CPL 360.25 (1) (e)

This is a proceeding wherein the defendant moves pursuant to CPL 330.30 and 370.10 for an order setting aside the verdict upon the grounds that (1) the court committed reversible error by improperly allowing the People’s challenge “for cause” of a prospective juror and the People’s peremptory challenges were ultimately exhausted before jury selection was complete; (2) the defendant was deprived of a fair trial because of the People’s prosecutorial misconduct during summation; and (3) improper conduct by a juror during deliberations, out of the presence of the court, may have affected a substantial right of the defendant.

The People oppose the defendant’s motion.

The defendant was charged by way of a simplified traffic information, with a violation of Vehicle and Traffic Law § 1192 (2) – operating a motor vehicle while intoxicated per se; that is a blood alcohol content of .08% or more by weight of alcohol in his blood, and Vehicle and Traffic Law § 319 (1)-operating a motor vehicle without insurance in January 2004.

After a two-week jury trial, the jury returned a verdict of guilty on the charge of Vehicle and Traffic Law § 1192 (2) – driving while intoxicated per se in February 2005.

The defendant filed the instant motion to set aside the verdict, pursuant to CPL 330.30 and 370.10 upon the above-mentioned grounds in May 2005.

The defendant has not been sentenced.

In the case at bar, during jury selection, a group of 14 prospective jurors were seated in the jury box, addressed by the court and questioned by the parties. At one point, the People requested that a prospective juror be excluded from service “for cause”. As said the prospective juror had served on a previous jury wherein the defendant, in the previous case, had been charged with Vehicle and Traffic Law § 1192 (2) which is the same one as the charge in the instant case.

The defense counsel questioned whether the juror had to be removed as a matter of law. The court indicated “yes.” The prospective juror was excused from service, by this court, “for cause,” as a matter of law, pursuant to CPL 360.25 (1) (e). After a discussion off the record, the defense counsel stated on the record that he did not consent to the court’s ruling. The court’s ruling was based upon the plain reading of CPL 360.25 (1) (e). The court found that said ruling was appropriate, especially in light of the recent change in the specific driving while intoxicated statute, in which the defendant was charged.

Prior to the end of jury selection, the People had exhausted all of their peremptory challenges. Moreover, before the entire jury panel was sworn, the defense counsel again stated its objection to the court ruling, allowing the People’s challenge “for cause,” pursuant to CPL 360.25 (1) (e).

CPL 360.25 (1) mandates the New York statutory grounds for challenges “for cause” of a prospective juror, in a criminal case involving charges by way of an information. CPL 360.25 (1) (e) reads, in pertinent part, that:

“A challenge for cause is an objection to a prospective member of the jury and may be made only on the ground that:

“He served on a trial jury in a prior civil or criminal action involving the same conduct charged; or where a prosecutor’s information was filed at the direction of a grand jury, he served on the grand jury which directed such a filing.

Here, the defendant interprets the phrase “same conduct charged” to mean that the prospective juror in the instant case served as a juror in an earlier proceeding involving the same conduct charged, with the same defendant. The People claim that the defendant did not preserve the issue for appellate review and that the court should apply the plain reading of the statute and conclude the “same conduct charged” to mean that the prospective juror served as a juror at a previous trial involving the same type of crime.

The first issue raised by the People is whether a motion to set aside a verdict, pursuant to CPL 330.30 (1), requires preservation of the objection, in the trial record, in order for the court to consider the motion to set aside the verdict.

CPL 330.30 sets forth the statutory grounds upon which a judge may set aside or modify a guilty verdict before sentence. The statute is applicable to the instant case, pursuant to CPL 370.10. Subdivision (1) of CPL 330.30 reads, in relevant part, as follows:

“Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.”

Thus, CPL 330.30 (1) permits a trial judge to set aside a verdict only as a matter of law. Appellate review on the law requires the issue be preserved as ruled in People v Thomas. Thus, a timely protest is an essential prerequisite for relief under a CPL 330.30 (1) claim of an error of law, unless the error has deprived the defendant of a fundamental right akin to People v Davidson, People v Padro and People v Antommarchi. A question of law is preserved for appellate review when the trial court is apprised of the objection and afforded an opportunity to cure the error as held in People v Wales. This court has found two appellate level cases which held that a timely objection to disqualify a juror is required during jury selection; otherwise no judgment would be safe from attack.

