Saturday, March 03, 2007

AD2: Decisions for February 27, 2007

Juror who has seen witness "numerous times" is grossly unqualified to serve; no inquiry necessary where defendant's family allege juror was sleeping

People v Lennon, 2007 NY Slip Op 01759 [available here]

After a witness testified for the prosecution, a juror informed the court that he had seen the witness "'down by the bay numerous times'" and had "conversed with him." (Lennon, 2007 NY Slip Op 01759.) When asked if his acquaintance with the witness would "influence his deliberations", the jury said "he did not 'know how to answer'." (Id. at __.) The trial court found the juror "grossly unqualified" to continue service under CPL 270.35 and removed him from the jury. The Second Department affirmed. "The trial court was justified in concluding the juror was 'grossly unqualified' to continue serving based on his relationship with the witness and his inability to state that he would not be influenced by the relationship." (Id. [citations omitted].) Hard to see how this squares with Buford, where the Court of Appeals held, "[i]n concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror's knowledge will prevent her from rendering an impartial verdict." (People v Buford, 69 NY2d 290 [1987].)

The court replaced the juror with an alternate, at which point "members of the defendant's family reported that the alternate juror had been sleeping [...]." Rather than conduct an inquiry with the juror, the trial court "noted that it had a better view of the alternate than the defendant's family and that, inter alia, it believed that the alternate juror had not been sleeping." (Id.) Factual disputes resolved in favor of the person wearing the robe, I guess. Would it really have been that hard to call the alternate out and ask her if she dozed off? Not necessary, says the Second Department; "[a]s the court had the benefit of its own observations, further inquiry was not required." (Id.)

Defendant not entitled to vacatur of guilty plea on B violent felony where postrelease supervision not included as part of plea or sentence

People v Wilson, 2007 NY Slip Op 01765 [available here]

Defendant pleaded guilty to Assault in the First Degree (a B violent felony), and was promised a determinate 18 year sentence. Postrelease supervision was not a term of the plea, and no postrelease supervision was mentioned at sentencing nor included in the "court's order of commitment." (People v Wilson, 2007 NY Slip Op 01765 at __.) Since a term of postrelease supervision is mandatory upon a conviction for Assault 1st, defendant made a motion to vacate his plea based on an illegal sentence. The trial court denied the motion, and the Second Department affirmed. (Id. at __.) The Court reasoned that, since postrelease supervision was neither part of the plea nor the sentence imposed, "the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision." (Id. at __.) And since "the defendant received precisely the sentence for which he bargained", the Court found no reason to vacate his plea. (Id at __.) In other words, defendant is entitled to specific performance on his bargain, even if the sentence he agreed to is illegal.

The Fourth Department probably would have reached a different result. (See, e.g., People v Davis, 2007 NY Slip Op 00929 ["Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand."] [bracketed material in original].)