People v. Powell

Appellate Division of the Supreme Court of New York

People v. Powell

179 A.D.2d 599, 579 N.Y.S.2d 71, 1992 N.Y. App. Div. LEXIS 876

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 30, 1992

StatusPublished

Cited by2 cases

This text of 179 A.D.2d 599 (People v. Powell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Powell, 179 A.D.2d 599, 579 N.Y.S.2d 71, 1992 N.Y. App. Div. LEXIS 876 (N.Y. Ct. App. 1992).

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Opinions

After three days of trial in this prosecution for burglary, the case was adjourned over the weekend to the following Tuesday. The first order of business that day was an application by the prosecutor for a material witness order to obtain the testimony of one of the tenants of the burglarized apartment. After colloquy on that matter, the court told counsel that it had received a communication from one of the jurors that her husband had been hospitalized, and that she would not be coming to court that morning. The trial court had not inquired into the nature of the husband’s illness or the juror’s availability to attend the trial the next day. Later, some time after 12 o’clock, an alternate was seated over defendant’s objection.

In People v Page (72 NY2d 69), the Court of Appeals held that a trial court’s decision to dismiss a juror pursuant to CPL 270.35 must safeguard a defendant’s right to be tried by a particular jury in whose selection he had a voice. Factors to be considered in making such a determination include "the stage of trial, the expected length of the absence of the juror if known, whether the juror’s return is ascertainable and reasonably imminent and certain, whether reasonable attempts have been made to locate the absent juror, and other relevant circumstances such as the continued availability of key witnesses.” (People v Page, 72 NY2d, supra, at 73.) In our view, the discharge of the juror after such a short period of absence, without making any inquiry whether the juror might be available the next day, was precipitous, and violative of the principles enunciated in People v Page (supra). Accordingly, the judgment of conviction must be reversed, and a new trial [600]*600ordered. (People v Watkins, 157 AD2d 301, 309; People v Olaskowitz, 162 AD2d 322, lv withdrawn 76 NY2d 1023; People v Dunn, 169 AD2d 394.) Concur — Carro, J. P., Milonas and Rubin, JJ.

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After three days of trial in this prosecution for burglary, the case was adjourned over the weekend to the following Tuesday. The first order of business that day was an application by the prosecutor for a material witness order to obtain the testimony of one of the tenants of the burglarized apartment. After colloquy on that matter, the court told counsel that it had received a communication from one of the jurors that her husband had been hospitalized, and that she would not be coming to court that morning. The trial court had not inquired into the nature of the husband’s illness or the juror’s availability to attend the trial the next day. Later, some time after 12 o’clock, an alternate was seated over defendant’s objection.

In People v Page (72 NY2d 69), the Court of Appeals held that a trial court’s decision to dismiss a juror pursuant to CPL 270.35 must safeguard a defendant’s right to be tried by a particular jury in whose selection he had a voice. Factors to be considered in making such a determination include "the stage of trial, the expected length of the absence of the juror if known, whether the juror’s return is ascertainable and reasonably imminent and certain, whether reasonable attempts have been made to locate the absent juror, and other relevant circumstances such as the continued availability of key witnesses.” (People v Page, 72 NY2d, supra, at 73.) In our view, the discharge of the juror after such a short period of absence, without making any inquiry whether the juror might be available the next day, was precipitous, and violative of the principles enunciated in People v Page (supra). Accordingly, the judgment of conviction must be reversed, and a new trial [600]*600ordered. (People v Watkins, 157 AD2d 301, 309; People v Olaskowitz, 162 AD2d 322, lv withdrawn 76 NY2d 1023; People v Dunn, 169 AD2d 394.) Concur — Carro, J. P., Milonas and Rubin, JJ.

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Bluebook (online)

179 A.D.2d 599, 579 N.Y.S.2d 71, 1992 N.Y. App. Div. LEXIS 876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-powell-nyappdiv-1992.

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