In the instant DWI case, the court finds that defense counsel had put this court on notice that the defense did not agree with the court’s ruling to allow the People’s challenge “for cause.” The record reveals that after this court made the determination to allow the People’s challenge “for cause,” the defense counsel stated to the court that we’re not consenting. Moreover, before the entire jury was sworn, defense counsel again made clear his objection to the court’s ruling. Thus, the court finds that the defendant did timely object to the court’s ruling.

In order to preserve an erroneous ruling for a challenge “for cause” during jury selection, the New York statutory scheme requires the People to have exhausted their peremptory challenges before completion of jury selection.

CPL 270.20 (2), applicable to the instant case pursuant to CPL 360.25 (2), reads, in relevant part that an erroneous ruling by the court allowing a challenge for cause by the people does not constitute reversible error unless the people have exhausted their peremptory challenges at the time or exhaust them before the selection of the jury is complete. Subdivision (2) of CPL 270.20 further states that the denial of a defendant’s for cause challenge is not reversible error unless the defendant has exhausted all peremptory challenges or uses a peremptory challenge against the disputed juror and later exhausts all such challenges.

The statute contemplates remedial action by the appellate court when the trial court improperly grants or denies a challenge for cause.

In the instant case, the record is clear that prior to the end of jury selection, the People had exhausted all of their peremptory challenges and thus the court’s ruling is preserved for appellate review.

Accordingly, this court will consider the defendant’s argument with regard to the court’s interpretation of CPL 360.25 (1) (e).

The courts may look behind the words of a statute when the law itself is doubtful or ambiguous. The purpose and object of a statute may properly be considered as an aid to its interpretation. Where there is doubt as to the meaning of the language of a statute, various extrinsic matters throwing light on the legislative intent may be considered by the courts. Resort may be had to any authoritative source of information, including documents, and the court may also make use of general facts of common knowledge or public notoriety. Further, statements of the draftsman of the statute are properly considered in determining the legislative intent.

The court finds that the “plain meaning rule” is not applicable to the case at bar as the phrase “same conduct charged” contained in CPL 360.25 (1) (e) may arguably admit more than one meaning. Therefore, it is appropriate for the court to interpret CPL 360.25 (1) (e) to give effect to the Legislature’s general purpose.

People v. Beirati interpreted CPL 270.20 (1) (e), a section of the CPL which prescribes one of the grounds for a challenge “for cause” of a prospective juror for a criminal case involving charges by way of indictment in superior court, not by way of an information. In 1987, CPL 270.20 (1) (e) was worded similar to CPL 360.25 (1) (e), and read as follows:

“A challenge for cause is an objection to a prospective juror and may be made only on the grounds that he served on the grand jury which found the DUI indictment in issue or served on a trial jury in a prior civil or criminal action involving the same conduct charged in such indictment.”

In the Beirati case, the issue presented was whether a prospective juror who had previously served on a jury, where the indictment charged in the previous case was a crime of attempted murder, was subject to challenge “for cause” in a subsequent trial for a different defendant charged by an indictment for attempted murder pursuant to CPL 270.20 (1) (e). The court concluded that the People’s challenge “for cause” should be denied. The court in Beirati found the phrase the “same conduct charged” to mean more than the same general type of accusation. The court held that the “same conduct charged” was to be narrowly interpreted to mean “same alleged incident and the same acts in connections therewith alleged to have been committed.”

The court notes that CPL 270.20 (1) (e), which is applicable to charges by way of an indictment was amended because of the Beirati decision. However, the Legislature did not amend CPL 360.25 (1) (e), which is applicable to charges by way of an information.

Was the Legislature’s failure to amend CPL 360.25 (1) (e) to be viewed as a legislative oversight or is such failure to amend an indication that such exclusion was intentional? The hoary maxim of statutory construction “expressio unius est exclusio alterus,” literally means the expression of one is exclusion of the other and was legislatively canonized in New York in McKinney’s Consolidated Laws of NY, Book 1, Statutes § 74. It states, in relevant part, that: The failure of the Legislature to include a matter within a particular statute may be construed as an indication that its exclusion was intended.”

Thus, a court cannot read into a statute a provision which the Legislature did not see fit to enact. However, when legislative intent is clear, an omission in a statute may be considered an inadvertence and supplied by the courts and words obviously omitted by mistake may be supplied to prevent inconsistency and unreasonableness.

