New York Court of Appeals Announces When an Alternate Juror Is ‘Discharged’ and no Longer ‘Available for Service’
by Douglas Ankney
The Court of Appeals of New York ruled that under state law an alternate juror discharged from service cannot subsequently be seated to deliberate the case.
Hasahn D. Murray and two codefendants were tried on assault and robbery charges. After counsel for both parties had given their summations to the jury, the trial judge addressed the two alternate jurors: “I can’t let you go without thanking you and telling you [that] you are excused from this case and from jury duty for about six years, that is the good news. You are excused now.” The court sent the jury to lunch, and the two alternate jurors left the courthouse.
During the break for lunch, the court learned that one of the trial jurors had discussed the case at a social gathering. The court dismissed the trial juror and – over defense counsel’s objection – contacted the two discharged alternate jurors, confirmed they had not discussed the case nor formed an opinion, and directed them to return to the courthouse the following morning. The next morning, the court re-seated the first alternate juror on the jury. The jury then began deliberations, ultimately finding Murray guilty of two counts of robbery in the second degree and assault in the second degree.
Murray appealed, arguing, inter alia, that the dismissed juror could not subsequently be seated on the jury and that Murray was entitled to a mistrial. A divided Appellate Division affirmed, but the dissenting justice granted Murray leave to appeal to the Court of Appeals.
The Court observed “[i]n determining whether the substitution of the recalled alternate juror was permissible, we turn first to the plain language of the relevant provisions of the Criminal Procedure Law [“CPL”].” Under CPL 270.30(1), a trial court “may in its discretion” select up to six alternate jurors who “must take the same oath as the regular jurors” and be qualified in the same manner. At the point the jury retires for deliberations, the court’s discretion is further limited to either discharging the alternates with the consent of the parties or direct the alternates not to discuss the case and order they be kept separate and apart from the trial jurors. Id.
When a trial juror is unable to continue serving or has committed substantial misconduct that in and of itself does not require a mistrial, the trial court must discharge that juror and may, under limited circumstances, replace the discharged juror with an alternate as per CPL 270.35(1):
“If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror whose name was first drawn and called, provided, however, that if the jury has begun its deliberations, the defendant must consent to such replacement ... If no alternate is available, the court must declare a mistrial....” (emphasis supplied)
The Court explained that “[a]s used in the statute, the terms ‘discharged’ and ‘available for service’ with respect to alternate jurors are mutually exclusive.” That is, an alternate juror cannot be both “discharged” while also remaining “available for service,” reasoned the Court, citing a provision added to the statute in 1995 (with regard to alternates in capital cases) emphasizing the relationship between the terms – alternate jurors in such cases “shall not be discharged and shall remain available for service,” demonstrating that “available for service” entails “not be[ing] discharged.” 1995 McKinney’s Session Laws of NY, Ch. 1, section 16.
Thus, the Court concluded that “where the alternate jurors have been discharged, the court’s sole remedy is to declare a mistrial.” CPL 270.35(1).
However, that does not end the inquiry because “we must determine when an alternate juror is in fact ‘discharged’ from service,” the Court stated. The Criminal Procedure Law does not define the term, so the Court sought guidance from Black’s Law Dictionary (11th ed. 2019), which defines the discharge of a juror as relieving the “juror … from further responsibilities in a case.” See People v. Aleynikov, 104 N.E.3d 687 (N.Y. 2018). The Court instructed that under this definition, an alternate juror is “discharged” when the court states on the record that the juror has no further responsibilities in the case. It adopted this bright-line rule because it “is consistent with the relevant CPL provisions and with our State Constitution.” See CPL 270.35(1); People v. Ryan, 224 N.E.2d 710 (N.Y. 1966); see generally People v. Page, 665 N.E.2d 1041 (N.Y. 1996).
Applying the newly announced rule to this case, the Court stated that “there can be no doubt that when the trial judge thanked the alternate jurors for their service and ‘excused [them] from this case,’ the alternate jurors were discharged.” At that moment, they were no longer jurors and were not available for service. See Ryan. Thus, the Court held the trial court erred by replacing the dismissed trial juror with an alternate.
Accordingly, the Court reversed the order of the Appellate Division and ordered a new trial. See: People v. Murray, 198 N.E.3d 466 (N.Y. 2022).
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