People v. Hasahn Murray (decided October 20, 2022)

Issue: This appeal presented the question of whether a judge had the power to return
a discharged alternate juror to the jury when a seated juror was unable to continue
serving.

Held: Once an alternate juror has been discharged, that juror may not be seated on
the jury.

CAL observes: This rare unanimous favorable-to-the-defense opinion written by
Judge Garcia reveals more about AD1’s muddled reasoning than any groundbreaking
decisionmaking by NYCA.

After the completion of summations, but before the jury retired to deliberate, the
court discharged the alternate jurors, thanking them for their service, and sending
them home. Before deliberations began, the parties agreed that a sitting juror had to
be dismissed because they improperly discussed the case at a social gathering. When
the sitting juror was dismissed, the court suggested seating one of the discharged
alternates. Defense counsel objected. After confirming that one of the alternates had
not discussed the case, the court seated the alternate, finding that it had the discretion
to do so.

AD1 affirmed, finding that it was an appropriate exercise of discretion, because the
alternate juror remained “available for service.”

As NYCA held, the court had no discretion to seat a previously discharged juror. As
stated in the relevant statute, CPL 270.35(1), once an alternate has been discharged,
they are no longer available for service. Releasing an alternate is a discharge,
regardless of whether the court uses that term. CPL 270.30(1) provides the court with
two distinct options regarding alternate jurors when a jury retires to deliberate: it can
either discharge them (with the parties’ consent) or retain them and keep them
separate and apart from the deliberating jury—that is, keep them available. Although
the jury here had not yet begun to deliberate, the release of the alternates was still a
discharge. Once discharged, the alternates were no longer available to serve, and the
court had no discretion to seat them.

That an AD1 majority concluded otherwise, even over a Justice Renwick dissent,
shows its willingness to find discretionary authority when the plain language of the
statute offers none.