In the instant case, the court holds that the Legislature’s failure to amend the phrase “same conduct charged” used in CPL 360.25 (1) (e) was caused by the Legislature’s inadvertence and not by design. The Legislature found the phrase “same conduct charged” used in CPL 270.20 (1) (e) to be ambiguous. The same exact phrase is used in CPL 360.25 (1) (e). CPL 360.25 (1) (e) creates the same ambiguity that CPL 270.20 (1) (e) did prior to the 1989 amendment. Certainly the Legislature could not have intended the statute dealing with misdemeanors to have a broader reach of juror disqualification than the statute dealing with felony.

Noteworthy is the fact that the federal courts have consistently followed a general rule that prior jury service on a similar case arising out of a separate and distinct set of circumstances, even though the offenses charged are the same offenses, is an insufficient basis for a challenge for cause, unless it can be shown that such prior service actually biased the prospective juror.

The DWAI court holds that the phrase “same conduct charged” does not merely mean the same type of charge. Rather, said phrase should be narrowly interpreted to mean the same earlier exposure to the facts, involving the same defendant. To give this statute any other construction, would give an ambiguous phrase scope beyond that intended by the Legislature.

The court observes that the juror should have been questioned about his ability to render an impartial verdict despite his past experience as a juror. The prospective juror should not have automatically been discharged for service merely because he sat on a previous DWI or Driving While Intoxicated trial. Accordingly, it was an error for this court to excuse this prospective juror “for cause,” pursuant to CPL 360.25 (1) (e).

Moreover, this error was a reversible error, as set forth in CPL 270.20 (2), applicable to this case pursuant to CPL 360.25 (2), because the People had exhausted their peremptory challenges before jury selection was complete.

Based upon the foregoing, this portion of the defendant’s motion to set aside the verdict is hereby granted. The court reverses the verdict and a new trial is ordered.

In the second portion of the defendant’s motion to set aside the verdict, the defense counsel claims that the People committed reversible error by (1) in summation telling the jury that the defendant’s testimony was a “nice, pretty tale” or “nice tale,” or “less than the truth” or “worthless” or “didn’t happen” as a matter of “fact,” and also vouching for the People’s witnesses; (2) commenting on the defendant’s silence and persisting even after objection was sustained; (3) denigrating the defense and defense counsel. The People claim that the People’s arguments made in summation were fair comments based on the evidence presented at trial and were made in response to the arguments presented during defense counsel’s summation.

The defendant’s second ground for setting aside the verdict is also pursuant to CPL 330.30 (1). Again, a trial court’s power to set aside a verdict under this section arises only where an appellate court would be required, as a matter of law, to reverse or modify the judgment of conviction as ruled in People v Tomas. As set forth previously, appellate review on the law requires the issue be preserved. Thus, this court must examine whether the defendant preserved for appellate review his challenges to the People’s summation.

The defense counsel failed to specifically object to most of the comments made by the prosecutor during summation or seek further relief. Accordingly, the alleged improprieties in the prosecutor’s summation were largely unpreserved for appellate review.

The court denies defendant’s motion to set aside the verdict.

In the third argument raised by the defendant, in its motion to set aside the verdict, the defense counsel argues that the verdict should be set aside pursuant to CPL 330.30 (2), due to juror misconduct. The defense claims that juror misconduct occurred because a juror allegedly relied on per-drink alcohol content data that was not in evidence. The People claim that defense counsel’s affidavit of the juror’s alleged misconduct is hearsay and the alleged misconduct merely a sharing of the juror’s past experience.

CPL 330.30 (2) permits the court, after rendition of the verdict, but before sentencing, upon motion of the defendant, to set aside a verdict if:

“during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict.”

In order to set aside a verdict based upon juror misconduct, the defendant must demonstrate a substantial risk of prejudice- exists when a juror’s or the jury’s conduct colors the views of the other jurors as well as his/her own.

In the instant case, this portion of the defendant’s motion to set aside the verdict based upon juror misconduct was only supported by an affidavit of defense counsel. No explanation was offered as to why affidavits could not be obtained from the juror who allegedly acted inappropriately or from jurors that observed other jurors acting inappropriately.

Accordingly, the court dismisses the defendant’s motion to set aside the verdict based upon juror misconduct.

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