People v. Wells

941 N.E.2d 739, 15 N.Y.3d 927

• Court: New York Court of Appeals
• Decided: December 14, 2010
• Status: Published

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At trial, after some but not all jurors had been sworn, and while voir dire was ongoing, one of the sworn jurors advised a court officer that there was important information he neglected to tell the court. When questioned, the juror revealed that he worked the night shift and would be coming to court directly from work, raising concerns about his ability to stay awake during the trial (the juror explained that he had slept in the jury room the day before). Defense counsel argued that the juror was able to serve and could be ordered not to work nights until the trial ended. The court declined to issue such a directive and excused the juror based on a finding that he would be unable to remain sufficiently alert during court proceedings. We cannot say that the trial court—which was in the best position to assess the juror’s level of attentiveness—abused its discretion in discharging the juror after determining that he would be incapable of properly performing his duties.

On appeal, citing differences between the language in CPL 270.15 and 270.35, defendant asserts that the court lacked the authority to discharge the juror under the purportedly more narrow language in CPL 270.15. But defendant never referred to CPL 270.15 or relied on any restrictive statutory language in the trial court. Instead, defendant essentially argued against an incapacity discharge, contending that the juror was “able” to serve. Thus, defendant’s current claim is not preserved for our review. The dissent engages in an analysis of the differences between CPL 270.15 and 270.35—but neither party raised an argument in the trial court warranting such a discussion. Nor do we find, as the dissent suggests, that a court has “inherent authority” to discharge a sworn juror based on competing work commitments. CPL 270.15 permits discharge of a sworn juror based on incapacity and the discharge here emanated from the trial court’s concern that the juror would be incapable of remaining awake and attentive during the trial—an essential prerequisite of proper jury service.

Defendant’s contention relating to the trial court’s failure to charge an affirmative defense is similarly not preserved for review and his remaining pro se claims do not require reversal. Finally, we reject defendant’s challenge to the constitutionality of his adjudication as a persistent violent felony offender and persistent felony offender (see People v Bell, 15 NY3d 935 [2010] [decided today]; People v Quinones, 12 NY3d 116 [2009], cert denied 558 US —, 130 S Ct 104 [2009]).