Neiger, 85 NY2d 333 , 336-337; Matter of Klein [Hartnett], 78 NY2d 662 , 667). Judiciary Law § 525 (c) provides in pertinent part:

“For the purposes of this section, actual attendance shall include a juror’s actual physical attendance wherein the court convenes or service by means of a telephone standby system whereby a juror shall remain available to report for jury service upon notification by means of telephone or other electronic communication.”

Accordingly, when sections 524 and 525 are read together, it is evident that the Legislature did not intend to require the impaneling of a person as a trial or grand juror in order to be deemed ineligible for future juror service under the statute. Rather, section 524 is intended to include individuals who fulfilled their jury service obligations by responding to a summons for jury duty through either actual physical attendance or telephone standby service. Notably, this interpretation of juror service requiring disqualification is mirrored in New York Rules of Court [22 NYCRR] §§ 128.8^[1] and 128.9 (b),^[2] which were promulgated by the Chief Administrator of the Courts to implement the provisions of Judiciary Law §§ 524 and 525.

Defendant’s remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

1 Section 128.8 of the Rules, entitled “Duration of Service” states in pertinent part that “the duration of a juror’s service shall be computed by counting the first day on which the juror is required to appear and each consecutive day thereafter, excluding days in which the court is not in session, until the juror is released from service. The commissioner of jurors may release a trial juror from service at any time, except that a trial juror who has been sworn or selected to sit on a panel in a proceeding may be released before the proceeding is terminated only by a judge or justice” (22 NYCRR 128.8 [a]).

2 Section 128.9 of the Rules, entitled “Frequency of Service,” states in pertinent part that “[a] person who has served on a trial jury or grand jury in any court of record within the state, including service as set forth in section 128.8 of this Part or service in a federal court, is disqualified from further jury service, pursuant to section 524 of the Judiciary Law, for four years * * * For purposes of this subdivision, jury service shall include service in the court and telephone standby service” (22 NYCRR 128.9 [b]).

p. 508

Judges Levine, Ciparick, Wesley and Rosenblatt concur Chief Judge Kaye taking no part.

Order affirmed.

Cases cited

Raritan Development Corp. v. Silva 91 NY2d 98 N.Y. 1997-10-28 p. 505
In re the Adoption of Eaton 305 NY 162 N.Y. 1953-03-06 p. 505
People v. Laing 79 NY2d 166 N.Y. 1992-02-20 p. 505
Alonzo M. v. New York City Department of Probation 72 NY2d 662 N.Y. 1988-12-15 p. 505
Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 p. 505
People v. Douglass 60 NY2d 194 N.Y. 1983-11-01 p. 505
People v. Foster 100 AD2d 200 N.Y. App. Div. 1984-03-12 p. 505, p. 506
People v. Allen 86 NY2d 101 N.Y. 1995-07-06 p. 505
People v. Sandy 115 AD2d 27 N.Y. App. Div. 1986-03-06 p. 505
People v. Roopchand 107 AD2d 35 N.Y. App. Div. 1985-02-19 p. 505
People v. Crimmins 36 NY2d 230 N.Y. 1975-02-25 p. 505
Mapp v. Ohio 367 US 643 SCOTUS 1961-06-19 p. 505
People v. Levan 295 NY 26 N.Y. 1945-11-29 p. 505
People v. Perez 102 AD2d 797 N.Y. App. Div. 1984-06-28 p. 505
People v. DeJesus 137 AD2d 761 N.Y. App. Div. 1988-02-22 p. 505
People v. Prior 294 NY 405 N.Y. 1945-07-19 p. 505
Howard v. Kentucky 200 US 164 SCOTUS 1906-01-02 p. 505
People v. Johnson 92 NY2d 976 N.Y. 1998-11-24 p. 505
Khela v. Neiger 85 NY2d 333 N.Y. 1995-03-30 at 336-337 p. 505, p. 507
People v. Mobil Oil Corp. 48 NY2d 192 N.Y. 1979-10-23 p. 505, p. 506
Levine v. Bornstein 4 NY2d 241 N.Y. 1958-04-03 p. 505
Anglin v. Anglin 80 NY2d 553 N.Y. 1992-12-21 p. 505
In re Aaron J. 80 NY2d 402 N.Y. 1992-11-24 p. 505
People v. Cwikla 46 NY2d 434 N.Y. 1979-02-08 p. 505
Lutwak v. United States 344 US 604 SCOTUS 1953-02-09 p. 505
Darden v. Wainwright 477 US 168 SCOTUS 1986-06-23 p. 505
People v. Hopkins 58 NY2d 1079 N.Y. 1983-03-30 p. 505
People v. Galloway 54 NY2d 396 N.Y. 1981-11-24 p. 505
People v. Ashwal 39 NY2d 105 N.Y. 1976-04-01 p. 505
People v. Morgan 66 NY2d 255 N.Y. 1985-11-19 p. 505
People v. Calabria 94 NY2d 519 N.Y. 2000-04-06 p. 505
People v. Vargas 86 NY2d 215 N.Y. 1995-06-13 p. 505
People v. Ford 66 NY2d 428 N.Y. 1985-11-26 p. 505
People v. Malizia 62 NY2d 755 N.Y. 1984-05-10 p. 505
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 505
Jackson v. Virginia 443 US 307 SCOTUS 1979-06-28 p. 505
People v. Henderson 92 NY2d 677 N.Y. 1999-02-16 p. 505
In re Philip A. 49 NY2d 198 N.Y. 1980-01-08 p. 505
People v. Greene 70 NY2d 860 N.Y. 1987-11-24 p. 505
People v. Guidice 83 NY2d 630 N.Y. 1994-05-12 p. 505
People v. Brown 243 AD2d 749 N.Y. App. Div. 1997-10-09 p. 505
Delaware v. Van Arsdall 475 US 673 SCOTUS 1986-04-07 p. 505
People v. Stephens 84 NY2d 990 N.Y. 1994-12-22 p. 506
People v. Samms 95 NY2d 52 N.Y. 2000-06-13 p. 506
People v. Robinson 36 NY2d 224 N.Y. 1975-02-20 p. 506
People v. Wilder 93 NY2d 352 N.Y. 1999-05-04 p. 506
People v. Scarola 71 NY2d 769 N.Y. 1988-06-07 p. 506
In re the Claim of Klein 78 NY2d 662 N.Y. 1991-12-23 at 667 p. 506, p. 507
New York Public Interest Research Group, Inc. v. Town of Islip 71 NY2d 292 N.Y. 1988-02-11 p. 506
Durante v. Evans 94 AD2d 141 N.Y. App. Div. 1983-06-16 p. 506
Durante v. Evans 62 NY2d 719 N.Y. 1984-05-03 p. 506
People v. Polk 84 AD2d 943 N.Y. App. Div. 1981-11-13 p. 506
People v. Foster 64 NY2d 1144 N.Y. 1985-05-02 p. 506

Statutes and regulations cited

Judiciary Law p. 505, p. 506, p. 507