Morgenthau v. Williams

229 A.D.2d 361, 646 N.Y.S.2d 669, 1996 N.Y. App. Div. LEXIS 8010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1996
• Status: Published

Opinions

—Application by the petitioner for an order and judgment prohibiting the respondent Justice from (a) accepting without further inquiry any juror’s claim that he or she could not serve if overnight sequestration of the jury should become necessary, (b) finding any waiver of the provisions of CPL 310.10 in the absence of an affirmative and express waiver on the record by each of their attorneys in the presence of and without the objection of the criminal defendants, (c) refusing to sequester any jury in the criminal proceeding in the absence of such affirmative and express waiver, and (d) refusing to obey the provisions of CPL 310.10 with respect to conditions of jury deliberations, is granted, on the law, the facts, and in the exercise of discretion, and the cross-motion by the respondent Justice to dismiss the petition denied, without costs or disbursements.

Pending before the respondent Justice is the criminal matter of People v Robinson and Mojica (Sup Ct, NY County, indictment No. 6710/95). Jury selection and trial were stayed by this Court on May 6,1996, pending the determination of the instant special proceeding. The defendants are charged with felonies relating to an armed robbery and the highest count against each defendant is robbery in the first degree, a class B violent felony. A mistrial was previously declared prior to the empanelment of an entire jury. Thereafter, the respondent asked each defendant if he were willing to waive sequestration during deliberations. Both indicated that they would not waive sequestration, and the respondent ruled that she would imply waiver if either defendant failed to obtain the removal of any juror who answered "yes” to question "number 12” asked of the jurors, i.e., "Is there any reason why you could not serve during an evening in which jury sequestration might become necessary? Or why you could not spend a night at a hotel if overnight sequestration of the jury should become necessary?” The Assistant District Attorney, who was assigned as trial prosecutor, then asked the court if there would be inquiry of those prospective jurors who answered number 12 affirmatively for the purpose of ascertaining the "nature of the problem.” The respondent refused any further inquiry, concluding that she did not think that mandatory sequestration was, in fact, constitutional since it discriminates against women. "Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers (Matter of Rush v Mordue, 68 NY2d 348, 352; Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, 40 NY2d 8, 13). The inquiry is not limited to whether the court has subject matter jurisdiction over the proceeding; 'prohibition is [also] available * * *to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction’ (La Rocca v Lane, 37 NY2d 575, 578-579, cert denied 424 US 968; see also, Matter of Proskin v County Ct., 30 NY2d 15, ; see generally, Comment, Writ of Prohibition in New York— Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 76-84; Wolfram, Ancient and Just’ Writ of Prohibition in New York, 52 Colum L Rev 334, 338-353). Thus, we have entertained prohibition to determine whether the court had exceeded its undoubted powers to control the conduct of counsel in the courtroom (see, La Rocca v Lane, supra) or to rule upon the sufficiency of Grand Jury evidence (Matter of Proskin v County Ct., supra).” (Matter of Holtzman v Goldman, 71 NY2d 564, 569.)

With these principles in mind, it is evident that prohibition can and should be employed in this matter to prevent the court from " 'exceeding its authorized powers in a proceeding over which it has jurisdiction’ ” (supra, at 569).

While the Criminal Procedure Law has recently been amended to permit some discretion with respect to sequestration, this is with respect to criminal prosecutions other than those including a count alleging a class A, B violent or C violent felony (see, L 1995, ch 83, § 209). Therefore, when a defendant is charged with a class B violent felony, as are the defendants herein, the court has no discretion other than to order the mandatory sequestration required by CPL 310.10. The failure of the court to proceed in accordance with that section mandates reversal of a defendant’s conviction (People v Coons, 75 NY2d 796, 797). While sequestration does not constitute a "fundamental” right of a criminal defendant (People v Agramonte, 87 NY2d 765, 770), the Criminal Procedure Law requires sequestration of a deliberating jury in cases involving counts such as those herein. The only exception to this rule appears to be when the criminal defendant expressly and affirmatively waives sequestration (People v Bello, 82 NY2d 862).

As detailed above, the respondent Justice has rejected the refusal of the defendants to waive sequestration. By concluding that she will not go beyond the statement of any juror that he or she could not serve if sequestration becomes necessary, the respondent has effectively ignored the mandate of the law, to wit, apply sequestration pursuant to CPL 310.10 regardless of an unparticularized objection by a juror. She has also declared that she will deny any challenge for cause made against any such prospective juror but if any such juror ultimately remained on the jury she will not sequester the jury. The dissent’s analysis fails to take into consideration that under the court’s procedure, both sides would be compelled to use up their preemptory challenges when challenges for cause would otherwise apply. Thus, the People might end up with a jury not of their choosing and an acquittal is not reviewable. It is clear that in so ruling, respondent Justice has acted or threatened to act without jurisdiction and in excess of her authorized powers. Concur—Sullivan, J. P., Rubin, Kupferman and Nardelli, JJ.