AD1 order dated January 26, 2016, affirming judgment of conviction. Decision below: 135 A.D.3d 608, 24 NYS2d 48. Tom (AD dissenter), J., granted leave March 3, 2016.

ISSUES PRESENTED: (1) Whether the court violated the controlling statute and appellant’s jury rights by refusing to discharge, as grossly unqualified, a deliberating juror who unequivocally declared her inability to set aside her emotions and decide the case solely on the facts and the law. (2) Whether the court’s denial of an intoxication charge lacked a lawful basis and requires reversal. (3) Whether appellant’s warrantless arrest violated Payton v. New York. (Assigned counsel: Susan H. Salomon & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue before the Court: Whether a deliberating juror was “grossly unqualified” to continue serving when she forthrightly and persistently declared that she could no longer separate her emotions from her ability to deliberate fairly?

 

Held: “[U]nder the unique circumstances presented here,” yes.  The juror did not additionally need to state an “actual bias” against the defendant.

 

CAL Observes: The unanimous opinion took pains to limit its holding to the unique facts here, since it was not fully comfortable having to second guess the trial judge.  Interestingly, while the opinion noted that trial judges have “latitude” in making this kind of factual determination, it also noted that the issue was one of law, subject to de novo appellate review (appellate lawyers, take note!).